Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: In the last four years, three new justices have taken
Speaker 1: the bench at the Supreme Court, giving the conservative justices
Speaker 1: a six to three edge over the liberal justices. But
Speaker 1: where does that put the Chief Justice, who just one
Speaker 1: term ago was the deciding vote in five to four
Speaker 1: decisions of the court. Joining me is Michael Doer, a
Speaker 1: professor at Cornell Law School. His latest article is entitled
Speaker 1: Whose Court is it now? So start by telling us
Speaker 1: what is the role of the Chief Justice? The Chief
Speaker 1: Justice is first among equals. The only two formal powers
Speaker 1: that the chief Justice has at other justices lack. Is first,
Speaker 1: the assignment power, So whenever the Chief Justice is in
Speaker 1: the majority, it's his prerogative to assign who writes the
Speaker 1: majority opinion. If he's not in the majority, than the
Speaker 1: next most senior justice has that role. The second authority
Speaker 1: is that he has some administrative responsibilities with respect to
Speaker 1: the Supreme Court itself and the federal judiciary as a whole.
Speaker 1: So he's not just the Chief Justice of the Supreme Court.
Speaker 1: The official title is the Chief Justice of the United States,
Speaker 1: So in that sense, it's an administrative role, not just
Speaker 1: in a judicatory one, and that differs a little bit
Speaker 1: from other justices explain the importance of getting the majority
Speaker 1: opinion of a justice writing the majority opinion. So, the
Speaker 1: Supreme Court is a court of last resort. It chooses
Speaker 1: the cases it decides, and so when it decides a case,
Speaker 1: it's not simply resolving a dispute between the parties. You
Speaker 1: don't really need to go to the Supreme Court for that.
Speaker 1: The lower courts can do that and do it all
Speaker 1: the time. The reason the Supreme Court takes a case
Speaker 1: in the first place is typically to resolve some important
Speaker 1: contested legal question that affects many cases, and the outcome
Speaker 1: is in some ways less important than the wording of
Speaker 1: the opinion deciding the case. The court can establish some
Speaker 1: new legal test by rule or a standard that's going
Speaker 1: to apply in many cases, and therefore the author of
Speaker 1: the majority opinion has a great deal of power beyond
Speaker 1: simply deciding how the case comes out. That's decided by
Speaker 1: majority vote, But there are many different ways to write
Speaker 1: the opinion deciding a case that will affect lots of
Speaker 1: other cases. Now it's true that you still need at
Speaker 1: least four other justices to sign onto your opinion to
Speaker 1: make it the governing law. But there is a bit
Speaker 1: of flexibility that the author of majority opinion has to
Speaker 1: write it the way he or she wants, and therefore
Speaker 1: it makes a difference who writes the majority opinion. This
Speaker 1: Chief Justice John Roberts, like most of his predecessors, will
Speaker 1: typically keep the majority opinions for himself. In very contentious
Speaker 1: important cases, it's possible the chief could assign an opinion
Speaker 1: to a justice and the justice could lose the majority
Speaker 1: in writing the opinion. Sure, so, let me let me
Speaker 1: illustrate with an example. Let's say that the Chief Justice
Speaker 1: assigns an opinion in the leading case to another justice
Speaker 1: who's in the majority. Let's imagine to Justice Alito, and
Speaker 1: Justice Alito writes the opinion in a way that reflects
Speaker 1: the outcome during the initial vote, but he writes it
Speaker 1: in such a way that is so extreme that some
Speaker 1: of the justices who originally voted with him say, well,
Speaker 1: we still think that that's the right outcome, but we
Speaker 1: can't join your opinion. And therefore that one or more
Speaker 1: of them might write a concurrence, and that concurrence could
Speaker 1: even attract enough other votes that it becomes the majority.
Speaker 1: In rare cases, the outcome actually flips from the petitioner
Speaker 1: wins to the petitioner loses after the assignment of the opinion,
Speaker 1: because somebody writes an opinion and the justices who originally
Speaker 1: voted the same way read it and realize. You know,
Speaker 1: now that I think about it, I think this is mistaken.
