Cases Where Justice Barrett Could Make a Difference

being decided by Chief Justice Robert's vote. When Barrett is in the equation, will she then be the deciding vote. She'll be the deciding vote in any case where Roberts makes the vote four to four. So in a case like the Wisconsin case from yesterday that was five to three, her vote wouldn't affect the outcome. Speaking of the Wisconsin case, are you reading into Justice Kavanaughs comments that he's trying to provide a roadmap that could help Trump win in

the election if there's a contested race. Well, I guess I would put it this way. Two years ago, we saw Brett Kavanaugh screaming at the Senate Judiciary Committee. Now, in his opinion, we see him screaming Donald Trump's talking points into his concurrence. Really, the only difference between Brett Kavanaugh's opinion in Donald Trump's Twitter feed is that Kavanaugh doesn't use all caps. Three of the justices worked on

the Republican side on Bush v. Gore. When you're a litigator or a lawyer, you don't necessarily believe in what you're arguing for your client in that context, does there being on that case signal anything? So I don't think that being on that case was an example of just taking your client's position, because that's what you're being paid

to do. People who were involved in that case were very much committed to the cause they were arguing for are so this wasn't just sort of professional lawyering, So that I think you're quite right. In general, it's a perilous thing to read into an advocates position what that

advocate might do on the bench. But I would say Bush versus Gore is a real exception to that, because the people who argued that case were very much committed to what they were arguing for, and so and I think it's it's you know, in that respect, it's no accident that um that in the Wisconsin opinion yesterday, Judge Justice Kavanaugh cited and discussed Bush versus Gore. Um. I believe that's the first time as any Supreme Court justice has done that since Bush versus Gore was decided. Right.

It contained that famous passage where um Justice Kennedy wrote that that the the opinion was good for that day in that train only. But I think Justice Kavana was making it quite clear that that he regards that as sort of normal settled law and an appropriate precedent for how the Court should act. Justice Barrett was questioned on

Roe v. Wade repeatedly during her confirmation hearings. She said that Roe v. Wade was not what she called a super precedent that could not be overturned, and she may be making a key decision on abortion in a matter of days. The Court is considering at a private confidence on Friday whether to hear Mississippi's defense of a law that would ban most abortions after fifteen weeks of pregnancy. If the Court takes that case, can we read anything into it? Well, I think if they take that case,

they're taking it to uphold the Mississippi law. I think that's quite clear, and I think it's clear that the Court is aiming to overrule Row. I just I don't think there's any subtlety about it, and I don't think there's anything to be mystified about. That's exactly the agenda. And in order to uphold Mississippi's law, would they have to overrule Row? No, No, they wouldn't in that case. And that's you know, they could, but they wouldn't have to.

And I think that's the preference of at least some of the justices in that group, is to move a bit incrementally. I think that's certainly Justice Roberts's preference UM. And I think that's serve the more credible way that that somebody who wants to reach that result would go about reaching it instead of reaching out to overrule Row. Set up a few cases beforehand that that seriously undermine Row. That then allows you when you do the starry decisive analysis.

One component of that is whether the precedent is something that's fixed in the law, that's relied upon UM and that is consistent with other areas of the law, or by contrast, is it something that sort of sticks out like a sort um. So I think the first agenda item for UM Justices Barrett, Kavanaugh, Roberts is to make Row really stick out like a sore thumb and then come back and overrule it. The arguments on Obamacare come up right after the election. How is that likely to

play out? There are a couple of aspects to that case. One is whether or not again the individual mandate as revised recently to have no penalty associated with it, whether that's constitutional. Because the Court ruled by a five to four vote that it was her vote replacing the vote of Justice Ginsberg, can flip that five to four in the other direction. Then the second question is if that provision is unconstitutional, is it severable from the rest of

the statute. And that's the kind of question on which I would have expected Chief Justice Roberts too have sided with the liberals to say it is severable, or even to have sided with the liberals that have said in the first instance, it's still not constitutional. So I think Justice Barrett's vote is going to be decisive on both of those questions. And the severability argument, frankly, is really weak.

