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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. Democrats and Republicans

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Speaker 1: are at a standstill over what the impeachment trial of

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Speaker 1: President Trump will look like, but one thing is certain,

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Speaker 1: the Chief Justice will preside over it. In his year

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Speaker 1: end report, Chief Justice John Roberts did not refer to

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Speaker 1: the impeachment trial, of course, but there was plenty in

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Speaker 1: his remarks to allow commentators to see subtext about the president,

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Speaker 1: as Roberts urged his fellow judges to promote public confidence

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Speaker 1: in the judiciary. Joining me as constitutional law expert Michael Dorff,

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Speaker 1: a professor at Cornell Law School. So many people are

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Speaker 1: looking at the subtexts in the Chief justices year end report,

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Speaker 1: but let's start with the actual text it's self and

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Speaker 1: his focus on the need for civic education. Cific education

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Speaker 1: is one of those things, like apple pie, that everybody

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Speaker 1: is for. I suppose the idea here is that many

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Speaker 1: Americans are unfamiliar with how our basic institutions, especially the

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Speaker 1: Court's function, and the Chief Justice is certainly right about that.

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Speaker 1: I'm not sure that this is a new problem or

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Speaker 1: that it's a newly intense problem. But you know, if

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Speaker 1: you look at survey data going back decades that asks

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Speaker 1: people about things like, you know, can you name one

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Speaker 1: or more justices of the Supreme Court, how many branches

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Speaker 1: of government? Who are your senators? They reveal very high

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Speaker 1: levels of ignorance. And so it is often said that

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Speaker 1: this reflects a change from some past moments when civics

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Speaker 1: was part of the mandatory education curriculum. But in any event,

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Speaker 1: whether or not it reflects a change, I agree with

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Speaker 1: the Chief Justice that it is important in a democracy

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Speaker 1: for the people who are making the decisions about whom

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Speaker 1: to elect to know a little bit about how our

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Speaker 1: institutions work. So I basically agree with him as I said,

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Speaker 1: it's very hard to disagree with the proposition that there

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Speaker 1: ought to be an informed citizenry about how our institutions

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Speaker 1: of government function. The report goes on to praise various

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Speaker 1: efforts by members of the federal judiciary, including the Supreme Court,

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Speaker 1: but focusing mostly on the lower federal courts. In creating programs,

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Speaker 1: in using new media, and volunteering their time. And I

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Speaker 1: would say that what stands out to me is the

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Speaker 1: very self conscious effort on the part of Chief Justice

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Speaker 1: Roberts to be nonpartisan in this so he names judges

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Speaker 1: and justices who are thought of as liberals as well

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Speaker 1: as conservatives. And the picture that emerges is of one big,

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Speaker 1: happy family of federal judges and justices, all doing their

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Speaker 1: darndst to do justice and in their spare time to

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Speaker 1: teach the American people about how the justice system works.

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Speaker 1: The Chief praised the quote current chief Judge of the

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Speaker 1: District of Columbia Circuit for his work tutoring at a

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Speaker 1: local elementary school. That chief judge is Merrick Garland, whose

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Speaker 1: nomination to the Supreme Court was famously held up by

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Speaker 1: Mitch McConnell. Do you read anything in that? Oh? Sure,

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Speaker 1: that didn't escape anybody's notice. I mean, it is curious

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Speaker 1: that he didn't mention Judge Garland by name, but he

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Speaker 1: didn't mention any of the lower federal court judges by name.

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Speaker 1: As far as I could tell. He did name check

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Speaker 1: one of his current colleagues, Justice Sun of my Oor,

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Speaker 1: but it clearly I think was meant to send this

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Speaker 1: signal that whatever political disagreements or rancor exists about the

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Speaker 1: federal judiciary in our elected institutions, meaning the Presidency and

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Speaker 1: the Senate here doesn't affect the judges and justices. To

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Speaker 1: borrow a metaphor that Justice Thomas used when he was

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Speaker 1: a nominee to the Supreme Court, one gets the sense

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Speaker 1: that Chief Justice Roberts thinks that the judges and justices

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Speaker 1: quote stripped down like a runner, meaning they take off

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Speaker 1: their prior political clothing, whatever it was, to become sort

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Speaker 1: of neutral arbiters of the law. And that's consistent with

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Speaker 1: the Chief Justice his own confirmation testimony in which he

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Speaker 1: said that the job of a judge is not to

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Speaker 1: play the game, but it's like an umpire simply calling

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Speaker 1: balls and strikes. And so I think the prey days

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Speaker 1: for Judge Garland is of a piece with the agenda

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Speaker 1: of Chief Justice Roberts to try to portray an image

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Speaker 1: of the federal courts and the Supreme Court as a

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Speaker 1: political Do you see echoes of his statement that he

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Speaker 1: made in response to uh statement by President Trump where

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Speaker 1: he said there are no Obama judges, Bush judges or

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Speaker 1: Clinton judges. Oh absolutely. I mean I have a one

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Speaker 1: of the things I do in my spare time as

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Speaker 1: I write a column for Verdict, which is an online

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Speaker 1: magazine of legal commentary, and my column coming out on

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Speaker 1: Wednesday of this week is titled is John Roberts a

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Speaker 1: closet never Trumper? Because I think that that's clearly right.

