How the Law Will Change with a More Conservative Court

of the women's rights movement. Once on the Court, she built a record as one of the most liberal members, supporting not only women's rights, but gay rights, abortion rights, and restrictions on the death penalty. Her work as a jurist was marked by her concern for the people the law affected. As she explained at the University of Buffalo in t at RBG Day, it's important to realize that law is not some kind of abstract exercise. It affects real people and gudition. Be cognizant of how the law

affects the people that law is meant to serve. So how will the court change? How will the law change if a conservative justice takes the place of Justice Ginsburg joining me as constitutional law scholar Stephen Vladdock, a professor at the University of Texas Law School. Steve how will putting another conservative on the Court affects Supreme Court jurisprudence

in the years to come. There's no question that if President Trump is able to get a conservative confirmed to Succeedsburg, it's going to move the Court really as far to the right as we can remember it, certainly as far as the right as it was at the beginning of the New Deal when it constantly awarded many of President

Roosevelt's initiatives. But you know, June perhaps even more conservative than that, and that's going to have obvious and participle impacts on everything from religious liberty to abortion, to the separation of powers. I mean, across the spectrum of constitutional and legal questions. We're looking at the court that's going to be very, very conservative for quite some time. Chief Justice Roberts moves in increments with another conservative justice, do

you see those changes happening more swiftly? I mean, I think it's possible. You know, there's no question that Chief Justice Roberts has shown, especially in the last couple of years, that he has a real institutionalist streak that sometimes leads him to vote in ways that might be different from how he'd actually vote if it were purely about what

he thinks the right answer is on the merits. With a sixth conservative justice on the court, too, that marginalizes the Chief Justice, and it means that the Conservatives can lose him or Justice Corsage or Kavanaugh and still have a majority in any one of these cases. And so it's going to take two of the Conservatives to cross over and join the professives in any of the sort of conventionally divisive cases for us to see anything other

than just conservative hit gemini on the court. We saw that this term right mean the Bostock case, of course, was six to three, not five to four with Justice Course and the Chief Justice joining. So then for professive justice. But June, those cases are going to be the exception, not the rule, Bostock being a landmark decision on LGBT rights. Now, in the past term, Justice Brett Kavanaugh only joined the Court's liberals in a five to four ruling in one case,

an antitrust dispute. Yet some legal observers are speculating that Kavanaugh will be at the center the swing vote in a more conservative court. Do you agree with that? I don't do not in the way that we saw it with you know, Justice Kennedy obviously for better part of twelve years, and with the Chief Justice the last couple of years. I think what we're gonna see as more akin to prior periods in the Court's history where there were two or three justices who were potentially thus twins.

So you know, I think in some cases the most likely justice to perhaps join the progressives might be Justice score Stitched. In some cases it might be Justice count Moment. Some kids might be the Chief. But again, you're gonna need two of them, and that's that thinks The critical difference is it's not just a swing of justice anymore. That's for the conservative majority to actually not win cases that are going to divide along ideological lines, there's gonna

need to swin justices. That's a very different calculation. It leads to very different internal politicking, and I think it's not hard to imagine how it's going to produce a heck of a lot fewer surprized crossover votes in the years to come. Justice Ginsburg was the leader of the Court's liberal block. Who will be the leader of the Court's conservative block. Yeah, I mean, I think there's gonna be some real split and perhaps even some tension among

the six conservative justices. Obviously, I think the Chief is still going to have a heck of a lot of both, you know, sort of formal and informal authority. It's still going to be his call when he's in the majority, who gets the opinion assignment. He still has a lot of I think, administrative control over the Court. But I think there's going to be some buy in for control

of that coalition among different justices. Does this mean that there are now five votes for some of the ideas that the Chief wasn't necessarily quick woman signed off on, for example, in garden cases? If so, you know the justice a leado who leaves as a Justice Thomas. I think it's going to be some interesting behind the scenes machinations among this new conservative majority. But you know, June, all that's really going to accept the day and today

is how these opinions are written. I don't think it's going to actually affect the results. Steve, does this mean new uncertainty about the fate of Obamacare? That law has headed to the Supreme Court for the third time, with arguments scheduled the week after the election. When this case was first decided by a Texas judge, many legal experts called it an outlier and a fluke. But is Obamacare now in jeopardy? So I'm asking, you know, Justice Ginsburg.

