Mistrust at the Supreme Court Amid Historic Backlog

You begin to look over your shoulder. It's like kind of an infidelity on that you can explain it, but you can't undo it. Is that mistrust and internal discord behind the Justice is waiting until the bitter end of the term to issue decisions in more than half of their cases, including blockbuster rulings could make abortion illegal and half the country and mean more handguns on the streets.

Here to help us sort out why and what's coming up is Kimberly Strawbridge Robinson, Bloomberg Law Supreme Court reporter Kimberly. At this point, the justices have thirty three decisions outstanding. That's more than they've issued this whole term. Is this unusual, Well, it is and it isn't. So it's not unusual for the Court to kind of backload. It's worked with opinions. But you know, that makes a lot of sense. In the beginning of the term, the justices are also hearing

oral arguments in cases. There's a lot of prep for those arguments to happen, and then they stopped doing that around April and focused totally on opinions. So we do tend to get a lot of the opinions in June, specifically as the Court tries to hit this kind of informal deadline at the end of June to knock out all of its opinions. But it's unusual in the sense

to have so many. We could see the Suspreme Court was already working pretty slowly before we got that unprecedented leak of an abortion ruling, but since then it's been going even more slowly. So it is unusual to have thirty three cases left for the justices to get out, and it is a pretty heavy list. Maybe we won't be hitting that informal deadline this here. We've been expecting the decision in the New York gun case for some time. Explain why, you know how reporters time out when cases

are argued and when they should be coming down. Well, you know, it takes the justices a long time to really issue any opinion. It's not as if they usually just pure case and then the next day we get this long, ridden, reasoned out opinion. That takes time, But as cases are more divisive, it's going to take even more time, not only because you're working with the majority opinion, but also with any descents that might be coming in and those kind of go back and forth sometime for editing.

So you know, we can kind of gain out the system based on when arguments happened. Did they happen right at the beginning of term in October or you might expect to see those happen before cases that you know,

we don't hear until the middle of April. That makes a lot of sense with regard to this gun case, though it is right now the oldest outstanding case that the Supreme Court still has pending, and why we could see it at the end of June, it is also one that the Justices might have ready, but we haven't seen it in the last couple of weeks and some people are speculating that it has to do with the recent news out of Texas and that shooting there, that

the justices seem prime and oral argument to expand gun rights, and that now just really isn't the time for the Supreme Court to issue that ruling. I confess that I've been one of those speculating. So that case and of course the abortion case are the blockbuster decisions that people have been focusing on. But there are other cases which should make headlines. Let's just go through some of them quickly.

There's a pending environmental dispute there is. This is a big dispute out of West Virginia, but it really goes to the heart of whether it's e p A can tackle climate change and how robustly they can tackle climate change, which of itself is a really important issue for the country, but it's also really important in what it means for

administrative law. Now, people might have fallen asleep while an administrative law, but the administrative law touches on almost every aspect of American life, and you know, when the Court makes even small changes to administrative law, I can really have big effects. And this is one of those cases where what the Supreme Court says, could make the ruling

mean even more beyond environmental law, beyond climate change. There's the immigration case over Trump's Remain in Mexico policy, which would force immigrants to stay in Mexico while their cases are being reviewed. And are there two religious rights cases? There are two religious rights cases still pending. The Court recently issued religious rights case fighting with a group who

wanted to fly their flag over Boston. But both of these other cases are a little bit more robust, kind of to more of the heart of some of our religious freedom and what states can do to kind of

stay out of religion. You know, those cases are really interesting, and that if we looked at the Robert's Court when it first got started in two thousand and five, when Chief Justice Robert took over, the Court's really been making these very small moves and the religious space to where we get to where we are now and the questions we're considering are kind of astonishing how far we come

just taking these little baby steps. And so I expect the Court to continue kind of taking those baby steps and of walking towards protecting religious freedom and protecting the right to practice. But again, those are ones that we're going to see in the deluge of cases that I'm expecting in the next couple of weeks. Since the majority opinions are sort of spread out evenly among the justices, Supreme Court watchers watch which justice has written opinions and

how many to determine who's left. So what have you found out? Right? This is one of those things that we're forced to do because the Court is, you know, such a secretive institutions, the League notwithstanding, but yeah, so typically we see justices trying to even out the opinions, bread them across each of the argument sittings, and so we can kind of get an idea of who we're expecting the most opinions from. Right now to Justice Roberts