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Speaker 1: I think that he sees this president as viewing the

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Speaker 1: courts through an inappropriately political lens, and this is part

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Speaker 1: of his pushback against that. The line that stood out

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Speaker 1: to me is, quote, in our age, when social media

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Speaker 1: can instantly spread rumor and false information on a grand scale,

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Speaker 1: the publics need to understand our government and the protections

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Speaker 1: it provides is ever more vital. Is that also? Uh? Yep,

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Speaker 1: that's not That's another line I quote in my column, right.

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Speaker 1: I mean, the on a grand scale, any tweet can

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Speaker 1: go viral. You or I can you know, tweet something

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Speaker 1: out and if it has an appropriately funny cat video

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Speaker 1: attached or whatever, then we'll get thousands, tens of thousands,

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Speaker 1: maybe even hundreds of thousands of likes and retweets. But

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Speaker 1: the president has a much bigger bullhorn on Twitter, and

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Speaker 1: so I think that's exactly what the Chief Justice are

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Speaker 1: referring to by a grand scale. Now it has uh

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Speaker 1: patina of plausible deniability about it could just be about,

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Speaker 1: you know, misinformation by anybody, but it's hard to read

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Speaker 1: that as not containing a veiled reference to President Trump.

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Speaker 1: I've been talking to Professor Michael Dorff of Cornell Law

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Speaker 1: School about Chief Justice John Roberts, who has become the

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Speaker 1: nation's champion of judicial independence. Have we seen that judicial

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Speaker 1: independence in his work as Chief Justice? So I want

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Speaker 1: to give a qualified yes as an answer to that question. There's,

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Speaker 1: in my view, a lot of people who look to

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Speaker 1: some of the output of the Roberts Court see in

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Speaker 1: him a kind of political actor in two ways. One

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Speaker 1: is that, of course he is a fairly conservative, just

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Speaker 1: as he's the least conservative of the current Republican appointees,

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Speaker 1: but he is still conservative by recent historical standards. And second,

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Speaker 1: they sometimes I think, portray him as voting in ways

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Speaker 1: that are meant to enhance the Court's prestige and legitimacy

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Speaker 1: rather than a poading to the law. So you saw

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Speaker 1: a lot of that. After the decision upholding Obamacare, people

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Speaker 1: thought that Roberts had switched sides because he thought it

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Speaker 1: would look bad for the Court to be striking down

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Speaker 1: a democratic administration's signature. Plant I happen to disagree with that.

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Speaker 1: I think that Chief Justice Roberts, like virtually every judge

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Speaker 1: and justice, tries to do justice even handedly. But I

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Speaker 1: want to qualify that by saying that the law contains

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Speaker 1: numerous ambiguities and gaps, and so it's inevitable that when

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Speaker 1: a person acting in good faith tries to clarify the

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Speaker 1: ambiguities and fill those gaps, his or her priors, that

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Speaker 1: is to say, the commitments that they have on important

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Speaker 1: issues like abortion or affirmative action, or the death penalty

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Speaker 1: or gay rights, whatever it is, that those priors will

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Speaker 1: affect how they fill the gaps. And so I think

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Speaker 1: that the Chief Justice is small key political in the

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Speaker 1: same way that all judges and justices are, and that

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Speaker 1: when he tries to portray the courts as just following

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Speaker 1: the law, the real problem there is not that the

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Speaker 1: justices are secretly pushing a political agenda. The problem is

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Speaker 1: that he doesn't recognize how much politics is sort of

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Speaker 1: necessarily baked into the law. Part it seems ironic that

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Speaker 1: he's going to have to preside over one of the

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Speaker 1: most political events of the year, if not the decade,

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Speaker 1: the impeachment trial. Ironic perhaps, but it's you know, it's

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Speaker 1: the constitutional design. And the truth is that the presiding

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Speaker 1: Chief Justice doesn't do very much. Those of your listeners

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Speaker 1: who are old enough to recall the Clinton impeachment will

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Speaker 1: remember that Chief Justice Ranquist made the most news for

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Speaker 1: the stripes he put on his robe when he sat

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Speaker 1: as the presiding Justice. The only job of the presiding

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Speaker 1: officer is to rule on objections, but of course he