Passing and replacement I think changes the stakes a little bit. But I mean, I think keep in mind, you know what, when folks thought, okay, it's not going to go anywhere, the question in that case, which is I think mal capting what California University textis, is not really about the individual mandate. I mean, I think even California, I think, except that the court very well might strike down the usual mandate. Now the question is what happened as a result.

Does the rest of the statute fall? And this is the so called severability questions? And I think, you know, the presumption before justice cans grow passed away is that there were no more than four votes for the really really wacky, to my mind, almost specious separability argument that requires the entire statute to be thrown out, including the Medicaid expansion, including coverage for preexisting conditions, including things that have nothing at all to do with the individual mandate.

But the problem is, now four votes might be enough because if the court splits forward to four, if this happens before the new justice is converted, then that would affirm the lower court decision. You know, the Fifth Circuit had basically agreed with the disreport but said that back to reconsider separability analysis. So you know, I guess the short version is, I'm still not convinced that there are

four votes for that wacky severability holding. But whereas before there was no scenario where four ward have been enough, now the scenario it might be, and that that's I think that's how the fix obtainion. The Court has had many rulings on social equality issues over the past decade, gay marriage being one of them. There's a more conservative court likely to extend those rulings or reverse them, for example, the gay marriage decision in No Burger Feild you know didn't.

It's a good question. I think we ought to be careful about the difference between extending these rulings and not reversing them, because those are two very different responses. I certainly don't expect a new sixth Justice conservative majority to do anything to expand upon Burgo Fell or boss Stop or any of other cases. But I'm also not sure that they'll be in a hurry to overrule them to

quite same degree as other cases. I mean, I think, you know, there is some danger in just sort of knee jerk overruling of cases you don't like when it comes to the public perception of the court. When it

comes to course legitimacy. You know, I think the Court will still be worried about provoking too much of a backlash if as opposed to expend in their precedent, they start actually just getting rid of them very atom and you know, it's very possible to kind find how the election goes this November, that that's the kind of backlash the Court is going to be ill ill inclined to provoke.

Is abortion Is Roe v. Wade included in that? No, I mean, I think Row, You know, I think Row is trickier because I think Row is first of all, Rowe has been so controversial for so long, and the Court has shipped away so thoroughly at it already, and it's clearly such a critical part of what's motivating the conservatives, you know, to get this pick through now is to

finally get rid of Row. So but June, the price they might pay for overturning Row, or at least reducing it to the normal is not there is an inability to do that multiple other times. I mean, I think a court that spends next five years it's overturning one progressive president after another, It's going to be a court that I think really starts to lose some legitimacy in the eyes of a large chunk of the American population. President Trump says he's going to a point to a woman,

and he has a list of very conservative juris. Does it matter which woman on that list he chooses. Is one more conservative than the other? Is one likely to affect the court more than the other? I think that the difference between them will probably cash out in you know, a small number of cases over time where just like Seis Kavanaugh in the Apple antitrust case, like, there are gonna be idiosyncratic areas where any one of the conservatives

might be inclined anyone is the progressive um. And that's true I think for any of the folks on the President's shortlist. I think the the larger point, though, is that those cases are all gonna the outliers June, and that you know there's going to be a solid six justice block in most cases, and a block that can afford to lose one of them in all cases, and that the only cases where we're really going to see something weird happened is where you actually lose two of

those six Conservatives. And again, I mean, just looking back at the last couple of terms, the only high profile example of that where you know too, but only two of the Conservatives crossed over in a high profile case was the boss Stock Title seven case. So now a lot of the talk from Democrats and progressive has been, well, if we get the White House, if we take over the Senate, then let's expand the court. It's not surprising

that that's where these folks are. But I think, you know, that's a very short term reaction as opposed to long term right that that it seems to me that we should be thinking about both the short term. In the long term, expand the Supreme Court maybe emotionally satisfying in

the short term. The problem is is that you know, once you cross that group of con then the next time the Republicans are in power, they expand the court, and then the Democrats expand the court in response, and so like fifty years from now, the court has thirty

seven justices and no legitimacy. And so since that, the much more significant conversation has is, you know, how do we sort of think long term about ways of having less turn on the actuarial tables and on the fact that you know, people pass away at different and unfrifcable times. You know, should we scale back some of the Court's jurisdiction. Should there be cases that the Court has traditionally heard

that we don't want to hear anymore. And I think there's there are a lot of court reforms that we ought to be discussed in the notion that we should expand the court just because Democrats can you know, I understand the impulse, and I just think it's very shortsighted. What about the Democrats argument that the Republicans haven't been playing by traditional rules. First, they stopped Merrick Garland from

even getting an up or down vote. Now are changing the rules that they said were in place for Merrick Garland. So the Democratic argument is the Republicans have already messed with the process and made this political. It sounds tried to say two wrongs don't make a right, but I mean i'shing to day is just again, I think we have to keep you know, we have to sort of carefully think through the long term implications of such a move.

