Is Roberts the Most Powerful Chief Justice?

He appreciated the role of the Court uh in sort of bringing the United States together under the Constitution, under the rule of law, and he had a very particular focus. He's the author of some great decisions that define our nation. But he also had a very modest and measured understanding of his job, so he was very restrained. He had a way of diffusing political controversy and focusing on case.

Roberts may display some of Marshall's attributes, but his power, especially in cases involving divisive cultural issues in our country, exceeds that of almost any other Chief Justice. Roberts cast the deciding vote in all ten cases this term in

which there was a five to four decision. In the past two weeks, the Chief's donned many conservatives by joining with the liberal justices to strike down limitations on abortion rights, to save Dreamers from deportation, and to expand lgbt Q rights, But he sided with the conservatives to boost religious schools and the president's power to fire the head of an independent agency. Joining me is Harold Granted, Professor at the Chicago Kent College of Law. How everyone seems to agree

that the Chief is an institutionalist. Some critics have even used that term against him. Explain what that means for a chief justice. He cares about the respect and the integrity of courts in general and the Supreme Court in particular. Famously, he retorted to President Trump, there are no Trump judges

or Obama judges. We just have judges. And he wants the judiciary to be viewed as out of the partisan fray within which it's too often dragged, And so he's trying to build up a kind of just in the spree of court. But a reputation for judges as being, if not bumpires, at least being fossiful independent jurists who the public can rely upon. Is that true of most chief Justices? Do they usually have that kind of impetus

to protect the institution and the judiciary in general. Well, it makes this so unique in our time in history is the division and the court. We all think and most times it's true that the chief can be the deciding vote in a close case. So many other Chief Justices have not had this sort of breakdown of for liberal and for conservative juices. And of course he's conservative, he's very conservative. But yet he cares not just in rubbers amping conservative results, but in trying to build this

integrity for the court. And that's been manifested in some of the recent decisions of the term. Let's talk about some of the high profile cases involving divisive issues where the chiefs study what the liberal justice is to make the majority. On Monday, there was the abortion rights case

where Robert said he was bound by president. And what's remarkable about this case is that four years ago he voted to uphold the very serious restrictions on abortion access that Texas has provided Louisiana copied Texas statute, and then four years later Chief Justice Roberts decided that because he lost four years ago, he should lose again now, which is pretty extraordinary. It suggests that He doesn't want the court to be seen as just because there's a change

in personnel, they changed the results. That's really what's at stake here in the decision. And he just said, I want people to understand that we're a court to because we have a different that we've gone become more conservative, We're not going to unravel what just occurred four years ago. Very sort of bold step forward by the Chief. Then you have a decision upholding DACA, which echoed the census case, where the Chief you know, wasn't buying the Trump administration's

explanations and said you have to do better. And part of this seems to me, I don't think it's really a direction against President Trump at all, but I think it's a recognition that if we're going to be tough on agencies, we need to be tough on agencies when they're Republican as well as be tough on agencies when

they're democratic. And so in the DOCCA case, he basically told the agency, the Department of Homeland Security, that it couldn't go back and give a better rationality justification for the recision of DOCCA because the first time that they tried to explain it they just said, oh, Obama didn't have the power, and that really isn't a satisfactory explanation

even by the dissenters in the case. But they went back several months later and gave i think, a relatively coherent justification for why they were changing Obama's policy that should have been held constitutional. But that initial failure to the chief was enough for him to break away from the conservative justices and say, you know, we're going to hold your feet to the fire, and you're gonna have to give a persuasive explanation at the time you change

your policy. You didn't do that until you go back and accomplish the same result if you want to, but you're gonna have to do it the right way in

the future. An interesting decision, again somewhat like the census case, as you mentioned, which said that even though he's very sympathetic to the end result, he went with the liberal wing of the court in striking down the Trump administration's effort to really change one of the signal accomplishments of the Obama era, which was the refuge for the dreamers. The decision that really drew a lot of political was the lgbt Q rights in job discrimination case, in which

conservative Justice Neil Gorst joined with Justice Roberts in the majority. Yeah, so here we have a slightly different situation on one hand, because Justice Gorsage did split with his conservative brethren in that case, which made it a six to three decisions. Interesting from Chief Justice Robert's perspective is he was a notable dissenter from the gay marriage case, very eloquent, I might add, and then he decided to vote with the

majority here. And the difference, you could say, is that we're now opining about a statute to reach of what Congress meant in nineteen sixty four, whereas the Constitution obviously is more enduring. And what might be seen in these cases is that the Chief will be uncompromising in his interpretation of the Constitution, and we saw that in the CFPB, the Consumer Finance Privacy Bureau, but that he will give

on agency action, he will give a statutory action. He will be more you could say it independent, more institutional binding than those types of cases. He has been the deciding vote in all of the five four votes this term, and he also has the power of being the chief so beyond the swing vote, has any other chief justice in our history had that kind of power. Given the composition the court, he is exercised in the power much