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Speaker 1: can be overruled by a simple majority, and so John

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Speaker 1: Roberts is there in a kind of ceremonial role. Turning

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Speaker 1: to the Supreme Court's term, this term includes cases on

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Speaker 1: lgbt Q rights, abortion, gun rights. Is this the most

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Speaker 1: challenging term that Roberts has had to face or do

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Speaker 1: you see others that were perhaps as challenging. You know,

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Speaker 1: it's hard to know. I think it's certainly one of

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Speaker 1: the most challenging. I do think that the two thousand

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Speaker 1: eleven term was quite tough for him, given the stakes

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Speaker 1: of the Affordable Care Act case, but which by the way,

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Speaker 1: could be coming back to the Supreme Court relatively soon.

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Speaker 1: It might not make it this term. Yeah, but you know,

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Speaker 1: sometimes the Court finds ways of ducking hard questions and

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Speaker 1: so we'll see. Right. So, in the gun rights case

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Speaker 1: you mentioned, it's very easy for the Court to dismiss

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Speaker 1: the case as moot, should it choose to. In the

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Speaker 1: abortion case, it's a little bit harder, but I think

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Speaker 1: that they're unlikely to officially overrule Roe v. Wade or

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Speaker 1: planned parented against Casey or Whole Woman's Health, which are

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Speaker 1: the cases that follow on it. So there are ways

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Speaker 1: that the Court can de escalate if it so chooses. Finally,

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Speaker 1: the question has been raised over and over about whether

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Speaker 1: the Supreme Court has become too political, and you wrote

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Speaker 1: an article a few months ago that explains how the

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Speaker 1: Supreme Court has always been political. Tell us a little

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Speaker 1: bit about that. So again, I want to refer back

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Speaker 1: to what I said earlier. There are two senses we

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Speaker 1: can use of political. One is sort of partisan political,

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Speaker 1: and I think the Supreme Court has from time to

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Speaker 1: time been a little bit partisan political. You know, the

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Speaker 1: Bush by Gore case is an example where I think

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Speaker 1: the critics of the Court are right. But for the

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Speaker 1: most part, what we mean when we say the Court

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Speaker 1: is political, is that the justice is way in on

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Speaker 1: questions that are politically contentious. But that's been going on

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Speaker 1: basically since the very beginning of the country. You can

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Speaker 1: look at key episodes during the Chief justiceship of John Marshall,

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Speaker 1: when there were serious threats that he would be impeached

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Speaker 1: if he ruled too strongly against the Jefferson administration. Chief

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Speaker 1: Justice Tawny's decision in the dread Scott case arguably precipitated

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Speaker 1: the Civil War. During the first third beginning of the

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Speaker 1: second third of the twentieth century, the Court was striking

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Speaker 1: down progressive legislation and FDR tried to pack the courts.

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Speaker 1: You know, there were signs calling for the impeachment of

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Speaker 1: Earl Warren throughout the South in the nineteen fifties and

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Speaker 1: nineteen sixties during the Civil rights era. So political controversy

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Speaker 1: is nothing new for the Supreme Court. What I think

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Speaker 1: is a little bit unusual. You know, our current circumstances

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Speaker 1: is that the five most conservative justices are all Republican appointees,

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Speaker 1: and the foremost liberal justices are all Democratic appointees, so

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Speaker 1: that the ideological divisions on the Supreme Court very closely

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Speaker 1: tracked or exactly track the partisan differences that can be

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Speaker 1: attributed to them. That wasn't always true. So the leaders

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Speaker 1: of the Supreme Court during the Civil Rights era were

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Speaker 1: Earl Warren and William Brennan, both of whom were Republican appointees,

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Speaker 1: and up until the retirements of Justices Stevens and Suitor

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Speaker 1: you had fairly liberal Republican appointees on the Supreme Court.

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Speaker 1: So this tracking of the partisan alignment with the judicial

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Speaker 1: ideological alignment is relatively new, although it's something we've had

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Speaker 1: in the past, to go way back in in US history.

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Speaker 1: Having said that, I don't think that the cause is

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Speaker 1: the Supreme Court. I think the cause is greater polarization

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Speaker 1: in the Congress, especially in the Senate, so that it's

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Speaker 1: now very very difficult to get justices appointed essentially by consensus.

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Speaker 1: You know, as recently as Justices Ginsburg and Scolia to

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Speaker 1: choose a Democrat and a Republican, there was virtual unanimity

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Speaker 1: in the Senate to confirm them. You're not going to

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Speaker 1: see that anymore. And so what's happening, I think, is

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Speaker 1: that the polarization we see in politics is being reproduced

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Speaker 1: on the Supreme Court. Thanks Mike. That's Michael Dorff of

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Speaker 1: Cornell Law School. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg built up the f