Blackman Reviews Scotus Term

those opinions were decided by a single vote. So one way to describe it is the crossover term, with liberal justices winning more often in those closely divided five to four cases than did the conservatives. Joining me, as Constitutional law professor Josh Blackman of the South Texas College of Law, Josh, is there any way to describe the type of cases where the conservatives crossed over to the liberal side? Any categories? Um, thank you for having me on. This past term was

a bit of a surprise. Uh. Many people were expecting this sort of dooming gloom conservative monopoly, and we didn't really see this. In a sizeable number of the five four cases, the four member liberal block actually garnered a conservative vote. Um. This happened in a wide range of cases. It didn't happen for any specific reason. But for example, Justice Gorcich has certain sympathies in criminal cases, so he crossed over to vote with the liberals in some federal

criminal cases. UM. In a in a huge census case, Chief Justice Roberts also crossed over because he had some concerns about how the Trump administration handled the census issue. So they're each case has slightly different wrinkles in which conservative justice was willing to break the lines, so to speak. But I think what this term shows is that the justices do have their own opinions. They're not just voting by political party, and that it's not a given that

in a given case the conservative side will prevail. Now you look beyond the numbers, the Conservatives won major sort of game changing decisions in partisan gerrymandering, state severenity, property rights, overturning long standing precedents twice, while the liberals seem to have held the line and preserved longstanding precedents involving the power of government agencies, double jeopardy, and the census. What does that tell you? Um, it tells us that this

prom courstal figuring things out. UM. Every time a new justice is added, the dynamics and the court change a bit. In the span of two years, we had two branded justices. Justice Skalil is replaced by Justice Gorcich, and Justice Kennedy, the swing vote was replaced by Justice Kavanaugh. So we had this significant change in how the court is diverging, and I don't think we quite yet know where it's going to go. Indeed, we may have another appointment sometime

in the near future. So this is very much court influx the court and change. Many constitutional experts look at this court and say, well, Chief Justice Roberts is becoming the swing vote. But as you mentioned, Neil Gorzich actually joined the liberals in five to four decisions four times, whereas Roberts joined them three times. Can you read anything into those numbers or is it the kind of cases Justice Scalia whom gors has replaced. Scalia had a very

strong concern for the rights of criminal defendants. It was somewhat at odds with his sort of gruff law and order personality, and I think in some regards Justice Gortch has steps into Scala shoes and also has a skepticism of these sorts of overbearing federal criminal prosecutions. He wants juries had questions of law that their jurious decide questions of fact. Gorsich wants to make sure that we read

criminal laws narrowly. I think he has this strong libertarian streak that Justice Scalia also had in some criminal cases. Um is Chief Justice Roberts a swing vote. I think that's a bit of a misnomer. Um. I think Roberts is deeply conservative, but in some cases where he thinks that a conservative ruling might not play well in certain circles, Uh, he sort of flips and meets people halfway. I don't think that makes him much of a swing quote. I think that makes him more of a politician. And how

he manages manages these disputes. I'm not a fan of this approach, but he seems to be doing this sort of middle of the road approach more and more recently. And he's the justice who always maintains there are no politics on the Supreme Court. Yeah, he says there are no Obama judges or no Trump judges. But the sort of split the baby approach that Roberts uses, UM becomes

harder and hard to justify each each year. Now some as you mentioned, some liberals feared there would be this immediate shift to the right with the addition of Brett Kavanaugh to the court. Does it now seem as if there will not be a shift to the right, or or that there will be a shift, but it will be incremental. I think the magic word is the eye word incremental. The streame Court never changes quite as quickly as people fear or people hope for um. They usually

move very slowly. Indeed, the sort of mascot of the Supreme Court is a turtle. To go at the stream court, they have these turtles everywhere. Um, Why a turtle. It's a sort of slow plotting animal that eventually gets the end of the race, doesn't get there in a hurry, and it gets a good way of looking at the court. They're not rabbits. They're they're they're tortoises. They're the most common voting lineup was in unanimous cases by far. Does it but does it seem as if the unanimous cases

are the cases that we're not really talking about? You know? I think this is an important point. Um. The majority of cases decided by the Court, right, they're the most common voting lineup is nine zero unanimous. On most questions of law. There's not much disagreement that and Clarence Thomas on the exact same page. Um, there are small number of cases that go five to four, but the bulk of them are a zero nine, zero to one, seven

to two, where there's a fairly wide consensus. And I think this is how most courts operate in the United States. Most courts don't have these a liberal conservative divides, except in the rare cases where philosophy makes a difference. So I think it's reassuring to have these sort of nine O cases come up to the come to the court. And so this is Justice bread Kavanaugh's first term on the court. What's your take on him? Um, you know it's always it's always premature to judge a justice after

one term. Um, but I think we can make a couple observations. Um, First, he's going to be more conservative than the man he replaced, Anthony Kennedy, So that question, the court moves a little bit to the right. Um. I think Kavanaugh has also shown a willingness to explain himself and explain how why he's going the way he's voting.

So to give you an example, there's a cases term involving a peace cross in Maryland, it was a World War One memorial that tall Cross and Kavana had this opinion where he says he recognizes that this this display maybe harmful or her hurtful to, for example, Jewish veterans who don't we don't like the Cross, and he went out of his way to show lack of better word, empathy for the people who are harmed by his ruling. Um, that's something Justice Kennedy did, and it seems something Cavna

was doing as well. It is sure as heck not what Justice Lee would have done. It wouldn't care how people were reaffected by his ruling because he's focusing on the law. So Kavanaugh is already starting to merge in these sort of extra legal considerations, which uh gives him a Kennedy flair or maybe just O'Connor flair that as the scale as the world don't really really write about. Well, I think the liberals of the world would be happy to hear that from you. Thank you so much for

joining us, Josh. That's Josh Blackman. He's a cons odditional law professor at the South Texas College of Law. Thanks for listening to the Bloomberg Law podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcast. I'm June Grosso. This is Bloomberg