And so it may be that Justice Barrett and any number of other conservative justices will agree that the individual mandate is severable. The Supreme Court has expedited a Trump administration appeal on the president's did to exclude undocumented immigrants from the census count, and they're going to hear that on November. Is there any indication how that case might

go again? This is reading tea leaves um. I think there's a lot of reason to be concerned, given the way that at least four justices right there, four conservative justices, have pretty consistently upheld the frankly partisan Republican positions with respect of voting um, and fundamentally, that's what this census case is about, the apportionment of seats and House of Representatives. It also has a lot to do with the portionment of federal funding. So it's a case that goes goes

beyond just that, but it has real political implications. And so adding Justice Barrett to that group means that the Court may well be poised to vindicate the Trump administration's frankly preposterous position. For two hundred and thirty years, it has been uniformly understood by Republicans, Democrats, pro immigration, anti immigration. Everybody that inhabitants means inhabitants. It doesn't mean citizens and so that this is even a question is really extraordinary.

And yes, having Justice Barrett on the court for that I think was a big part of the impetus to push to fill Justice Ginsburg's vacancy with some one that the right wing felt they could rely upon. Also coming up is a clash between gay rights and religious rights, and the Supreme Court in recent years has been expanding religious rights, some even by seven to two votes. Does it seem as if that case is going to favor

religious rights. Yes, that that case is going to go to use religious rights to establish a right to discriminate against people because of their gender or sexual orientation. Yes, that's very much the direction in which it's going. Let's just say that there is a democratic House, a Democratic Senate, and a democratic president. Can Congress pass laws to protect gay rights? If the Supreme Court holds that the free exercise of religion includes the right to discriminate against people

becomes of their sexual orientation. Right, so the employer's religious belief that an employee's sexual orientation is sinful or disordered. Um, if that's protected free exercise, that forbids Congress from overriding it, because the right to free exercise is a fundamental First Amendment protected constitutional right, and Congress can't infringe on that by legislation. It is contrary to how we've always understood free exercise in the past to say that it includes

a right to discriminate. But this Court certainly appears poised to say exactly that. Those are the cases that have been talked about a lot. Are there other decisions coming up that Cony Barrett's vote may make a difference. The other one that is immediately coming up is that the case involving the president's tax returns, and so you know she could end up casting at this aiding vote in

that case. And when you think about the way the Supreme Court resolved the cases, both the one out of New York and the cases coming out of the congressional subpoena's it was a very complicated and frankly kind of

convoluted compromise between several factions on the Supreme Court. Right, so they sort of spanned the gamut from the liberal approach of allowing Congress and um Cyrus Vans the Manhattan Prosecutor to subpoena and gain access to the president's tax returns um At the other end, you had Justice is Thomas and Alito who seemed to want to give the

president blanket protection um. And then in the middle you had Justice roberts Um siding with the liberals, but in a in a much more narrow way, holding that there might be circumstances under which the as um could be upheld, but really leaving enforcement of that to sort of further judicial elaboration. Well, now it's time for that further judicial elaboration, and when you replace Ginsburg with Barrett, that could have a real important consequence for whether or not those tax

returns have to be have to be turned over. Now that Cony Barrett is on the court, there's more of a push by Democrats to pack the court, and Joe Biden has said he's not a fan of that, but he's going to appoint Bipartisan Presidential Commission. What's your opinion about packing the court and whether it will, as some people say, ruin the Supreme Court. So, I think Donald Trump and Mitch McConnell have packed not just the Supreme Court but the federal courts generally, right, the district court