And you know, if the Democrats say today we're justifying the stay on the court to eleven or thirteen justices, of course the Republicans will say tomorrow and then we're justified and standing of the seventeen. And you know, once again, this is why I think, you know, we have to think both shorts from and long term. You know, there are ways, I think, to respond to the norm destructive behavior of Republicans when it's come to the Supreme Court

in the last four years. There are ways to respond to the hypocrisy of Republican senators who swore on a stack in tween that their opposition to fill in the Scalia seat was categorical and it was not just because it was President Obama who was nominating him. But I don't think that's the way to do that, June is to open the door to destroying the court. So one suggestion for changing the court is to put in term

limits for the justices. In fact, House Democrats are planning to introduce legislation next week to limit justice's terms to eighteen years. There are other ideas, but tell us about limiting the jurisdiction of the court. How would that work? Yeah, I mean, you know, Congress has a heck of a lot of control over much of what the Supreme Court does.

Coldress control the size of the court. Coloss controls when it sits Colgress controls what cases it hears, and so I think, you know, one of the thames Congress could consider is whether there are categories of cases that should now you know, perhaps be taken away from the Supreme Court. Are there? We want the Supreme courtside in more cases

the courts'sie in different cases. You know, Congress, since really thees June has largely gotten out of the business of playing that sort of ongoing roles in tailoring and to finding the Supreme Court's jurisdiction, maybe it's time for Congress

to get back into that business. I mean, I think, you know, the bottom line is that there's a heck of a lot Congress could do to, you know, try to sort of curb some of the excess of the Supreme Court before it starts, Adam, and that's you know, the notion that that it's at But I think is what's misleading here. There's actually a bunch of structural court reforms that I think we can should consider before we start. Adam chairs to the bench. Thanks for being on the

Bloomberg Law Show, Steve. That's constitutional law Professor Stephen Vladdock of the University of Texas Law School. As testament to one Asia's promise, the daughter and granddaughter of immigrants, SIT's a lihest court in the land. Justice Ruth Bader Ginsburg wrote landmark opinions that advanced gender equality and rights were disabled Americans and immigrants. She was proud of her background and spoke about it when she was honored by the

American Law Institute. What is it differ minutes between a bookkeeper in New York City's Comment District and the Supreme Court Justice? One generation? My life bears witness the difference between the opportunities open to my mother and those open to me. The late Supreme Court justice made history and death as she did in life. When she was honored on Friday as the first woman to lie in state

at the US Capitol. Here's how Speaker Nancy Pelosi, it is with profound sorrow and deep sympathy to the Ginsburg family that I have the high honor to welcome Justice Ruth Bader Ginsburg to lie in state and the capital of the United States. Will conservatives legal fantasies soon become realities? How will another conservative justice on the Supreme Court change the law? Joining me? As Neil Kinkoff, a professor at the Georgia's Day University College of Law, Neil in general,

how would adding another conservative justice change the court? Well, the general impact will be to move the court dramatically to the right. So for the last about ten years, before Anthony Kennedy retired, the court was really known as the Kennedy Court because he was the swing vote and in all of the pivotal cases he would cast the deciding vote, so he pretty well determined the direction of

the court. After his retirement, there was concerned that him being replaced by Justice Gorsuch would really cement the hold of the right wing on the court. But then Justice Roberts played the role of the swing vote and the turn to the right wasn't nearly so decisive. So right now there's a five to four conservative majority on the Court, but it's not as solid as I think people assumed it would be because Roberts has in a number of

high profile cases UM sided with the liberal wing. UM. But with Ginsburg leaving, that makes it five to three. And if she's replaced by a very conservative judge, and all of those on the short list are very conservative, that makes the majority six to three. And even if Chief Justice Roberts continues to occasionally side with the liberal wing, that side would still lose by a vote of five to four UM. So that the Court would become very

