Another very busy, you might even call it momentous. US Supreme Court term is coming to a close with decisions in a slew of cases that will have lasting repercussions.
Earlier this morning, the Supreme Court issued an opinion on a case challenging the Biden administration's immigration policy. The justices ruled that the states who brought the challenge did not have the legal standing to do so.
In a six ' to three decision delivered by Chief Justice Roberts, the Supreme Court delivered a strong rejection of a fringe legal theory that had threatened to upend election laws nationwide and expand the power of state Legislam.
The Supreme Court today ruled the late Andy Warhol violated a photographer's copyright when he used water.
Act, and the Justice is ruled in the family's favor, weakening the water pollution law, so joining US now from one of.
The Supreme Court in the case of Alan v. Milligan, the five to four decision, with Justices Roberts and Kavanaugh siding with the liberal justices, the Supreme Court upheld Section two of the Voting Rights Act.
And that's not all. In the past two days, the Court's conservative majority struck down the use of race as a factor in university admissions. The court said a wedding website designer can turn away business from same sex couples, and the Justices unanimously told a lower court to take a new look at the case of a Christian postal carrier who says he was forced out of his job for refusing to work on Sundays. The court also tossed
out President Biden's student loan relief plan. So it seemed like a good time to check in once again with Bloomberg Legal correspondents Greg Storr and Zoe Tillman. They report that the cases the Justices are choosing to weigh in on show how the Court is asserting its power and enhancing its own role among the three branches of government in a way it has rarely done before.
So the Court is sort of allocating more power to itself to decide exactly what agencies are able to do.
And all of this, of course, is happening as the Justices themselves have come under intense scrutiny, with more Americans saying the Court is political and unaccountable.
They have not convinced the public anymore that they are above the fray.
I'm Weskasova today on the big take the Supreme Court flexes its muscles. Greg In this big story, you write how the Supreme Court has really taken a larger role in American life than I think maybe we've seen before.
Yeah, very much so, and certainly a lot of that is attributable to this six ' three conservative majority that we have now and a court that is willing to use it its power to do things. The abortion case from last term obviously the biggest example, but there are plenty of other ones. It's a very ambitious court at this point.
Give us some other examples of what you mean, not just about individual cases they decide, which of course we see every year, but this kind of overall idea that the Court itself is trying to change its place within the three branches of government.
Well, it's clearest with regard to administrative agencies and in particular the Environmental Protection Agency, where we've seen a case last term, a case this term where the Supreme Court has said, no, EPA, you don't actually have the power to do that. We are going to decide. So the Court is sort of allocating more power to itself to decide exactly what agencies are able to.
Do and Zoe. That speaks to this question of whether the president, the executive branch, has the power to issue regulations and where that power actually lies.
That's right.
I mean a common refrain that we've heard from conservatives in the law has been for a number of years a concern that sort of this idea of quote unquote unelected bureaucrats are making policy and speaking of the balance of powers. You know, in their mind, you know, usurping power from Congress. So in the minds of some academics, you know, this is the court right sizing the way that policy making should happen. That it shouldn't be career
staff in ex agency deciding how policy is enacted. That it should really be up to Congress to make that call. But that is happening at a time when Congress is gridlocked and less.
Able to do that kind of work.
So it manifests in reality as judges stepping in and the justices stepping in to ultimately be the arbiter of these questions. And I think that's where the disconnect of the at least the perception of imbalance has come from.
Greg, why are we having these arguments about this now, in the case of the EPA, these go all the way back to Richard Nixon's administration. He was a Republican after all.
Yeah, that's a good question. And if you ask, say the conservative members of the Court or their supporters, they will say it's because the agencies are trying to do more than they've done previously. Obviously, the EPA wasn't regulating climate change or trying to regulate climate change back in Richard Nixon's era, and so what those folks would say is it's agency overreach. Folks on the other side will say, the reason this is happening is that you have this
broadly worded statute. Courts have always kind of understood that the EPA and other agencies have some flexibility within this broadly worded statute. And it's only now that we have this court that doesn't like what it's doing with those that they're coming in and saying no, you can't actually do those things.
So that's government regulation, which is a big one. What are some other ways in which the Court is asserting itself in a way that it hadn't previously.
