WEBVTT - Whose Court Is It Now? 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.000 --> 0:00:12.200 In the last four years, three new justices have taken 0:00:12.200 --> 0:00:15.880 the bench at the Supreme Court, giving the conservative justices 0:00:16.040 --> 0:00:18.960 a six to three edge over the liberal justices. But 0:00:19.160 --> 0:00:22.400 where does that put the Chief Justice, who just one 0:00:22.560 --> 0:00:25.439 term ago was the deciding vote in five to four 0:00:25.520 --> 0:00:28.200 decisions of the court. Joining me is Michael Doer, a 0:00:28.200 --> 0:00:32.200 professor at Cornell Law School. His latest article is entitled 0:00:32.320 --> 0:00:36.479 Whose Court is it now? So start by telling us 0:00:36.720 --> 0:00:40.040 what is the role of the Chief Justice? The Chief 0:00:40.080 --> 0:00:45.800 Justice is first among equals. The only two formal powers 0:00:45.840 --> 0:00:49.880 that the chief Justice has at other justices lack. Is first, 0:00:49.960 --> 0:00:53.120 the assignment power, So whenever the Chief Justice is in 0:00:53.200 --> 0:00:57.240 the majority, it's his prerogative to assign who writes the 0:00:57.240 --> 0:01:00.280 majority opinion. If he's not in the majority, than the 0:01:00.320 --> 0:01:04.360 next most senior justice has that role. The second authority 0:01:04.480 --> 0:01:08.120 is that he has some administrative responsibilities with respect to 0:01:08.200 --> 0:01:12.440 the Supreme Court itself and the federal judiciary as a whole. 0:01:12.520 --> 0:01:15.800 So he's not just the Chief Justice of the Supreme Court. 0:01:15.840 --> 0:01:19.120 The official title is the Chief Justice of the United States, 0:01:19.480 --> 0:01:21.880 So in that sense, it's an administrative role, not just 0:01:22.040 --> 0:01:24.920 in a judicatory one, and that differs a little bit 0:01:25.000 --> 0:01:30.400 from other justices explain the importance of getting the majority 0:01:30.440 --> 0:01:34.000 opinion of a justice writing the majority opinion. So, the 0:01:34.040 --> 0:01:38.280 Supreme Court is a court of last resort. It chooses 0:01:38.440 --> 0:01:41.839 the cases it decides, and so when it decides a case, 0:01:42.240 --> 0:01:46.000 it's not simply resolving a dispute between the parties. You 0:01:46.000 --> 0:01:47.920 don't really need to go to the Supreme Court for that. 0:01:47.960 --> 0:01:50.040 The lower courts can do that and do it all 0:01:50.040 --> 0:01:53.040 the time. The reason the Supreme Court takes a case 0:01:53.160 --> 0:01:57.760 in the first place is typically to resolve some important 0:01:58.000 --> 0:02:04.280 contested legal question that affects many cases, and the outcome 0:02:05.080 --> 0:02:08.760 is in some ways less important than the wording of 0:02:08.800 --> 0:02:11.920 the opinion deciding the case. The court can establish some 0:02:12.040 --> 0:02:15.799 new legal test by rule or a standard that's going 0:02:15.840 --> 0:02:19.880 to apply in many cases, and therefore the author of 0:02:19.919 --> 0:02:23.880 the majority opinion has a great deal of power beyond 0:02:24.080 --> 0:02:26.760 simply deciding how the case comes out. That's decided by 0:02:26.840 --> 0:02:29.960 majority vote, But there are many different ways to write 0:02:30.000 --> 0:02:33.360 the opinion deciding a case that will affect lots of 0:02:33.360 --> 0:02:37.359 other cases. Now it's true that you still need at 0:02:37.440 --> 0:02:40.440 least four other justices to sign onto your opinion to 0:02:40.560 --> 0:02:43.639 make it the governing law. But there is a bit 0:02:43.639 --> 0:02:47.320 of flexibility that the author of