solidly very conservative. When we look at how a more conservative court would change the law, the first thing that seems to be at risk is Obamacare because the Supreme Court is holding oral arguments the week after the election on the Trump administration trying to have the Court declared the law invalid. What do you think the fate of Obamacare would have been with RBG on the court and now without RBG on the court? Sure, so her her

vote was crucial to upholding Obamacare. UM that she wasn't the swing vote, right, That was really Chief Justice Roberts who added his vote to the four liberals, but now without Justice ginsburg Um, if if she is replaced by a reliable conservative, then that means that Obamacare can be struck down on any number of different grounds. When this first came out, this Obamacare lawsuit, it was considered almost a silly lawsuit. Most you know, legal experts were saying

that it would never stand up. How did we get to the Supreme Court in this point? Right? Because conservative jurists have been committed to the destruction of Obamacare, and no argument is too frivolous to that end um. And so this is an example of it. Had this case come to the Supreme Court back when the Supreme Court first ruled on Obamacare, I would not have been surprised if it had gotten zero votes. Um. But now I wouldn't be at all surprised to see it kept five.

A lot of legal articles are talking about Kavanaugh as now the swing vote on this particular topic. In other contexts, he has been reluctant to throw out the entire law. So is it possible that the Justices might agree to sever that portion of the law and leave the law in place. I think that's really unlikely. I understand Justice Kavanaugh may not want, given the controversy around his appointment, may not want to be the decisive vote to strike

down Obamacare. Um, but that's the only thing I can think that would incline him towards keeping it in place. And now, abortion rights, this is what comes up every time there is a court appointment, and it seems as if abortion rights were in jeopardy even before the death of RBG. It seems as if there's been an incremental approach to abortion rights. No one is saying, let's reverse

Roe v. Wade. Might that change with a more conservative court? Yes, I think it will change with a more conservative court. The incremental changes have been all from the time of Rope forward have all been towards reducing the scope of the right to an abortion. So um. The really operative decision was the decision in the early nineties in a case called Casey, where the Supreme Court formally upheld Rowe

but replaced it with an undue burden standard. And since that case was decided now nearly thirty years ago, the Court has accepted all kinds of different regulations of abortion that make it virtually impossible bull in some states to access an abortion. But the Supreme Court has upheld those

saying they're not an undue burden um. The the loan exception to that is a case from a few years ago from Texas, where Texas imposed regulations that are so burdensome that it would become impossible for abortion clinics to operate in Texas. In that case, the Supreme Court, with Justice Kennedy casting the swing and deciding vote, struck down

Texas law. That set of laws was also adopted by Louisiana, and in the case that the Court decided last year, the Court stuck with its precedent um, and that time it was Justice Roberts who provided the swing vote only on the ground that he thought, by Starry decisive, he should stick with the president, and no one had asked them to reconsider Row versus Way. Now. That case then sort of amounted to an invitation to parties that directly

ask for the Court to overrule Row. And if there is now a sixth conservative justice on the Court, it is all but a foregone conclusion that the Supreme Court will over rule Row versus Way. Just I want to clarify one thing. That doesn't mean that states can't have laws that allow abortions. It just means that states have decision up to them. That's right. Um. It allows the states to make their own determination. Now, gun rights, The Court attempted to take up a gun rights case last term,

but it turned out to be moot. They haven't decided a gun case in a decade. What kind of rights are on the table here now? So the Supreme Court held, um that the Second Amendment protects an individual's right to possess a gun in their home for purposes of self protection, that that is something that cannot be forbidden to them. But it didn't hold anything beyond that right. So that it decided, I think it was in two thousand and

five UM. And then the the subsequent case was a case that held that that right applies not only against the federal government and federal regulation, but against state governments and state regulations as well. They have not told us sort of any more than that, just what the Second Amendment protects? So does it protect the right to possess a handgun outside the house when you're walking down the street. Does it protect your right to have one when you're

at work? Does it protect your right to have one if you're on an airplane or in an airport? Does it protect weapons other than handguns? Right? So, the Court in its original decision emphasized that handguns are in fact the most common weapon chosen for self protection. So would it apply to other weapons, to semi automatic um um firearms?

Does it apply to restrictions on magazines and magazine capacity, or to the nature of of of the bullets right, hollow tip bullets and so called cop killer bullets and and things like that, um? Right? And where does it apply? Right? Does it apply in national parks? Does it apply? So?