One big way is with the gun ruling last year, and the gun ruling from the Heller decision from a little more than a decade ago, where the Court for the first time said the Second Amendment protects an individual right, and then the Court last term, in a case involving the right to carry a handgun in public, said the way we determine whether a gun restriction is constitutional is we try to find some historical analog We try to find laws that were in place around the time of
the founding so that we know whether or not that is in keeping with our history and tradition. And that framework has meant that courts have an awful lot of power to go back and figure out what their interpretation of history is and whether or not that supports some current gun regulation. So we're in an era where lower
courts are striking down a lot of gun regulations. We are very likely going to have a series of Supreme Court cases in future years where it will be the Court, not Congress, not state legislatures, that decide whether or not a particular gun restriction is constitutional.
And what's been interesting about the aftermath of that decision is that some of the pushback we've seen has come from lower court judges who have tried to indicate in their decisions or dissents that they feel that the Supreme Court has given them too much power now to make these kinds of calls and has put authority and responsibility on them to be historians in a way that they
don't feel as appropriate. And it's sort of extraordinary to see lower court judges articulating that kind of criticism of the Justices and saying, you know, this is not power that we want that you have now given us, and advocating for the justices or the circuit courts to set precedent reigning some of that in. It's unusual to see that kind of pushback after the Supreme Court takes on more authority for the judiciary to make decisions.
How do they decide when to stick to precedent and when to toss it aside and review the law?
Well, there are guideposts that the Court has traditionally looked at. So you know, one is just how wrong was that previous decision? Was it egregiously wrong? They look at the extent to which society has relied on that precedent. They look at the extent to which factors have changed that make the precedent no longer as valid as it was at the time. That being said, a lot of folks
would say, it's a pretty darn subjective process. And in the abortion case, for example, it was pretty clear that a really big factor in that case was they just really thought that the roy View Wad decision was wrong. The Court has traditionally been less willing to overturn a precedent that involves interpreting a statute, and the rationale is, hey, if we got that wrong, Congress has the ability to pass a new statute and put it back, you know, the way they.
Want it, Zoe. One other way that you write that the court seems to be taking on more power is using something called the shadow docket. What exactly is it and how does it work?
Right? So, the shadow docket happens when litigation is moving up in the lower courts and a decision happens that is going to have such a dramatic impact on what happens next that there is room to sort of immediately appeal even though there's not a final decision on the merits of the case. So we might be talking about some kind of preliminary injunction to stop something happening in two days that will be irreversible once it happens, And
so there is sort of this race. You've lost at the district court, you immediately go to your circuit court to seek a stay of that order that you don't like, and if you lose, you then file an emergency application at the Supreme Court saying, hey, we're not asking for a final ruling on these legal issues, but we think there's a reparable harm that's going to happen here. So you justices need to preserve the status quo. That's in
theory how it's supposed to work. More often it ends up being the case that this is the final ruling on the issue. That you know, what the justices do with these applications sort of signals what they will do ultimately, and that kind of guides the rest of the litigation going forward in the lower courts.
And so it's a way of short circuiting the usual method of bringing a case to the Supreme Court.
That's right.
One big example, or a series of big examples, happened during the pandemic when states and cities were imposing these capacity limits and houses of worship would sue saying it's violating our religious rights under the Constitution, because you're keeping us from having the in person services that we think
are so important. And in a series of decisions, the Court blocked those capacity limits, and by the end of it, the Court itself was sort of talking about those like they were merits determinations, in other words, as if this was a case that came up in the normal process. We had full briefing, we had arguments, and we made a decision that is binding. And as Zoe said, that's not the way the shadow docket is supposed to work.
The idea is that we're going to keep the status quo while the litigation goes forward, or at least that's a very important principle in that. And instead the Court was seeming to get upset with lower courts that they weren't heeding the Court's guidance from previous shadow docket orders.
And Zoe, when they issued ruling from a shadow docket, do we know how each of the individual justices voted.
We don't always know that.
We know if there's a written opinion that goes along with it that's authored by a particular justice.
We know if justices want to note.
A dissent or write to explain their descent, but they don't have to put how the vote goes.
Like they do in regular published opinions.
Which I suppose adds to this feeling of a lack of accountability sometimes on big decisions that affect everybody's lives very much.