majority opinion has to 0:02:47.400 --> 0:02:51.200 write it the way he or she wants, and therefore 0:02:51.440 --> 0:02:55.480 it makes a difference who writes the majority opinion. This 0:02:55.680 --> 0:03:00.160 Chief Justice John Roberts, like most of his predecessors, will 0:03:00.160 --> 0:03:06.040 typically keep the majority opinions for himself. In very contentious 0:03:06.240 --> 0:03:11.080 important cases, it's possible the chief could assign an opinion 0:03:11.200 --> 0:03:15.400 to a justice and the justice could lose the majority 0:03:15.480 --> 0:03:18.680 in writing the opinion. Sure, so, let me let me 0:03:18.880 --> 0:03:22.720 illustrate with an example. Let's say that the Chief Justice 0:03:22.919 --> 0:03:27.639 assigns an opinion in the leading case to another justice 0:03:27.639 --> 0:03:31.160 who's in the majority. Let's imagine to Justice Alito, and 0:03:31.280 --> 0:03:35.080 Justice Alito writes the opinion in a way that reflects 0:03:35.120 --> 0:03:39.160 the outcome during the initial vote, but he writes it 0:03:39.200 --> 0:03:42.240 in such a way that is so extreme that some 0:03:42.360 --> 0:03:46.119 of the justices who originally voted with him say, well, 0:03:46.360 --> 0:03:48.440 we still think that that's the right outcome, but we 0:03:48.520 --> 0:03:51.720 can't join your opinion. And therefore that one or more 0:03:51.720 --> 0:03:55.440 of them might write a concurrence, and that concurrence could 0:03:55.480 --> 0:03:59.680 even attract enough other votes that it becomes the majority. 0:04:00.000 --> 0:04:05.200 In rare cases, the outcome actually flips from the petitioner 0:04:05.280 --> 0:04:09.040 wins to the petitioner loses after the assignment of the opinion, 0:04:09.480 --> 0:04:13.720 because somebody writes an opinion and the justices who originally 0:04:13.800 --> 0:04:16.640 voted the same way read it and realize. You know, 0:04:16.960 --> 0:04:19.560 now that I think about it, I think this is mistaken. 0:04:19.640 --> 0:04:21.680 I can't join, and I think the other side wins. 0:04:21.880 --> 0:04:24.839 Doesn't happen often, but it does happen. So if the 0:04:24.920 --> 0:04:28.480 chief is not in the majority, then the senior justice 0:04:28.680 --> 0:04:32.279 that is in the majority assigns the opinion. In history, 0:04:32.360 --> 0:04:36.640 have there been some justices who had more power than 0:04:36.640 --> 0:04:41.000 the chief because of that will not exactly. I think 0:04:41.080 --> 0:04:46.080 you might say that prior to his retirement, Justice Kennedy 0:04:46.400 --> 0:04:50.760 was about as powerful as Chief Justice Roberts because he 0:04:50.839 --> 0:04:53.880 was closer to the center of the court. But he 0:04:54.080 --> 0:04:57.280 more often voted with the Chief Justice than against him. 0:04:57.279 --> 0:05:01.400 So the Chief Justice still retained the assignment power. But 0:05:01.520 --> 0:05:06.159 you can imagine circumstances in which the chief is an 0:05:06.200 --> 0:05:12.040 ideological outlier and thus so frequently in dissent in important cases, 0:05:12.440 --> 0:05:18.120 that he is not effectively assigning opinions. In those important cases. 