There are many, many questions that have been left unanswered, and one of the principal legal questions to answer that will help the court resolve those those more specific disputes I've just been talking about, is what standard of review to apply? Right? What level of protection is going to be given to the right to possess um, to possess arms for purposes of self defense? Is that subject to merely rational basis scrutiny? Does the court apply strict scrutiny?

Should the Court come up with some different level of scrutiny that's in between rational basis and strict scrutiny? Um? And so those are all really important legal questions that that first case left open and the Court hasn't returned to since. Um. You know, had the court addressed those questions early on, I think it would have been much more restrictive with respect to the rights protected under the

Second Amendment. But because the field has been left wide open, this much more conservative court taking up those questions is likely to be much more expansive in terms of what's protected under the Second Amendment. Affirmative action, it's another area that's under assault. You have this conservative group suing Harvard that's before the Federal Court of Appeals. You have the

Trump administration sending letters to Yale University. What's at stake as far as if afirmative action is concerned, Well, I think what's at stake is the ability of universities to be truly committed to racial diversity in their classes. Um. And I say that because partly because many universities are

in fact state owned. The university where I teaches a state institution, but even private universities receive government funds, and so they're subject to limitations on their ability to engage in in fact, prohibitions on their ability to engage in discrimination on account of race and so if the Court thinks of affirmative action as a form of race discrimination,

then that's prohibited. And it has long been a central tenet of the conservative legal movement that any distinction based upon race is discrimination, and so affirmative action is categorically unconstitutional. Is the affirmative action hanging in the balance anyway? Would Chief Justice Roberts have been a swing vote there? Or is it likely that if it reached the court it

would be stricken down or it would be limited anyway? Yes, this is the case that much like abortion UM, the conservative majority was was really UM cutting back on the ability of universities to make race conscious decisions about admissions UM. So, so in a sense that this outcome was as was

already possible. I think adding a sixth vote, though, to the conservative majority, just makes it all the more likely that the Court will cut back in a dramatic and sweeping fashion that makes it virtually impossible for any university to engage in race conscious admissions decisions. And I I just have to note how out of step that is with where the country seems to be right now. And this just ended summer of of upheaval over issues of

racial justice. For the Court to step in and take this entirely off the table affirmative action as a remedy, entirely off the table. UM. It would apply not just in the context of university admitted admissions, but to any government action, and so potentially to a range of government actions that are aimed at trying to respond to the very legitimate calls for racial equity and justice. Finally, let's talk about religious rights. And it seems that the Court

has been expanding religious rights for some time. Certainly in the cases that came up this this term, they expanded religious rights. So how would having another conservative on the court change that or amplify what they're doing. Well, I think you're right to suggest it would amplify rather than change. So the Court had been moving in a direction that was expansively protective of free exercise rights asserted not just

by individuals but even strangely enough by corporations. UM, and those moves are still at a very kind of early stage. So I think adding a sixth conservative just amplifies, UM, amplifies that voice, and makes possible down the road UM, extensions of these principles that I think might not have been available if there were only five Conservatives, with one occasionally willing to swing to the other side. Are there any area is where people are not expecting changes where

a conservative court might change things. Yeah, well, at least one sort of immediately suggests itself, And that's the Supreme Court's decision in Alberta Fell versus Hodges, the case that legalized same sex marriage, or more accurately, forbid states to prohibit same sex marriages. Um. That case was decided by a five to four majority, with Justice Kennedy swinging to

the liberals and providing the decisive vote. With him having been replaced by Justice core Such and adding a new Conservative justice to replace Justice Ginsburg, there are potentially six votes to overrule Alberta Fell versus Hodges. So, while there's been a real spotlight on Roe versus Wade, and justly so, I think, um, once this confirmation goes through, if it does is ro versus Wade, is is is toast um. But I think attention can quickly turn from that to

overruling the same sex marriage case. Um, the votes are potentially there. I say not just potentially, but it would appear that the votes are there. Um unless there's something that makes the Court uneasy about overruling its precedents, But if they're willing to overrule Row, why wouldn't they be willing to overrule Burga Fell. Thanks for being on the Bloomberg Law Show, Neil. That's Neil Kincaugh, a professor at the Georgia State University College of Law. And that's it

for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law 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 Blow Show every weeknight at ten pm Eastern right here on Bloomberg Radio.