So I should say there are at least some signs that the Court is pulling back from using the shadow dockets so aggressively. So in this Voting Rights Act case that they decided this term involving redistricting in Alabama on the creation of a second majority Black district, Justice Cavanaugh voted at the shadow docket stage not to require Alabama to do that, and he indicated it was because it was too close to the election. We weren't going to force
Alabama to change everything this close to an election. And some of us, I'll confess, including me, thought that by doing that he was signaling that ultimately he was going to be on Alabama's side. Well, when the Court eventually decided the case, it was a bit of a surprise.
The Court said, actually, Alabama does have to create the second majority black district, and Justice Kavanaugh was in the majority there, so he is at least one justice who in that circumstance did not treat the shadow docket as the ultimate merits determination. He was just keeping the status quo as he understood it, and so reserving for himself the ability to decide either way once he actually heard arguments.
In the case after the break. They call it the high Court, but American's opinion of it not so high, Zoe. How does the public feel about the Supreme Court's willingness to take on some of these big cases?
Overall? The public is not thrilled with the direction of the Supreme Court, And I think tied up in that is not just how the justices have exercised authority in the courtroom and in their decisions, but the perception of them as public officials, you know, answering.
To the public. There seems to be a general.
Erosion of trust in how they're operating in both of
those spheres. And we've seen polls come out showing steady dips in public confidence in the Court and showing, you know, a steady rise in the perception of the justices as political you know, and this word that they hate, but you know, partisan actors in our political system, and you know, historically the justices and all federal judges will say, the whole point of life tenure is that we are not beholden to the president who appointed us, and even the
party that perhaps put us on a path to getting to the bench. That has come under scrutiny and been a harder line to hold, as everyone else around the Court has made quite clear that they see it as a very important political actor in our system, whether or not it's true. In fact, the perception is this is as important as reality at this point, so they have not convinced the public anymore that they are above the fray.
You know, one dynamic that has really changed in the past fifteen years or so, starting in twenty ten when Justice Kagan was confirmed to succeed Justice Stevens. At that point, all the most conservative members of the Court were Republican appointees, and all the most liberal members of the Court were Democratic appointees. Up until twenty ten, that had not been the case. Now these justices really do operate kind of
as extensions of the party that nominated them. In terms of the bottom line results, the vast majority of the time the Republican appointed justices get to the result that kids would like same thing with the democratic appointed justices, and that makes it much much harder to escape what Zoe was just talking about, this perception that these justices really aren't that different from elected officials who run under a party label.
I suppose another thing along those lines that has undermined public confidence in the court has to do with the own ethics and behavior of the justices. Over the last several months, we've seen stories come out that detail the justices in apparent conflicts of interest that they don't particularly seem to be bothered by.
This year is not the first time that ethics controversies have come up involving the justices, but because of a confluence of events and just more attention being paid to the court, these seem to have hit harder and had more longevity, perhaps than other controversies that have come up before.
And it's more this sort of bigger question of are the justices behaving in a way that instills confidence among the public that the decisions they make are free from any outside influence and free from their own affiliations and beliefs.
You know, Greg, we think about the justices as being, you know, these kind of figures who stand above and yet they have to be aware of the public's perception. Given all the things that Zoe's talking about, Now, why haven't they been more active in trying to restore confidence in the court. The confidence in the court seems to be their most important asset.
Yeah, that's a really good and in many ways unanswerable question. The fact of the matter is that they've done very very little. Even Chief Justice Roberts, who we talk about as somebody who cares deeply about the legitimacy of the Supreme Court, it's institutional standing, and of course he's the
Chief Justice. If anybody you'd think would be addressing these issues and sort of makeing sure that holes are plugged up and the public understands that justices take their responsibilities and these ethics issues seriously, you'd think it would be him. But he has said very very little. So when Dick Durbin, who's the Democratic chairman of the Senate Judiciary, asked John Roberts to come testify, not only did John Roberts say, no, I'm not going to come testify about these ethics issues,
he sent him a letter that didn't even acknowledge. We understand that there's some public concern about some of these issues. It was a rather kurt letter that just said, Chief Justices, don't come testify. Here's all my historical evidence of that. And the Court did attach this statement of ethical practices and principles that they say they followed. All nine of
them sign that, which was an accomplishment of sorts. But there has not been any kind of public acknowledgment beyond that and maybe one little statement that he made about, you know, we take our ethical duties seriously.