and Kagan have written the most opinions. They've written the four of the six or seven that we expect to see. But some of the other justices have a lot more work to do. Thomas Alito, Kavanaugh, you know, they've only written too so they're not even halfway done with their work. Of course, we know Justice Alito from that league is probably writing scheme majority opinion in that big abortion case. But who's writing what else? We'll get a better clue as more opinions kind of trickle in and we can

play this process of elimination. The fact that three of the conservative justices have more majority opinions to come may give some liberals pause. Now, when you hear Supreme Court justice talk, they usually point out how many of their opinions are unanimous to try to show it's not a political body. I fun that those are usually in cases

that people don't care that much about attention to. What are the numbers so far this term, Well, you're right, you know, unanimous cases typically make up about half of the cases. And it's the stat that all of justices on the right and the left point you just say, we agree on over half of these really tough legal questions that have divided lower court judges. But this year they're actually going to struggle to get to that fifty percent.

And you know, if you think about the timing considerations that we've talked about, divided opinions take a lot longer to than unanimous opinions. So we tend to have a frontload of these unanimous rulings. But so far and really

haven't been that many. There have been about as many unanimous opinions as we've seen six three opinions, which of course is the ideological lineup of this conservative majority court now, so that doesn't bode well for these really high profile and very divisive cases that we still have yet to get out, and they don't really have those base of

unanimous rulings to build upon. I will say though, that one problem with kind of keeping stats with regard to unanimous opinions or five four six three rulings is that they often don't tell you a lot about the underlying reasoning. So one case that I consider to be an eight to one ruling is that Texas abortion case. But you know, I think if you talk to a lot of the people, they would tend to think of it as a five four ruling just because of the political implications of it. So,

you know, we should look to this data. It does tell us something, but it certainly can't tell everything about what's going on at the court. It seems like an age ago that Chief Justice Roberts was the justice in the center of the court, the swing vote. Who's at the center now? Well, actually, right now, both Roberts and Justice Brett Kavanaugh are the only justices to be in

the majority in all one cases. Again though, and you know, people who are forfalling that Texas abortion case may be scratching their heads because I think many people would see Chief Justice Roberts concurrence in that opinion as really a dissent. And so you know, again that highlights the information that

we can glean from this. But I think that these kind of numbers that we're looking at now are going to radically change by the end of the term and just this couple of months span, because we are getting so many divisive cases, and I suspect that the numbers will probably prove you right June to show that Chief Justice Roberts is no longer in the middle of the court and that the Court has really tilted towards his more conservative colleagues. There isn't really a swing vote anymore

like Justice Kennedy was, is there. I think it depends on the issue. With Justice Kennedy, you know, you really didn't know all the time which side of the issue in any particular case he was going to be on. With this court, I think that there are a few really precise issues that you can see a swing justice. And so it may surprise listeners that Justice course such is often a vote with his more liberal colleagues on things like tribal rights or even right for you know,

Puerto Ricans and other U. S territories. But we're not going to see Justice course such a the swing vote in these big divisive cases like guns and abortions. I think you're right, June, that that just doesn't really exist on the current Supreme Court anymore. Kimberly, Justice Stephen Briar's retiring after nearly thirty years on the bench. Did you see anything different from him this term? And are you expecting any last minute fireworks from him? That is a

really good question, June. I don't think we saw anything really different from Justice brier this term. I think, you know, just listening to him talk before he had announced his retirement, it seemed like he had really hoped to kind of use his long time and relationship on the bench to be able to sway the Court away from some of

these bigger, more divisive rulings. But you know, if the draft opinion tells us anything, it doesn't seem like he was successful, at least with regard to abortion, which is kind of the marquee issue this term. So as far as the fireworks we can get from him, I think it will be more along the lines of kind of a sharp descent or pointing out long term projects, kind of making a last effort for it. You know, we saw him recently do this with the death penalty, calling

on the justices to reconsider the constitutionality of that. But there's just not some votes on the Court, so there's very limited amounts that Justice Briar can do. As he's kind of making his farewell to her, It's going to be a very busy month, that's for sure. Before I let you go, I want to talk a little about the leak. What's the latest on the investigation by the