0:05:18.279 --> 0:05:21.600 I think people thought that might be true when John 0:05:21.680 --> 0:05:25.800 Roberts's predecessor, William rank Whist, became Chief Justice, because rank 0:05:25.800 --> 0:05:28.680 Wist had been pretty much on the far right of 0:05:28.720 --> 0:05:32.680 the court as an associate justice. But two things happened 0:05:32.760 --> 0:05:36.320 during his Chief justiceship that I think made him a 0:05:36.640 --> 0:05:42.120 fairly typical chief Justice. One is that additional conservatives were appointed, 0:05:42.279 --> 0:05:44.280 that the center of the court moved to the right 0:05:44.360 --> 0:05:46.800 and thus closer to him. And two because I think 0:05:46.839 --> 0:05:49.320 he moderated his views a little bit so as to 0:05:49.360 --> 0:05:52.560 make himself more of a centrist. And therefore it's often 0:05:52.640 --> 0:05:56.600 the case that a Chief Justice will be near the 0:05:56.680 --> 0:06:00.560 center of the court in order to preserve the chief's 0:06:00.680 --> 0:06:04.960 power within the court. Chief Justice John Roberts not last term. 0:06:05.000 --> 0:06:09.240 The term before last was like Justice Kennedy. He was 0:06:09.400 --> 0:06:12.400 the swing vote, and then we had the new conservative 0:06:12.560 --> 0:06:16.359 justices come on the court. He was in the majority 0:06:16.440 --> 0:06:21.760 though the time, so he's lost some of his power. Right. So, 0:06:22.120 --> 0:06:26.839 statisticians who studied the court talk about the median justice, 0:06:27.120 --> 0:06:30.280 and that's typically the justice who is in the majority 0:06:30.360 --> 0:06:34.599 more than anybody else. This last term, that was Justice 0:06:34.600 --> 0:06:39.599 Brett Kavanaugh. He was virtually always in the majority, and 0:06:39.680 --> 0:06:43.360 sometimes one is virtue always in the majority because one 0:06:43.440 --> 0:06:45.600 is exactly in the center of the court. So there 0:06:45.600 --> 0:06:48.200 are four justices to your left for to your right. 0:06:48.440 --> 0:06:51.440 Whichever way you vote, you make the majority. But I 0:06:51.480 --> 0:06:55.760 think it's a mistake to think about who the median 0:06:55.880 --> 0:07:02.880 justice is on average rather than on particular issues. So 0:07:02.960 --> 0:07:09.120 on many many issues, there really isn't a single median justice. 0:07:09.320 --> 0:07:11.440 There's sort of a group of them. I think if 0:07:11.440 --> 0:07:13.760 you were sort of were to look at this court overall, 0:07:15.080 --> 0:07:19.520 what we can say is Justice Sodomire is the most 0:07:19.720 --> 0:07:24.880 liberal justice. Justice Thomas is the most conservative justice, although 0:07:24.920 --> 0:07:28.720 Justice Alito is pretty close to him. Justices Brier and 0:07:28.840 --> 0:07:33.800 Kagan are sort of moderate liberals. Justice Gorsuch is very conservative, 0:07:33.840 --> 0:07:37.880 but not quite as conservative as Thomas and Alito. And 0:07:37.920 --> 0:07:41.520 then there's a group of sort of moderate conservatives on 0:07:41.880 --> 0:07:46.080 some issues, the Chief Justice and the two newest Justices 0:07:46.760 --> 0:07:53.480 Kavanaugh and Barrett. But that disguises and glosses over nuances. 0:07:53.520 --> 0:07:57.360 So there are some issues on which Justice Gorsuch is 0:07:57.360 --> 0:08:00.320 a liberal, like Fourth Amendment search and seizure issue shoos. 0:08:00.720 --> 0:08:03.600 Then there are other issues in which Chief Justice John 0:08:03.720 --> 0:08:08.400 Roberts is actually more conservative than some of the justices 0:08:08.640 --> 0:08:12.160 we think of as very conservative. And so if you're 0:08:12.200 --> 0:08:14.680 asking who is the median justice who is going to 0:08:14.680 --> 0:08:17.200 be in the center, you really need to know more 0:08:17.280 --> 0:08:20.720 about the particular case than just who's been the center 0:08:20.760 --> 0:08:25.520 on average. You said that Justice Thomas is the farthest right, 0:08:26.320 --> 0:08:30.520 explain some of his shall we say, unique positions. For example, 0:08:30.560 --> 0:08:34.440 on starry