Speaker 1: I can't join, and I think the other side wins.
Speaker 1: Doesn't happen often, but it does happen. So if the
Speaker 1: chief is not in the majority, then the senior justice
Speaker 1: that is in the majority assigns the opinion. In history,
Speaker 1: have there been some justices who had more power than
Speaker 1: the chief because of that will not exactly. I think
Speaker 1: you might say that prior to his retirement, Justice Kennedy
Speaker 1: was about as powerful as Chief Justice Roberts because he
Speaker 1: was closer to the center of the court. But he
Speaker 1: more often voted with the Chief Justice than against him.
Speaker 1: So the Chief Justice still retained the assignment power. But
Speaker 1: you can imagine circumstances in which the chief is an
Speaker 1: ideological outlier and thus so frequently in dissent in important cases,
Speaker 1: that he is not effectively assigning opinions. In those important cases.
Speaker 1: I think people thought that might be true when John
Speaker 1: Roberts's predecessor, William rank Whist, became Chief Justice, because rank
Speaker 1: Wist had been pretty much on the far right of
Speaker 1: the court as an associate justice. But two things happened
Speaker 1: during his Chief justiceship that I think made him a
Speaker 1: fairly typical chief Justice. One is that additional conservatives were appointed,
Speaker 1: that the center of the court moved to the right
Speaker 1: and thus closer to him. And two because I think
Speaker 1: he moderated his views a little bit so as to
Speaker 1: make himself more of a centrist. And therefore it's often
Speaker 1: the case that a Chief Justice will be near the
Speaker 1: center of the court in order to preserve the chief's
Speaker 1: power within the court. Chief Justice John Roberts not last term.
Speaker 1: The term before last was like Justice Kennedy. He was
Speaker 1: the swing vote, and then we had the new conservative
Speaker 1: justices come on the court. He was in the majority
Speaker 1: though the time, so he's lost some of his power. Right. So,
Speaker 1: statisticians who studied the court talk about the median justice,
Speaker 1: and that's typically the justice who is in the majority
Speaker 1: more than anybody else. This last term, that was Justice
Speaker 1: Brett Kavanaugh. He was virtually always in the majority, and
Speaker 1: sometimes one is virtue always in the majority because one
Speaker 1: is exactly in the center of the court. So there
Speaker 1: are four justices to your left for to your right.
Speaker 1: Whichever way you vote, you make the majority. But I
Speaker 1: think it's a mistake to think about who the median
Speaker 1: justice is on average rather than on particular issues. So
Speaker 1: on many many issues, there really isn't a single median justice.
Speaker 1: There's sort of a group of them. I think if
Speaker 1: you were sort of were to look at this court overall,
Speaker 1: what we can say is Justice Sodomire is the most
Speaker 1: liberal justice. Justice Thomas is the most conservative justice, although
Speaker 1: Justice Alito is pretty close to him. Justices Brier and
Speaker 1: Kagan are sort of moderate liberals. Justice Gorsuch is very conservative,
Speaker 1: but not quite as conservative as Thomas and Alito. And
Speaker 1: then there's a group of sort of moderate conservatives on
Speaker 1: some issues, the Chief Justice and the two newest Justices
Speaker 1: Kavanaugh and Barrett. But that disguises and glosses over nuances.
Speaker 1: So there are some issues on which Justice Gorsuch is
Speaker 1: a liberal, like Fourth Amendment search and seizure issue shoos.
