Chief Justice Refuses to Overturn Precedent

patterns and trends. Joining me to do just that is Constitutional law professor Stephen Flattock of the University of Texas School of Law. So Steve, the cases that garnered the headlines last week, we're about partisan Jerryman during in the census citizenship question, But lurking in the shadows, so to speak, was a case on administrative law, not a very sexy area of law, but a case that tells a lot. Yeah.

So the cases called kaisar versus Welcome. Ka is actually a marine veteran who was basically embroiled in this dispute with v A over the denial of benefits rising out of his PTSD, and the actual legal question June was whether the v A was entitled to deference an interpreting

ambiguous language in its own regulations. The Federal Circuit, relying on prior court precedent, had said yes, and the case had been viewed I think pretty widely as an opportunity to narrow, if not get rid of that precedent, basically to reduce the amount of deference the administrative agencies provide or art received from federal courts and the Supreme Court, largely because of a narrow vote by Chief Justice John Roberts declined to overturn the relevant precedent a case called

our but now did pretty sharply, so that you know it's going to be a lot less likely going forward that agencies like the v A will will win in context in which their case turns on whether their interpretation prevails over a court's interpretation. But June, I think Kaiser is important not because of the result, but because I think we saw from the four justices who concurred in part and the sent it in part, that they really

would go much much further. I mean, Justice Gorsages sent an opinion if it received a fifth vote, I think would be a pretty radical reimagine him of exactly what federal administrative agencies are allowed to do and more importantly, what they're not allowed to do. So, Chief Justice John Roberts, as you mentioned the deciding vote, he joined the liberal justice solely on that basis of starring decisives, which is

precedent should be respected. Do you believe he did that because he didn't want another case there are two cases where they overturned precedent that he didn't want another case where that happened and so the image of the court, or because he believes in the fundamentals of the majority opinion. It's a good question, June. I'm not sure. I'm not sure I know the answer. I mean, I think, you know, for the Chief, it's more likely that that was a

sort of a sickly something to rely upon. You know, he didn't really sort of explain his own views in much detail. I mean, he wrote a short, deeper statement, but I think, you know, perhaps the larger point here is that for the Chief, and this is what he said in his separate opinion, he didn't see that much daylight between Justice Kagan's opinion and the opinion to Justice Course that wrote nominally in behalf of the dissenters. You know, June, that that may be right when the case like that

guess to the Supreme Court. I think there's a lot of daylight between an opinion that narrows this kind of deference but still leaves it on the books and one that wipes away all together when we're talking about how lower court judges are supposed to deal with future cases.

And I think to me the important part here about the Chief is, you know, yes, he sort of joined the liberals here, but he also joined Justice Gorse as his dissent in the gun Be case about the non delegation doctrine and about Congress's power or lack thereof, to delegate legislative and judicial authority to administrative agencies. You know, Justice course is just desent in that case is a

pretty radical and fundamental assault and modern administrative law. And if the Chief is fully on board with where gorsages in that case, you know, I think his vote in kais or becomes much less important going forward, especially if they're you know, as soon a majority of Justice to adopt the Gorse has just sent in Gundhi for district court judges. How has this term changed administrative law if

at all the interpretations? Well, I mean, I think the short answer is it's changed it a little bit, but it is portending massive changes coming down the pike. And so I think in the short term, the circuit judges who are the ones who most often grapple with these hard questions of administrative law and sort of trying to figure out what to do with vague or ambiguous language

and agency regulations and agency statutes. I think the circuit judges are for the moment, you know, going to be taking their queue front Chief Justice Roberts and basically given agencies less but not zero difference in these matters, taking a little more seriously the idea that they have an independent obligation even when the language is ambigious. But you know, June,

that's just in the short term. I think the real question is whether there's going to be a fifth vote in the long term for the position Justice Gorsuch espoused in Gundhi. In that case, Justice Kavanaugh did not participate because it was argued right before he was confirmed, and Justice Aldo, who cast the fifth vote in favor of the judgment, that he was only doing that because there

wasn't a full court. So if we assume a leado would join Gorsuch as the scent in the future case, and if we assume that, I think we can that Justice Kavanaugh would be deeply sympathetic to that as well. I think the real story of this term from an administrative law perspective is that the writing is on the wall for a pretty stunning change and shift in the relationship between federal courts and federal administrative agencies. It's not going to happen tomorrow, but I think it could happen

pretty soon. This is the first term since Kavanaugh succeeded swing vote Justice Anthony Kennedy. There were only two decisions that explicitly overturned press since But did Conservatives gain with that change in justices? Well, I don't think there's any question. I mean, I think we could point to a lot of examples June, but the one that really jumps out to me is the partisan gerry Mandarin case the Supreme

Court decided last Thursday. So in root O versus common Cause, you have Chief Justice Roberts writing for a five four majority that challenges to severe partisan jerry mandarin. Even if we think that the severe partisan gerryman is unconstitutional, are not justiciabal, They're not the kinds of disputes that the

federal courts have the power and ability to resolve. And this is a huge deal because previously the Court had actually split on whether these disputes could go ahead, on whether federal courts could hear them, with four justices saying no, four justician yes, and Justice Kennedy basically hanging out in the middle and saying, I'm not yet convinced. He wrote in two thousand and four that we can handle these cases,

but I'm not yet convinced that we can't. And what we see in the ruling from last Thursday is the difference that Kavanaugh makes, where, you know, without writing separately, he signs on in full to to Justice roberts opinion, basically saying the federal courts have nothing to do with partisan gerrymander and going forward June, that's an enormous decision with regard to what it's going to mean for redrawing of district maps in the coming years, and it's one

that I think would not have been possible if Anthony Kennedy were still on the court. Is Chief Justice John Roberts the new swing vote? Oh, I don't think there's any question looking at this term that with the exception of maybe criminal cases where it looks more and more like Justice Gorse, which is going to be the most likely possibility for a stiff vote for criminal defendants on the big hot button socially divisive cases. To Justice Roberts

is absolutely the swing vote. Now that doesn't make him a moderate. I mean, I think there's a difference between, you know, being the swing vote and being as Justice Kennedy was often a moderate. But it does mean that a lot of these doctrines, our rights and liberties, all of this it is going. It's forn on where chiefs defice Roberts comes down. Thank you so much, Steve that Stephen Bladdock, Professor at the Universe of Texas School 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 Brosso. This is Bloomberg