decisive right. The starry dicisis is the Latin 0:08:34.559 --> 0:08:39.120 term for adhering to precedent. Justice Thomas has said and 0:08:39.200 --> 0:08:45.080 sometimes voted in accordance with the view that starry decisives 0:08:45.080 --> 0:08:49.520 has very little role to play in constitutional adjudication. His 0:08:49.640 --> 0:08:52.720 thought is the Constitution is the supreme law of the land, 0:08:52.840 --> 0:08:57.560 not the precedents. If the presidents don't correctly preserve the 0:08:57.600 --> 0:09:02.040 original meaning of the Constitution, then the Court should discard 0:09:02.080 --> 0:09:07.280 the president's most justices. Every other justice ever to still 0:09:07.320 --> 0:09:11.440 on the Court pretty much has taken a somewhat different view, 0:09:11.840 --> 0:09:15.880 which is that you can't start over every day as 0:09:15.920 --> 0:09:19.240 though there we haven't been living under this constitution for 0:09:19.480 --> 0:09:22.960 well over two hundred years. You have to accept as 0:09:23.400 --> 0:09:28.440 the law prior decisions unless there's some very good reason 0:09:28.679 --> 0:09:31.760 to overturn them. That's what starry decisis is it's not 0:09:31.840 --> 0:09:35.280 as the courts somebody says, it's not an inexorable command, 0:09:35.880 --> 0:09:40.880 but it is a presumption in favor of precedent. And 0:09:40.960 --> 0:09:42.520 so what do you need to overcome it? Well, you 0:09:42.520 --> 0:09:45.640 need not just that you think the original case should 0:09:45.640 --> 0:09:46.720 have come out the other way, but do you think 0:09:46.760 --> 0:09:52.040 the original case was very wrong, profoundly wrong, and there 0:09:52.080 --> 0:09:58.440 haven't been substantial reliance interests people investing money or living 0:09:58.440 --> 0:10:03.559 their lives based on and the existing precedent. Justice Thomas 0:10:03.720 --> 0:10:08.080 acknowledges that those are considerations, but he gives them much 0:10:08.160 --> 0:10:11.080 much less weight than other justices do. So that's the 0:10:11.080 --> 0:10:13.960 first area starry disis. Second place I would point to 0:10:14.280 --> 0:10:20.360 is that Justice Thomas is a more committed originalist than 0:10:20.760 --> 0:10:24.480 nearly any other of the current justices. That is, he 0:10:24.640 --> 0:10:28.600 thinks that the Constitution means only what people believed it 0:10:28.679 --> 0:10:30.600 meant at the time it was adopted. So let me 0:10:30.640 --> 0:10:33.440 give you an example from a few years ago that 0:10:33.480 --> 0:10:37.160 it has come up again recently. There was a case 0:10:37.440 --> 0:10:43.079 involving restrictions on the sale of violent video games to 0:10:43.280 --> 0:10:47.480 minors without their parents. Permission a case called Electronic Merchants 0:10:47.480 --> 0:10:53.000 Association that came out of California, and the majority in 0:10:53.040 --> 0:10:58.760 the case found that the law was unconstitutional in the 0:10:58.800 --> 0:11:03.480 way it restricted freedom of speech. The leading descent disagreed, 0:11:03.640 --> 0:11:06.800 but said, you know, as we apply our precedents, we 0:11:06.920 --> 0:11:10.040 think that the court has gotten it wrong. And then 0:11:10.120 --> 0:11:15.360 Justice Thomas wrote his own descent in which he said, well, 0:11:15.760 --> 0:11:17.480 the case should come out the other way, That is 0:11:17.520 --> 0:11:20.600 to say that the law should be upheld, but not 0:11:20.679 --> 0:11:24.520 because of any current principle of free speech, but because 0:11:25.000 --> 0:11:30.200 in the eighteenth century, strangers didn't have a right to 0:11:30.320 --> 0:11:33.840 talk to miners without the permission of the parents. And 0:11:33.880 --> 0:11:36.360 so he essentially said that miners don't have any free 0:11:36.400 --> 0:11:39.560 speech rights because they didn't have any free speech rights 0:11:39.600 --> 0:11:42.440 in the eighteenth century. And that's the end of the story. 