Supreme Court Marshall's Office. Well, you know, we have heard some more leaking from the leak that the Marshall's Office is taking particular steps to get personal phone records from the clerks, and we have Bloomberg haven't been able to independently verify that, but that's definitely something that signals kind of a unique and start change from the atmosphere at

the Court before. You know, typically this is a very friendly institution and to see the Marshall's Office requesting the personal information of their clerk is something pretty jarring for someone like me, it's been watching the court for ten years. Um. You know, I do question, though, I've seen a lot of criticism that the Marshal's Office is an equipped to handle this kind of investigation to really fair at out

the person who leaked and to punish them. But you know, I've been wondering if that's really the goal of the justices within the courthouse. Of course they want to find out who did this and why, um, but punishing, you know, their their law clerks, these young reason law school graduates. I'm not sure is their top priority. But we'll just have to wait and see where this investigation leads and see if they the court actually tells us how how it's going or how it's concluded. I still don't even

know if that's going to happen. Do you know how many people have access to these draft rulings? Is it more than the justices and their clerks. It is a little bit more than the justices and their clerks, you know. I think the best guests that I that I have now is somewhere around eight people, because they're just some people around the buildings who have to you know, have access to emails, have access to printing, um, you know, and there there of course will be of some people

um doing some administrative things with the opinion. So it is a bit broader than the clerks and the justices. But if the news that we're hearing out of the investigation is true, it really does seem like the Marshall's office is focused on the clerks, so maybe they know

something we don't. It seems odd because most people, most legal experts say, well, you know, it wouldn't be the clerks, because if it were revealed that a clerk was the leak, that would ruin the clerk's career, Well, that certainly is a good argument for why it wouldn't be a clerk.

And we don't have leaks very often. We do have, you know, one situation that we can look back to, after the plan Parenthood versus casey abortion rulling, one of the clerks at that time, after the opinion had been announced, then wrote sort of a telltale book and was sort of shunned from at least the litigation aspect of um, you know, the legal field. But beyond that, this is really unprecedented situation that we're in and so you know, really no telling where this is going to lead us.

And just finally a new House Republican bill is appropriately called the Leaker Accountability Act of two. Just tell us what that it's. You know, it's obviously designed around this league, but tell us what that would do. Right. It certainly is promptly by this league, but it's not retroactive. It

would not apply to this leaker. What it does is, you know, it says that if any person you know, clerk or personnel at the staff leaks what the Chief Justice considers to be confidential information, then there it makes it a criminal violation subject up to five years in jail. I think, you know, the most interesting thing about that laws really highlights that there is no criminal provision and here that I think most people can see at least

not obviously that the leaker would have violated. And so it's really looking forward to if these leaks are going to happen, how are we going to try to dissuade people from doing it? What you know possible federal resources can we bring to bear. But you know, it was

just to introduce recently hasn't gotten a hearing. We don't know where people stand and Congress's efforts to legislate for the Supreme Court have not been very successful lately, so I don't have high hopes for the still But again, I think the important thing is that highlights kind of the limitations UM with dealing with this current laker. Thanks so much, Kimberly. That's Bloomberg Law. Supreme Court reporter Kimberly Strawbridge Robinson. The mass shooting in Tulsa, Oklahoma, on Wednesday

left four people dead. That follows a massacre of nineteen elementary school students and two teachers at a school in Uvaldi, Texas, and a mass shooting at a grocery store in Buffalo, New York that left ten people dead. President Biden has asked Congress to pass gun control legislation as a bipartisan group of lawmakers negotiates a possible agreement. But we been

here before. Joining me a second amendment expert Adam Winkler, a professor at u c l A Law School, The last time Congress came close to passing substantial gun reform was in the wake of the Sandy Hook massacre. Se in, is there a feeling that this might be it, that maybe Congress will do it this time. There does seem to be some momentum for reform, perhaps more than we've seen in some of the other mass shooting wake, but

I think it really remains to be seen. We see that the Democrats are very eager to get gun reform passed, and the House seems certain to pass legislation. Whether there's enough Republican support to overcome the hurdles of the Senate and the filibuster, I think just remains to be seen. In some ways, it's hard to imagine there'll be enough Republican support, but I don't want to let pessimism get

in the way of possibility. Members of the House Judiciary Committee held a special hearing today on legislation that would raise the age limit for pro just saying semi automatic rifles from eighteen to twenty one, and they get illegal to manufacturer possess large capacity magazines. It said that it will never pass the Senate because there's nearly unanimous Republican opposition. If they're not going to pass that, I don't know what they're going to pass. Yeah, it's not really clear.