um and the courts of Appeals um. And so I

think it's important that they be unpacked. UM. The courts as they stand now do not have legitimacy or credibility, And it may be that adding seats doesn't do anything to improve their credibility, but it certainly improves their legitimacy in terms of their balance, in terms of undoing the manipulation that's been going on over the last years, many years, even before Donald Trump came into office, UM, Mitch McConnell was manipulating to make sure vacancies didn't get filled so

they could be filled during the Trump administration, most famously with Marrick Garland, but not only UM. And so I think responding to that is absolutely vital to the court. Right to just lay down and accept it UM is to accept a judiciary that lacks any kind of real legitimacy, that's been manipulated and manipulated for obvious partisan purposes, and

that needs to be undone. I suspect what Biden is doing is you know, pardon the pun, but he's Biden his time, right, And so you appoint a commission UM in order to take some time to really think about things and see how things are going. If John Roberts were still really the swing vote, I think he would hold his hand on things like over ruling Row. I think that would be his strong inclination, especially given the

threat of court packing. But with the six to three majority, you know, even if you lose John Roberts, now it's a five to four majority. Rowe is gone right, and it may make political sense for Joe Biden to wait for that to happen before coming forward with any kind of court reform package. Thanks for being in the Bloomberg Laws Show, Neil. That's Professor Neil Kinkoff of the Georgia's Day University College of Law. Just as Amy Coney, Barrett made her Supreme Court debut less than a week after

being sworn in as the newest member of the Court. Barrett, a graduate of notre Ame Law School, is the only current justice who did not attend law school at Harvard or Yale. About half of Supreme Court clerks in recent years also attended those law schools. So how did Barrett pick her law clerks? Joining me as Kimberly Strawbridge Robinson Bloomberg Law Supreme Court reporter, So Kimberly Barrett looked beyond

Harvard and Yale for her law clerks. Well, that's what we've been seeing um with her on the Seventh Circuit, and that is how she picked her clerks for her first clerk class on the U. S. Supreme Court. She announced the other day for clerks to join her in chambers and none of none of them are from Harvard and Yale, something that has definitely set her apart. Now.

Barrett hired two men and two women. Two were from the University of Chicago Law School, one from George Washington Law School, and one from Northwestern Law School, so none from her own alma mater. Does each justice have four clerks?

Each active justice four clerks and then the retired justices can have one and those numbers and sometimes switch around depending on, you know, the membership of the court itself, but typically it's just four clerks for the nine justices sitting on the bench and have some of the clerks

that she chose work for other justices. So she she did choose UM three clerks who had previously clerked for other justices, and then she brought one of her clerks from the Seventh Circuit along with her um to the Supreme Court. And that's typical. That's typically what we see from the justices who are just starting out on the bench. Now, I thought that Supreme Court clerkships lasted a year. Are

some people clerking for the court for more than a year. Well, you know, we we do occasionally see people who have clerked for more than one justice. That could happen in ways. Um. One they are either get selected to clerk, and then that justice retired, and so technically they're working for the retired justice they had one of the active justices, um. For example, like Kennedy might have sent some of his

clerks over to Justice Gorsute. Um. But then we also see that new justices do tend to hire clerks who have some previous experience on the Supreme Court probably um we're discussing, but to help them kind of learn the ropes a little bit of how you know the ins and outs of Supreme Court process. You know, I noticed that her clerks clerk previously for Justice is appointed by Republican presidents. When they're choosing clerks, are they thinking about

their political bent? Well, Justice Scalil is really the last justice to hire quote unquote counter clerks, that is, somebody who is ideologically opposite of him. But he stopped that practice UM many many years ago before he passed away. And most of the justices tend to hire clerks who have clerked for other justices or other judges on lower courts UM who applied the law in a similar way as them. So it's not unusual that her clerks all

came from Republican appointed justices. What has happened to Justice Ginsberg's clerks? So all five of Justice Ginsberg's clerks have been distributed amongst the Democratic appointed UH justices, And I did say five. Justice Ginsberg had agreed to take on Justice Stevens clerk before UH he had hired before he passed away, UM, and so that clerk is once again redistributed to yet another justice. Are there more women clerks and there used to be? Well, you know, Justice Barrett.