0:11:42.720 --> 0:11:46.520 So that's a kind of extreme view of originalism that 0:11:46.640 --> 0:11:50.760 nobody else shares. I just want to get your take on. 0:11:51.559 --> 0:11:55.720 CNN Legal analyst Jeffrey Tubin has written an opinion piece 0:11:55.720 --> 0:12:00.280 saying Clarence Thomas is the new Chief Justice. Why do 0:12:00.280 --> 0:12:03.520 you think that is correct or incorrect? So I think 0:12:03.559 --> 0:12:06.920 it's incorrect. I think what Mr Tuban is alluding to 0:12:07.720 --> 0:12:13.160 is the fact that the Chief Justice in some important 0:12:13.280 --> 0:12:19.800 cases has sided with the Democratic appointees Justices Briar son 0:12:19.880 --> 0:12:22.320 of my Ran Kagan, to form a group of four 0:12:22.520 --> 0:12:27.640 in dissent as against the five more conservative justices. We 0:12:27.679 --> 0:12:31.120 saw this most profoundly in some of the COVID cases 0:12:31.160 --> 0:12:36.360 involving religious freedom. And so when that happens, when you 0:12:36.480 --> 0:12:41.480 have that alignment of Roberts plus the Democratic appointees versus 0:12:41.600 --> 0:12:45.680 all the other Republican appointees, then Justice Thomas, as the 0:12:45.720 --> 0:12:51.360 most senior associate Justice, has the assigning power. And Mr 0:12:51.400 --> 0:12:53.720 Tuban says the assigning power is the only thing that 0:12:53.760 --> 0:12:57.000 distinguishes the Chief Justice from the other justices. So in 0:12:57.040 --> 0:13:00.600 that technical sense, he's onto something, But I don't think 0:13:00.640 --> 0:13:06.560 it's really accurate, because the Chief Justice doesn't just assign 0:13:06.679 --> 0:13:10.640 the opinions. The assignment power is only meaningful if the 0:13:10.760 --> 0:13:13.679 person to whom you assign it then writes an opinion 0:13:14.200 --> 0:13:17.920 that is going to garner five votes for its rationale, 0:13:18.000 --> 0:13:22.360 not just the result. And Justice Thomas can't get a 0:13:22.480 --> 0:13:26.040 majority to go along with his most distinctive and most 0:13:26.080 --> 0:13:31.400 extreme views about story to Scientist about originalism, for example, 0:13:32.000 --> 0:13:34.240 So it seems to me that we could have a 0:13:34.280 --> 0:13:37.400 conception of a kind of de facto chief Justice, someone 0:13:37.440 --> 0:13:40.440 who might or might not be the actual chief Justice, 0:13:40.760 --> 0:13:43.160 but has sort of the most power on the court, 0:13:43.559 --> 0:13:46.400 and that would be some combination of being close to 0:13:46.440 --> 0:13:50.120 the center of the court and being very senior. Now, 0:13:50.160 --> 0:13:52.680 the only person on this court who is both close 0:13:52.720 --> 0:13:55.240 to the center of the court and very senior is 0:13:55.280 --> 0:13:58.560 in fact Chief Justice John Roberts. So I think that 0:13:58.760 --> 0:14:02.160 John Roberts is not only the literal chief Justice, but 0:14:02.240 --> 0:14:04.960 he is in fact the de facto chief Justice. You 0:14:05.040 --> 0:14:07.360 could have made an argument a few years ago there 0:14:07.360 --> 0:14:11.360 before his retirement, Justice Kennedy, who was at that time 0:14:11.760 --> 0:14:14.920 the senior associate Justice and at the exact center of 0:14:14.920 --> 0:14:17.680 the court, was the sort of de facto chief Justice, 0:14:18.280 --> 0:14:20.280 And you know that would have been a reasonable argument. 