The ethics controversies have raised questions, you know, not just of whether the justices are too close with some of the partisan actors who are trying to advocate for issues that move through the courts, but have also raised questions of whether the justices are perhaps not being cautious enough in affiliating with people and getting into some kind of financial relationship, whether it's a gift or something else, with specific individuals who may have actual business before the court,
you know.
And just recently.
Another story coming out about Justice Samuel Alido taking a trip on a private jet of a billionaire who is also you know, active in Republican politics and causes to take a fishing trip to Alaska, you know, and the justices coming out and.
Saying, if you look at the rules, I.
Insist you know I did everything correctly. I didn't have to disclose these There was no need to recuse. But I think you know it is certainly not helping convince the public that they are not affiliated.
It shows the.
Risks and also just how much is self policed by the Court when it comes to ethics.
When we come back, what if anything, can the Court do to restore trust? So, given all of this, what can the Court do to restore confidence among the public that they're not political, that they're not constantly in conflicts of interest with rich people, that their decisions are based on the law and not other things that we can't see.
There are several steps that the Court could take to institute reforms that take a stricter approach to ethics and form. And there are also some steps that Congress could take. And before I described them all, it's worth saying that there is very little chance of any of these happening, given sort of the climate around and inside the Court
and around and inside Congress. But in theory, the justices could come together and decide to adopt a code of conduct that is binding on them similar to the code of conduct that is binding on lower court judges.
You know, the.
Justices are required to follow the law, and federal law does spell out broad ethics principles that they have to adhere to, but sort of the nitty gritty, day to day guidance of what is and is not allowed. Chief Justice Roberts has said that they follow it voluntarily, that that there's no need for this.
Binding code of conduct.
And you know, Congress, on the other hand, could pass legislation that imposes more stringent reporting or recusal requirements on the Court. You know, seeing the Chief Justice bristle at the idea of congressional oversight or intervention, citing separation of powers. But you know, we spoke to experts for our story who said that at.
A minimum, there's a lot of gray area.
And when it comes to Congress's ability to legislate sort of not how the court rules, but how it operates and you know, how it enforces ethics, that there is room for Congress to do that. Congress has kicked around occasionally the idea of an inspector general for the judiciary, which does not exist right now, The idea that the justices cannot come before Congress to testify sort of another area where experts.
Have said, well, you know, they could.
Some of these are judgment calls and they don't want to and they don't think it's appropriate, But that doesn't mean that they can't and in the future could come and sort of more publicly talk about not how they rule, but how they conduct themselves as public officials. The other legislative intervention that we've heard about, well, there are a couple. One is expanding the number of seats on the Court, which is something that has grown in popularity on the
left as the conservative supermajority has taken root. Academics have also looked at this question of Congress's ability to decide what the court has jurisdiction to rule on, and that gets a little more into the realm of substance, where things are perhaps a little more squishy when it comes.
To separation of powers.
But we have seen Congress enact legislation and say there is not jurisdiction for courts to rule on X, so a way of kind of reclaiming power at least for the legislative branch from the court.
The other thing they can do, and I want to make it clear I'm not saying they should do this because we don't want our judges following public opinion polls in their rulings. But one of the biggest factors in declining public confidence in the Court has been the aggressiveness of its rulings. The ruling overturning Roe v. Wade, whether you think that was right or wrong, that hit the Court's credibility very hard among a certain segment of the public.
And to the extent the Court is issuing polarizing rulings, and to the extent all those polarizing rulings are most of them are going in one direction. It's only natural that a big segment of the public is going to be very unhappy with the Court. Again, that's not to say it's right or wrong, but that's going to be a factor in terms of how the public views the Court going forward, given the six ' three conservative majority that they have.
Greg Zoe, thanks so much for coming on the show. Sure thing, Thanks for having us, Thanks for listening to us here at the Big Take. It's a daily podcast from Bloomberg and iHeartRadio. For more shows from iHeartRadio, visit the iHeartRadio app, Apple Podcasts, or wherever you listen, and we'd love to hear from you. Email us questions or comments to Big Take at Bloomberg. The supervising producer of the Big Take is Vicky Ergalina. Our senior producer is
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