Speaker 1: Then there are other issues in which Chief Justice John
Speaker 1: Roberts is actually more conservative than some of the justices
Speaker 1: we think of as very conservative. And so if you're
Speaker 1: asking who is the median justice who is going to
Speaker 1: be in the center, you really need to know more
Speaker 1: about the particular case than just who's been the center
Speaker 1: on average. You said that Justice Thomas is the farthest right,
Speaker 1: explain some of his shall we say, unique positions. For example,
Speaker 1: on starry decisive right. The starry dicisis is the Latin
Speaker 1: term for adhering to precedent. Justice Thomas has said and
Speaker 1: sometimes voted in accordance with the view that starry decisives
Speaker 1: has very little role to play in constitutional adjudication. His
Speaker 1: thought is the Constitution is the supreme law of the land,
Speaker 1: not the precedents. If the presidents don't correctly preserve the
Speaker 1: original meaning of the Constitution, then the Court should discard
Speaker 1: the president's most justices. Every other justice ever to still
Speaker 1: on the Court pretty much has taken a somewhat different view,
Speaker 1: which is that you can't start over every day as
Speaker 1: though there we haven't been living under this constitution for
Speaker 1: well over two hundred years. You have to accept as
Speaker 1: the law prior decisions unless there's some very good reason
Speaker 1: to overturn them. That's what starry decisis is it's not
Speaker 1: as the courts somebody says, it's not an inexorable command,
Speaker 1: but it is a presumption in favor of precedent. And
Speaker 1: so what do you need to overcome it? Well, you
Speaker 1: need not just that you think the original case should
Speaker 1: have come out the other way, but do you think
Speaker 1: the original case was very wrong, profoundly wrong, and there
Speaker 1: haven't been substantial reliance interests people investing money or living
Speaker 1: their lives based on and the existing precedent. Justice Thomas
Speaker 1: acknowledges that those are considerations, but he gives them much
Speaker 1: much less weight than other justices do. So that's the
Speaker 1: first area starry disis. Second place I would point to
Speaker 1: is that Justice Thomas is a more committed originalist than
Speaker 1: nearly any other of the current justices. That is, he
Speaker 1: thinks that the Constitution means only what people believed it
Speaker 1: meant at the time it was adopted. So let me
Speaker 1: give you an example from a few years ago that
Speaker 1: it has come up again recently. There was a case
Speaker 1: involving restrictions on the sale of violent video games to
Speaker 1: minors without their parents. Permission a case called Electronic Merchants
Speaker 1: Association that came out of California, and the majority in
Speaker 1: the case found that the law was unconstitutional in the
Speaker 1: way it restricted freedom of speech. The leading descent disagreed,
Speaker 1: but said, you know, as we apply our precedents, we
Speaker 1: think that the court has gotten it wrong. And then
Speaker 1: Justice Thomas wrote his own descent in which he said, well,
Speaker 1: the case should come out the other way, That is
Speaker 1: to say that the law should be upheld, but not
Speaker 1: because of any current principle of free speech, but because
Speaker 1: in the eighteenth century, strangers didn't have a right to
Speaker 1: talk to miners without the permission of the parents. And
Speaker 1: so he essentially said that miners don't have any free
Speaker 1: speech rights because they didn't have any free speech rights
Speaker 1: in the eighteenth century. And that's the end of the story.
Speaker 1: So that's a kind of extreme view of originalism that
Speaker 1: nobody else shares. I just want to get your take on.