Her experience of hiring more diverse clerks, academically diverse clerks her first term out is actually very similar to Justice Kavanaugh, who hired the first all female UH clerk class for his chambers and his first term as well. And so since then we have seen the number of women rising,

largely due to Justice Kavanaugh's efforts. But Justice Ginsburg was also one of the justices who hired a large number of female clerks, and so we'll have to see if Justice any Colney Barrett continues that same direction or if we actually see the numbers follow a little bit under her tenure on the Court. And so Justice Barrett did not take part in some of the emergency election matters that came before the Court even after she was sworn in, but she did take part in the oral arguments. So

what was the case about. Well, these cases, the two cases of the justices heard were relatively lower profile. Um. They were about PRISM them Information Act cases UM, and another about retirement benefits for railroad employees. UM. But of course in the coming weeks she's gonna hear some real blockbusters, starting on Wednesday, UH, with a dispute between religious freedom and LGBT rights, and the next week a case regarding

the constitutionality of Bamacare or the Affordable Care Act. And of course we could still see the election come to the Supreme Court. Um. As you know, these challenges worked through the system. Thanks for being on the Bloomberg Law Show, Kimberly. That's Kimberly Strawbridge Robinson, Bloomberg Law Supreme Court reporter, a federal judge rejected abid by Republican activists to invalidate one seven thousand votes that were cast using drive through voting

in the most populous county in Texas. Federal Judge Andrew Hannan said, for lack of a nicer way of saying it, I ain't buying it, joining me as Laurel Culkins Bloomberg Legal reporter, there seemed to have been a lot of court action about the election in Texas. What's been happening?

Oh gosh, I think I've got PTSD from all the election challenges that have been filed against every single life and dice of the changes that Harris County in particular, which is home to Houston, UM every change the election officials have made trying to make it easier for people to vote during a pandemic, and they have been fought tooth and toneil every step of the way. It's been

really hard to keep up with who's fighting what. And it's like the challenge that we just heard a conclusion on the same group of let's call the Radical Republicans had brought the exact same challenge in state court um. They were shot down Sunday by the State Supreme Court that they had another shot at it today in front

of a federal judge who also shot them down. And I'm talking about the drive through voting challenge, which was one of the more unique options that Harris Canny came up with to try to put more voters into a voting boost. Tell us about the drive through because it seems as if they're checking, and it's a lot like

going to vote at the polls. It's exactly like going to vote at the polls, except you never get out of your car, which for Houston is like the best possible solution because everybody in Houston is like born with car keys in their hands. At the town that lived and dies by the car. So what is in ten different locations around the city. The county has set up these giant tents like you see when you go to parties or think of the circus, but it has drive

through lane built through the center of it. And you when the election clerk that's in that lane signals you as the voter, you drive forward and they make you turn off your cell phone. You have to follow all the regular procedures, You show your I D. You sign a voters register, just as if you had walked into the poll, they put a sanitized electronic tablet in your hands, You cast your vote, and you hand it back and it's plugged into the system and your vote counts, and

away you go. At least that's theoretically how it's supposed to happen. This was approved by the Secretary of State and it's been in process for quite a while since the summer. Right. Well, we actually had a test drive of the system in the runoff election that was held in Texas in July, and Harris County rolled out one drive through location just to if the concept would work.