more effectively than his predecessors had. Some people think Chief Justice Hues way back when seventy five years ago, during the FDR days, had somewhat similar power in terms of trying to keep the court independent despite FDR's insistence that they change course. But of course they finally did buggle under to FDR and did become much more living or welcoming to the rise of the national government and its agencies. But you have to look best far back. I mean,

certainly the numbers speak for themselves. We've never had a period of history, at least in the less probably fifty five years, where the Chief Justice been able to dominate the court's rulings. I think of the cases in the last two years or so, he's been in the majority, whether it's five four, six, three, and he's able and then to have that kind of incredible influence is really unique in our history, and we're seeing how it's played out.

People say he's an incrementalist, which means he doesn't want to air out too many issues. He's been using the searcher our power to limit the type of controversial cases that go to the court. The Court recently has decided to reject many cases involving the Second Amendment, which is the gun rights issue, which is a hot Buddon issue, many cases involving sanctuary cities, another hot Buddon issue, cases

involving qualified immunity. And in all these cases, he's trying to sort of camp down the political acrimony on the court and I think slowly build up the court stature for the future. And if it's a five four case, he's in charge, and he decides who writes it, and he knows if another justice will write the decision broadly or are more incrementally, and he tries to adopt a more incremental approach whoever possible. It seems as if many

conservatives are forgetting some of Robert's past decisions. For example, one that he got a lot of criticism for was the voting rights case. Yeah, I mean both in the voting rights cases and particularly in the gerrymandering cases, he's been incredibly conservative. And again just this week, this is the first abortion case he's ever cited himself. With those favoring a right to choose, so this is the first time.

So he's been very conservative in many cases, and in the hot button case for this term will be the Trump tactics, and we'll see what he does. If you consider Justices David Suitor, Sandra Day O'Connor, and Anthony Kennedy, does how long you're on the court play a role in changing the way you view cases. My own opinion is Chief Justice Robert is not changing. Certainly. I think he has been somewhat discussed with aspect of President Trump's rule,

but I think he's fundamentally conservative. We're not going to see that kind of Suitor switch or Justice Stevens switch, or even Justice White switch. But yet again, I think that the layer for Chief Justice Roberts is not that he's becoming more moderate, but that he really sees a crisis for the Court and he's in a unique role to do everything he can to try to help the respect and dignity of this August institution. Thanks so much for being on Bloomberg Lahaw. That's Harold Grant, professor at

the Chicago Kent College of Law. In a five to four decision down ideological lines, the Supreme Court gave religious schools a victory this week, ruling that states that offered taxpayer subsidies to private schools must do the same for religious schools. Chief Justice John Roberts joined the conservatives on the court and the decision that lowers the wall between

church and state. In the majority opinion, Roberts wrote that the Montana Supreme Court violated the US constitutions protection of the free exercise of religion when it threw out a scholarship program because most of the money went to students attending faith based schools. His reasoning echo that expressed by Justice Samuel Alito during the oral arguments in the case.

There's a difference between saying we're not going to fund religious activities and saying we're going to discriminate based on religion. That's the point that nobody's claiming the state has an obligation to make particular grants to religious institutions. My guest is Richard Garnett, a professor at the University of Notre Dame Law School. Would you call this a landmark ruling?

Did it go beyond previous decisions on religion? So? Yes and no. On the one hand, it's a very natural and probably expected next step from a case that was decided two years ago called Trinity Lutheran. That case involved a program in Missouri that provided recycled tire parts to various nonprofits that they could use for playgrounds, but it

excluded a religious daycare center from participating in. The Court said there that if the government's got a general benefit program that it makes available to qualified applicants, it can't

selectively exclude religious applicants. And the court in that decision was seven to two, and there were some interesting little cryptic footnotes that made it clear that all of the justices were aware that the next question was going to be and the next case was going to involve schools and school funding, and that's exactly what happened in this Espinosa case. So in that sense, it's again at the

other shoe dropping that. On the other hand, if you step back the kind of thirty ft level, the case represents a very interesting and pretty clear change in the Court's doctrine over the last forty years. Let's say, even fifty years ago, the Supreme Court would have been very skeptical about whether the Constitution even permitted governments to provide

neutral scholarship benefits to kids. Attending religiou schools. There are all these decisions in the seventies and early eighties where the court instructees down as violations of the separation of

church and state. But over the decades, the Court's doctrine has just evolved, and it's moved away from what some would call kind of strict no aid separation to more of a neutrality approach, where as long as religious beneficiaries are being treated equally to non religious qualifying beneficiaries, that's permissible. And then you add to that this idea that the