Speaker 1: CNN Legal analyst Jeffrey Tubin has written an opinion piece
Speaker 1: saying Clarence Thomas is the new Chief Justice. Why do
Speaker 1: you think that is correct or incorrect? So I think
Speaker 1: it's incorrect. I think what Mr Tuban is alluding to
Speaker 1: is the fact that the Chief Justice in some important
Speaker 1: cases has sided with the Democratic appointees Justices Briar son
Speaker 1: of my Ran Kagan, to form a group of four
Speaker 1: in dissent as against the five more conservative justices. We
Speaker 1: saw this most profoundly in some of the COVID cases
Speaker 1: involving religious freedom. And so when that happens, when you
Speaker 1: have that alignment of Roberts plus the Democratic appointees versus
Speaker 1: all the other Republican appointees, then Justice Thomas, as the
Speaker 1: most senior associate Justice, has the assigning power. And Mr
Speaker 1: Tuban says the assigning power is the only thing that
Speaker 1: distinguishes the Chief Justice from the other justices. So in
Speaker 1: that technical sense, he's onto something, But I don't think
Speaker 1: it's really accurate, because the Chief Justice doesn't just assign
Speaker 1: the opinions. The assignment power is only meaningful if the
Speaker 1: person to whom you assign it then writes an opinion
Speaker 1: that is going to garner five votes for its rationale,
Speaker 1: not just the result. And Justice Thomas can't get a
Speaker 1: majority to go along with his most distinctive and most
Speaker 1: extreme views about story to Scientist about originalism, for example,
Speaker 1: So it seems to me that we could have a
Speaker 1: conception of a kind of de facto chief Justice, someone
Speaker 1: who might or might not be the actual chief Justice,
Speaker 1: but has sort of the most power on the court,
Speaker 1: and that would be some combination of being close to
Speaker 1: the center of the court and being very senior. Now,
Speaker 1: the only person on this court who is both close
Speaker 1: to the center of the court and very senior is
Speaker 1: in fact Chief Justice John Roberts. So I think that
Speaker 1: John Roberts is not only the literal chief Justice, but
Speaker 1: he is in fact the de facto chief Justice. You
Speaker 1: could have made an argument a few years ago there
Speaker 1: before his retirement, Justice Kennedy, who was at that time
Speaker 1: the senior associate Justice and at the exact center of
Speaker 1: the court, was the sort of de facto chief Justice,
Speaker 1: And you know that would have been a reasonable argument.
Speaker 1: But you can't make that argument today. The most senior
Speaker 1: associate justice is at the extreme of the court. The
Speaker 1: justice at the exact middle, Justice Kavanaugh, is the second
Speaker 1: most junior justice. So it's only John Roberts who sort
Speaker 1: of combines seniority and being close to the center. In
Speaker 1: upcoming case, the case involving Mississippi and abortion take that
Speaker 1: and say that Thomas wants to overturn Row, but the
Speaker 1: median justices don't want to do that right away. They
Speaker 1: wanted to be more incremental. Just explain how that would
Speaker 1: sort of work out, right. So all of this is
Speaker 1: somewhat speculative. But there is a case currently on the
Speaker 1: docket of the Supreme Court for argument in the coming term,
Speaker 1: coming from Mississippi, in which the State of Mississippi has
Speaker 1: asked the Supreme Court to overturn Roe v. Wade and
Speaker 1: the subsequent cases applying it, and, if not at least
Speaker 1: to cut back dramatically on it, to do away with
Speaker 1: the viability line, which is a key part of Roe v. Wade.
Speaker 1: I think it's fair to say that Justice Thomas and
Speaker 1: Justice Alito would tomorrow if they had the opportunity to
Speaker 1: say we hereby overrule Roe v. Wade. I think it's
Speaker 1: also likely that three or four additional justices would get
Speaker 1: somewhere near there eventually, but might want to do it
Speaker 1: more incrementally. That has been one of the hallmarks of
Speaker 1: the Chief justiceship of John Roberts is that he moves
Speaker 1: in relatively small steps for the first time in his
Speaker 1: judicial career, not this past term, but the previous term.
Speaker 1: In the Louisiana abortion case June Medical, the Chief Justice
Speaker 1: actually voted to strike down an abortion restriction. Now, he
Speaker 1: did so on the basis of precedent, and he did
Speaker 1: not commit to applying that precedent forever. But it does
Speaker 1: suggest a kind of caution on his part. If that
Speaker 1: cautious attitude is shared by either Justice Kavanaugh or Justice Barrett,
Speaker 1: or both of them, then the Court will not fully
Speaker 1: and frontally over rule Row in the coming term, even
Speaker 1: though that might be the preference of Justice Thomas, probably
Speaker 1: Justice Leedo, and perhaps Justice Corsage. Thanks for being on
Speaker 1: the show. That's Professor Michael Dorff of Cornell Law School,
Speaker 1: and that's it for the edition of the Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news on
Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
Speaker 1: and at Bloomberg dot com, slash podcast, Slash Law. I'm
Speaker 1: June Grasso, and you're listening to Bloomberg