And it worked outstandingly. Everybody loved it and there were no problems and there were no court challenges, and the Texas Secretary of State, who is the highest ranking election official in Texas, said hey, looks fine to me. So Harris County said, great, we'll double down. We'll put ten locations spread out all around the county and make it

easy for everybody. And things were going swimmingly until the voting was well underway when this group of Republicans loalthy could call them radicals, you can call them malcontents, you can call them patriots. What everything you want to say. They challenged that the county elections clerk who had come up with drive through voting didn't technically have the authority

to do so. Their argument was that only the Texas legislature can create new methods of voting, and so that's the fight was on from that point as to whether the county clerk had overstepped his bounds and creating new methods of voting. And today the judge in federal court in Houston essentially said, I think it's okay. At least it's okay for early voting. On a technicality, he threw

out the lawsuit. He said the Republicans who complained don't have an actual injury to their right to vote, so they don't even have the right to bring this complaint, and so he wouldn't even consider the rest of the arguments legally, except he said, now, I know you're going to go run over to the Fifth Circuit and appeal my decision, So let me give you the rest of

my thinking. And he said he sort of agreed with the people that looked at the Texas Election Code and said, well, it says on election day you're required to cast your vote in a building or in a structure, and he said the tents might not qualify under that rule. So he said on election day that might not be a legal place to cast your vote, but it certainly has

been a legal place under the early voting rules. And so the hundred did twenties seven thousand votes that have been cast so far in early voting are going to count their legally counting unless an appellate corps comes in with a different decisions. Why we're Republicans going after these votes in Harris County? Could there have been Republican votes

there too? Yes, In fact, they probably would have thrown out some Republican votes because there were quite a few elderly individuals who were voting at these drives through locations as a way to number one easily get around without mobility issues, but number two also avoid going into a crowded polling location and exposing themselves to potentially correct catching the coronavirus. So there were and older voters tend to vote Republican in Texas, so there would have been Republican

votes that were caught up in this. But the um the main thing is Harris County is sort of brown zero for the Democratics effort to flip the state of Texas from its traditional Republican stronghold to a Democratic stronghold. UM. The state has been trending democratic in the last uh several presidential elections, in mid term congressional elections, and all of its largest cities are now routinely voting Democratic, with Harris County, which is again the home of Houston, leading

the pack with the largest number of votes. So if a hundred and twenty seven thousand early voters in drives through, which was about ten of nearly a million and a half votes that cast in Harris County alone in early voting, if they could get those votes thrown out, UM, then this group of Republicans just felt they were that much closer to not losing to Democrats in Harris County. And the stakes are incredibly high because Texas is a winner

take all state for Electoral College votes. It has thirty eight states, and if Trump doesn't win those thirty eight states, it becomes very difficult for the math to come together for him to win the presidency. UM. Beyond the presidency, it's also UM, this has the This election has the ability to change the makeup of the Texas Congressional Delegation, which right now is strongly Republican, but it could lose some of that and become more and more tilted towards

the Democrats. And even more importantly, um the Democrats could gain control of the Texas State Legislature, which will determine the next set of redistricting maps. We will draw redistricting maps for the new legislative districts all over the country based on the census, and whoever controls the House in Texas will draw those maps. So it's a lot of stake, and that's why they were fighting so hard. The Texas Supreme Court also rejected this challenge. What was their reasoning, Well,

it's funny, they gave no reason. Interestingly enough, the Texas Supreme Court is Republican, and this challenge, this exact challenge was presented to them three different times by essentially an overlapping group of people, but at one point also included the Texas Democratic Party, and they presented this challenge and each time the Texas Supreme Court just rejected it without

any explanation. In one of the challenges, one of the justices wroted the sending opinion where he said he would have listened to the Republican objectors and and he would have given some credence to what they had to say. But he was the only one, and he was an outlier. So we don't actually have the benefit of the of the whole Supreme Court's ruling because they never gave us their thinking on it. That's Laurel Calkins, Bloomberg Legal Reporter.

That's it for the edition of the Bloomberg Law Show. Remember you can always hit the latest legal news on our Bloomberg Lawn podcast. You can find them on iTunes, SoundCloud, or at Bloomberg dot com, slash podcast, Slash Law. I'm June Grasso. Thanks so much for listening, and remember to tune to The Bloomberg Law Show every weeknight at ten pm Eastern right here on Bloomberg Radio.