free exercise clause doesn't permit discrimination. So one way to see what's happened over the last several decades is that assistance that might have been impermissible thirty or forty years ago is now under the new doctrine required. We went from not allowing even neutral aid to now requiring even handed fundings. You know, we see developments in the courts docritione in lots of areas all the time, but certainly

in this area there has been a change. Critics would say that the Roberts Court seems to be blurring the line between church and state, is on its way to erasing the line yeah, I think critics would say that, I think they'd be mistaken. I mean a lot of depends on what one thinks the appropriate line between church and state is. So I think the Roberts majority believes, and this is probably my view as well, that the separation of church and state is about keeping religious and

political power separate. At its core, it means, you know, we don't want bishops deciding what the tax rate is, and we don't want politicians deciding what songs they're going to sing at mass. But properly understood, the separation of church and state in the American tradition has never ruled out all forms of cooperation between religious entities in the

one hand and government on the other. So, you know, people who returned from World War two used government funds on the g I Bill to attend Notre Dame in Boston College. Religious hospitals have been getting reimbursed by Medicare forever. The government funded all kinds of educational and other projects working with religious nonprofits. It delivers all kinds of social services to low income people through churches. Now, So the separation of church and state is an important principle in

our edition. But I think what the Roberts Courts believes is that it's a mistake to think that separation rules out all forms of cooperation. And you know, education is a public good, it's a secular good, and if qualified education is provided by a religious school, I think the Roberts Courts position is that that public good isn't somehow tainted just because it's being delivered by St. Cecilia's rather than PS. You could briefly explain the Chief's reasoning in

his majority opinion. Sure, you can think of it as having two steps. So step one is to say, and this has been the law now for a while, that a state is allowed to provide it's permissible to provide um neutral, even handed aid, whether it's a tax credit or what have you. That's what that's what this case involved, two kids attending religious schools. Then the next step you ask, well, Montana has decided that it's going to provide aid to

secular private school but not religious private schools. Is Montana permitted to do that? Because, as the Chief frames it, that's a form of discrimination. You're saying, here's a benefit, you can use it at a secular private schools, but you can't use it at religious ones. So is that

is that discrimination permissible? And under the courts doctrines, discrimination like that, you know, different differential treatment like that is only permissible if it's necessary to promote an important government purpose. And the Chief Justice says, well, the government doesn't have an important public purpose. Indeed, it doesn't even have a legitimate public purpose in denying funding that the constitution permits.

So although some critics framed this in terms of separation of church and state and so on, I think for the Chief this is really a case about equal treatment and non discrimination. Right. The free exercise clause requires, among other things, that religious activities and religious believers not be discriminated against just because they're religious. And as he saw it, that's what this Montana rule did. Didn't say that the education being provided, you know, wasn't of a certain quality.

It didn't say that the beneficiaries were somehow disqualified because of income or something. The only reason why the benefits couldn't be used to these schools was because of the religious nature, the religious status as he calls it, of the schools. And so that kind of discrimination on the basis of religious status is current law. It is very hard to justify, and again Montana's reasoning that wasn't determined to rest on a strong enough government interest to justify

that discrimination. The dissent basically said, you know, Montana is treating people neutrally because it closed down the scholarship program to all and justice, so to Mayor called this decision by the majority perverse without any need or power to do so. The Court appears to require a state to reinstate a tax credit program that the Constitution did not demand in the first place. The dissenters have a number

of kind of lines of attack. UM. One lineup attack is that the dissenting justices believe that the established I think they believe that they really are strong establishment cause

reasons why a state would want to not fund religious schools. Um. They don't necessarily come out and say that they want to reverse the Supreme Court's decisions permitting school choice, but it's clear that for the dissenters, they're more sympathetic to Montana's desire just to keep public funds away from religious school So that's that's part of what's going on on

the dissenting side. Another thing that's going on, as you said, is that there was a kind of a procedural oddity in this case, which is that what the Montana Supreme Court did was to say, you know, no, no one can get the benefits of this UM tax credit program whether they're going to secular or religious private school. So that that was the remedy that the Montana Court granted.

But I think what the majority UH says in response is, look, the reason why the Montana Supreme Court shut down this program was because of its interpretation of the Montana Provision,

which requires discrimination against religious schools. So the the in a sense, the majority and that the centers are talking past each other a little bit, because the majority says, look, the Montana Court did what it did because of this discriminatory UM Montana Provision, and the reason why these parents ended up losing the benefits that they were otherwise entitled

to was because of this discriminatory provision. But as you point out, the dissenters say, well, you know, maybe it's an interesting theoretical question whether UM this kind of discrimination is unconstitutional, But in this particular case, what Montana did was treat non public school kids the same. So in a way, the dissenters are focusing on the Montana Supreme Court's remedy, and the majority is focusing on the Montana constitutional provision and that that that is a really interesting

point of of disagreement between the two. I suspect that um, the four dissenters would have dissented in any event, that is, even if the even if the Montana Supreme Court had only singled out the parents who were attending religious schools. I think that the Center's position is being um driven substantially by this idea that Montana should be permitted to decide not to fund religious schools. That's really the that's really the sticking point between the majority and the descent.