One possibility is there could be a federal red flag law. Red flag law also known as an Extreme Risk Protection Order law that provides families and law enforcement the ability to go to court if someone is going through some kind of crisis and temporarily take away their guns. There is at least some Republican support in the Senate for a bill that would provide funding for states to adopt red flag laws. Lindsey Graham is one of the co sponsors.

That might be the kind of thing that would appeal to even strong pro gun advocates in line of the fact that it targets dangerous individuals and doesn't target firearms that would be owned by ordinary law abiding people. What about an assault weapons ban which was passed before and then expired. Is that a possibility. I think there's very little chance that we could see a military style assault weapons ban adopted by Congress, especially getting through the Senate.

These guns are the most favorite guns of many many gun enthusiasts. They are viewed by gun enthusiasts as weapons that are improperly targeted by gun reform advocates. Although these firearms have been used in some high profile mass shootings, they certainly aren't necessary to commit a mass shooting, and many mass shootings are committed with handguns. And the overall number of people who die as a result of rifle wounds is actually relatively small compared to handguns, are or

other types of firearms. So I think that a ban on military style assault rifles would be tough to through Congress, and even if it did get through Congress, might be even tougher to get through the United States Supreme Court. I don't know much about guns, as I've told you before, assault weapons. Are those the ones that were used in Uvaldi? Yes, the shooter and Nuvaldi went out and purchased a military

style assault rifle. I think two of them in fact, Yeah, so, and some of the children were unrecognizable because of the damage that does. And it's also been said that perhaps that's one of the reasons why the police didn't enter and waited in the hallway for forty minutes or fifty minutes, whatever it was. Yeah, that is possible. And certainly these

firearms are powerful firearms. And if you shoot someone at close range with a rifle, really any kind of rifle, whether it's a military style rifle or a rifle that would not be banned by the assault weapons ban, it will be pretty horrific. But I do think that it's unlikely that metalities would diminish if the shooters only had access to handgun. Now, high capacity magazines present an interesting issue because high capacity magazines, that is the same magazines

that can hold more than ten rounds of ammunition. That is a feature of a firearm that very much is associated with lethality. If you can fire off more than ten rounds of ammunition in rapid succession, you can do a lot of damage, much more damage then if you have a firearm that can only hold many fewer rounds of ammunition. I think it would be very difficult to get a ban on high capacity magazines through Congress, but it might also be a problem getting such a band

through the Supreme Court. The Supreme Court it seems prepared to expand Second Amendment right this term, and I think one of the kinds of laws that the Court is going to call in the question in coming years is bans on high capacity magazines. We have such laws in California and a full other states. They've already been challenged, and those challenges are working their way up to the Supreme Court as we speak. Adam, what do you think the outer limit is of what the Supreme Court will

rule about Second Amendment rights. Well, I think it really depends on what the Court says in this coming case. Most people suspect that the Supreme Court is going to strike down New York's can feel carry law in the Bruin case that's going to be decided any day now. But many Supreme Court watchers are going to be looking to see what the Court says about other types of gun control laws and other kinds of challenges under the

Second Amendment. And it does seem like the Court is likely to insist that firearms that are in common use, that are commonplace firearms, cannot be banned, that they are protected by the Second Amendment. High capacity magazines are found in upwards of forty to fifty million guns in America, maybe more. We don't have precise data, but they would seem to qualify as being in common use. What about the possibility of expanding background checks? There is a possibility

that we can expand the background checks. There is some discussion currently in the Senate about expanding the current background check system. Our current law only requires background checks on sales by federally licensed gun dealers, but you don't have to be a federally licensed gun dealer to sell a gun, and if you're not a federally licensed dealer, you don't

have to conduct a background check under federal law. And so closing that loophole and requiring every gun sale to go through a background check would be an important step forward in gun safety reform. Whether there's enough political will to support it or not, we'll have to see. After Newtown there was a push for universal background checks, but Republicans came out against it, claiming that it would lead inevitably to a national gun registry that in turn would