0:14:20.680 --> 0:14:24.520 But you can't make that argument today. The most senior 0:14:24.560 --> 0:14:28.000 associate justice is at the extreme of the court. The 0:14:28.560 --> 0:14:31.720 justice at the exact middle, Justice Kavanaugh, is the second 0:14:31.720 --> 0:14:34.760 most junior justice. So it's only John Roberts who sort 0:14:34.760 --> 0:14:38.880 of combines seniority and being close to the center. In 0:14:39.120 --> 0:14:44.080 upcoming case, the case involving Mississippi and abortion take that 0:14:44.200 --> 0:14:49.920 and say that Thomas wants to overturn Row, but the 0:14:49.960 --> 0:14:53.560 median justices don't want to do that right away. They 0:14:53.560 --> 0:14:56.080 wanted to be more incremental. Just explain how that would 0:14:56.080 --> 0:14:59.400 sort of work out, right. So all of this is 0:14:59.560 --> 0:15:03.080 somewhat speculative. But there is a case currently on the 0:15:03.120 --> 0:15:06.760 docket of the Supreme Court for argument in the coming term, 0:15:06.800 --> 0:15:11.600 coming from Mississippi, in which the State of Mississippi has 0:15:11.680 --> 0:15:15.480 asked the Supreme Court to overturn Roe v. Wade and 0:15:15.600 --> 0:15:18.760 the subsequent cases applying it, and, if not at least 0:15:18.760 --> 0:15:22.920 to cut back dramatically on it, to do away with 0:15:23.480 --> 0:15:27.520 the viability line, which is a key part of Roe v. Wade. 0:15:28.080 --> 0:15:31.320 I think it's fair to say that Justice Thomas and 0:15:31.480 --> 0:15:35.760 Justice Alito would tomorrow if they had the opportunity to 0:15:35.800 --> 0:15:39.440 say we hereby overrule Roe v. Wade. I think it's 0:15:39.560 --> 0:15:47.520 also likely that three or four additional justices would get 0:15:47.600 --> 0:15:52.520 somewhere near there eventually, but might want to do it 0:15:52.560 --> 0:15:56.880 more incrementally. That has been one of the hallmarks of 0:15:57.160 --> 0:16:00.520 the Chief justiceship of John Roberts is that he moves 0:16:00.600 --> 0:16:04.640 in relatively small steps for the first time in his 0:16:05.160 --> 0:16:09.240 judicial career, not this past term, but the previous term. 0:16:09.360 --> 0:16:14.440 In the Louisiana abortion case June Medical, the Chief Justice 0:16:14.600 --> 0:16:19.840 actually voted to strike down an abortion restriction. Now, he 0:16:19.880 --> 0:16:22.360 did so on the basis of precedent, and he did 0:16:22.360 --> 0:16:26.440 not commit to applying that precedent forever. But it does 0:16:26.640 --> 0:16:30.520 suggest a kind of caution on his part. If that 0:16:30.640 --> 0:16:36.800 cautious attitude is shared by either Justice Kavanaugh or Justice Barrett, 0:16:37.040 --> 0:16:41.360 or both of them, then the Court will not fully 0:16:41.640 --> 0:16:46.360 and frontally over rule Row in the coming term, even 0:16:46.400 --> 0:16:49.800 though that might be the preference of Justice Thomas, probably 0:16:49.840 --> 0:16:53.240 Justice Leedo, and perhaps Justice Corsage. Thanks for being on 0:16:53.280 --> 0:16:56.640 the show. That's Professor Michael Dorff of Cornell Law School, 0:16:57.200 --> 0:16:59.520 and that's it for the edition of the Bloomberg Law Show. 0:17:00.040 --> 0:17:02.080 Remember you can always get the latest legal news on 0:17:02.120 --> 0:17:05.919 our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 0:17:06.080 --> 0:17:09.760 and at Bloomberg dot com, slash podcast, Slash Law. I'm 0:17:09.840 --> 0:17:12.040 June Grasso, and you're listening to Bloomberg