I believe states have these blamee amendments that block religious schools from getting pel like funds. Are those now unconstitutional? Well, a couple of things, they're The first thing to keep in mind is that, UM, a lot of these these provisions in the various state constitutions, there are slight but

often important variations among them. So, you know, state state supreme courts have the primary authority to interpret state constitutions, and with respect to a lot of those provisions, the state supreme courts have already said, you know, these provisions. We know, we know how they're worded, but we think they actually do permit things like vouchers and tax credits and scholarships so long as their neutral. So um, this opinion doesn't do anything to undermine or to change the

law in those states. So a state like Arizona, as an example, it has a a blame blame amendment type provision, but the state court had already interpreted it to allow even handed funding. But with respect to those states like Montana, Um, you know my neighbor state of Michigan. I think it is another example with respect to those states that have interpreted their own constitutions to require um discrimination against religious schools, than what this latest Supreme Court decision means is that

those state constitutional provisions can't be enforced. The Supreme Court can't tell a state like, hey, take that out of your constitution. That's not how it works. But given the Espinosa decision, the states can't use their state constitutions in order to require or to excuse differential treatment in these kinds of programs. How far does this decision open the door to more public funding of religious education. Well, it opens the door in the sense that it permits the

legislative process to consider this issue. Right, So this decision doesn't require a state to have about your program or a scholarship program, right like that. Um. But you know, for the last several decades, a lot of times, UM, political movements to get more school choice has kind of bumped up against these provisions. Um. These provisions have stood as kind of an obstacle to choice based reform, even

in states that have wanted to enact it. So what this decision says basically is, look going forward, UM, these blame Amendment type provisions. They can't stand in the way of even handed school aboucher programs. No states required to adopt them. A state, if it wants to, can say public money is for government run schools only, or government

run schools and charter schools only. But what this decision does mean is that if the state decides no, we're open to some experiments with programs that allow kids to use scholarships and tax credit the private schools. They can't single out religious schools for exclusion or flip it around, since most private schools are religious in a lot of states. What this decision means is that the option of including private schools in your in your kind of menu of

publicly funded options. That option is now available, but it's still going to be a political decision, right. That doesn't mandate school choice. It just kind of opens up the debate a little bit, and now people have to convince each other what the best and most just and most efficient way they think to fund educational opportunity is. This was another decision where the five to four majority, where the Chief was the deciding vote or the swing vote.

What's your take on that whole thing about the chief being now the most powerful chief justice almost in history history is big, And I think there's a lot to admire about John Roart. I suspect he wouldn't want to say that he was more powerful than say John Marshall or something like that yet, But um, this year has been in this has been a year where he's been in the majority of all the close cases. As for the swing votes thing, I'm not sure that fits in

this case. Roberts has for the entire fifteen years he's been on the court been entirely consistent. I think in law and religion cases he has voted in every case that I can recall in favor of free exercise claims. So this this isn't a case where his voted the majority is some kind of a surprise or goes against other things. He said again, he wrote the decision just

two years ago in Trinity Lutheran. In the past, some justices like Justices Kagan and Brier have joined with the more conservative justices in some of these religion cases, and here the more liberal block of justices all all stayed together. Thanks Rick. That's Richard Garnett, a professor at the University of Notre Dame Law School. And that's it for the sedition of Bloomberg Law. Remember you can always get the

latest legal news on our Bloomberg Law Podcast. You can find them on iTunes, SoundCloud, or Bloomberg dot com Slash podcast Slash Law. I'm June Grosso. Thanks so much for listening, and remember to tune to the Bloomberg Law Show weeknights at ten pm Eastern right here on Bloomberg Radio. How far does this decision open the door to more public funding of religious education. Well, it opened the door in the sense that it permits the legislative process to consider

this issue. Right, So this decision doesn't require a state to have about your program or a scholarship program or anything like that. But for the last several decades, a lot of times political movements to get more school choice have kind of bumped up against these provisions. These provisions have stood as kind of an obstacle to choice based reform even in states that have wanted to enact it.

So what this decision says basically is, look going forward, these blame amendment type provisions can't stand in the way of even handed school ut your programs, no states required to adopt them. A state, if it wants to, can say public money is for government run schools and charter schools only. But if the state decides no, we're open to some experiments with programs that allow kids to use scholarships and tax credits at private schools. They can't single

out religious schools for exclusion. Thanks Rick. That's Richard Garnett, a professor at No. Tre Dame Law School. Coming up next on Bloomberg Law, the chief joins with the liberal justices in giving abortion rights activists a win. I'm juring Grosso and this is Bloomberg