be eventually used to confiscate people's weapons. Is there anything more the president can do as far as executive orders? You know, there are some things that President Joe Biden can do with regards to gun violence prevention, but not a lot, and not a lot. That's very significant. Part of the problem here is that the president's power only is to offer new interpretations of existing laws that have

been passed by Congress. He can't, for instance, beside unilaterally that he's going to ban military style assault rifles because Congress hasn't provided any basis for the president to make such a decision. The Biden administration has articulated a wish list of gun reforms, but almost all of them require Congress to pass legislation. But there are things that the president can do through executive action. He can tighten import

restrictions on military style assault rifles. He can expand background checks at the margins by redefining who is required to have a license to sell gun. Congress has said you have to get a federal license if you're regularly in the business of selling guns, and the current rules require someone who repetitively buys and sells guns with the principal

motive of making a profit to obtain a license. The Biden administration could slightly change that definition of who counts as being in the business of selling guns and thus require more background checks. The administration has already pushed to crack down on ghost guns, homemade weapons that typically lack serial numbers, by requiring purchasers to undergo background check. So there are some things that Biden administration can do, but

most of them are really at the margins. What about states, Because there's been a flurry of gun legislation, and I was surprised to read that in two thousand three, Vermont was the only state that allowed residents to carry handguns in public without a permit. Since then, legislatures in half the states have removed permitting requirements, mostly in evolving concealed firearms. So is the battleground in the states. Well, the battleground over gun reform has been in the states for the

last ten years or so. Ever, since the federal government failed to act after New Town gun safety reform, advocates have turned their attention to the states to try to get legislation to close up some of the loopholes in federal law at the state level. So states like California and New York, for instance, have passed legislation over the last ten years, doing things like making universal background checks the norm in those states, restricting high capacity magazines, or

restricting military style rifles. We have seen states take up the mantle of gun reform, and I think we're likely to see that continue. I know that California lawmakers are pondering a set of new pieces of gun legislation, new gun reforms that would make it easier, for instance, to sue gunmakers when their firearms are used to commit now murder. And we will see some states, I think, seek to strengthen their gun laws in the wake of this mass shooting.

The difficult thing at the state level is that you have a large number of states that are very strongly pro gun and if anything, they're likely to loosen their laws, as we've seen happen in state after state. I want to go back for a moment to the idea of raising the age to buy a gun from eighteen to twenty one. Republican Congressman Jim Jordan's has said that that's unconstitutional. It's not clear that it would be unconstitutional to raise the gun age. Of course, the Supreme Court hasn't said

anything about that. There was recently a case out of the Ninth Circuit that did say that California's effort to raise the gun age for purchasing various kinds of semi automatic center fire rifles was unconstitutional, and the Ninth Circuit judge argued that this was unconstitutional because the founders relied on eighteen year olds to be members of the militia and so trusted them with firearms. And nonetheless think there are good reasons to raise the gun age, and I've

argued for doing so in the past. Part of the problem with arming people who are between the ages of eighteen and twenty is that brain development is not that advance when it comes to issues like understanding long term consequences of behavior, resisting impulsive behavior, and that part of the brain, scientists of popos isn't fully developed until about

the age of twenty five. The mere fact that we allow young people to have firearms in the military, which is a very strict command and control structure in which eighteen to twenty year olds have virtually no independent discretion over whether to use firearms or not, is not a particularly relevant example or analogy for how we should think

about public policy more generally. Finally, um, do you think that this would be an easier road to, how you know, getting any kind of gun control legislation if not for the n r A. Certainly, the n r A is an important voice in styming gun reform, but even without the n r A, we would likely still have a lot of single issue pro gun voters that would be sure to vote against any elected official who votes in

favor of gun safety reform. We have to understand that the problem with getting gun safety reform adopted is not merely the n r A being a super powerful and influential organization, but also that there's a lot of voters out there who care about this issue, and elected officials, especially among Republicans, have really come to be scared of gun owners and the wrath they might take on any public official who supports gun safety reform. Thanks as always, Adam.

That's Professor Adam Winkler of u c. L A Law School, And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news honor Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast, Slash Law, and remember to tune into The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg