Newest Justice Shows Independent Streak

in the state, will need to reschedule his execution. This decision came less than a week after Barrett took a somewhat nuance stance on California's COVID nineteen restrictions on religious services, joining me as Jordan Reuben Bloomberg Law editor. So, first of all, why did Alabama want to execute an inmate without his pastor in the chamber? Prison officials claimed it

was for security reasons. We've seen that in a number of states across the country, giving rise to be claims from inmates saying that those concerns shouldn't override what they're saying. Are there religious rights to have their spiritual advisors with them? And what happened at the court below. So the corporlow the US Court of Appeals for the eleventh Circuit sided with the inmates Smith, saying that the state could not

execute him without having his pastors in the chamber. And that's what led the state to an appeal to the Supreme Court to try and get that injunction lifted so they could execute Smith without his pastors in the chamber. So now Justice Barrett voted with the three liberal justices who wrote the opinion in what did it say? This was an opinion by Justice Kagan, and as he mentioned, it was joined by the other two Democratic appointees as

well as Justice Barrett. And it said essentially that the state's interest in security, although compelling, as Kagan acknowledged, doesn't override Smith's right on religious grounds to have his pastor with him. The state didn't do enough to prove why it's security interests should overlie that religious interest. And now who was the fifth vote to stop the execution. That's

a mystery, June. And it brings up another topic that you and I have discussed, the Supreme Courts shadow docket, where the justices do not always explain how they vote, and we saw really an extreme version of that in this instance. Because we know that those four justices sided with Smith, we know that Justices Thomas, Roberts and Kavanaugh noted their dissent, and that leaves Justices Alito and Gorsage.

And so what we know is that in order to form a majority, the four justices Barrett and the three Democratic appointees would have needed at least Aldo or Gorsage to be with them. So we know that it was at least one of them. It was possibly both, but we just don't know because those two justices did not indicate one way or the other. And those two justices have been strong supporters of the death penalty. Could it be that they didn't want anyone to know their position here?

It's possible that they have been two of the strongest justices to rule against in these and for the government and death penalty cases. There there are also two justices who voted strongly in favor of religious rights against other rights that have come into play, And so we just don't know. And so I don't necessarily assume that it was not both of them that voted with the majority. But because they didn't tell us, that just leaves really

unnecessary speculation. There's no reason why they can't just tell us how they voted, Like the other justices did so tell us about the dissenters. Sure, so we had Justice Thomas who merely noted the fact that he would have granted the state's applications. We didn't say more than that, while Justice is Kavanaugh and Roberts, they would have listed

the state's injunction. And it's interesting because all of this in some ways traces back to an idea that Justice Kavanaugh had when this religious advisor issue was previously before the Court. It was actually Justice Kavanaugh who said the states wanted to avoid any issues of favoring one religion over another, they could just simply bar ministers of all faiths from the chamber. And so Texas and Alabama in this case took him up on that offer. That led

to this wave of litigation. And so that's a long way of saying that while Kavanaugh and Roberts would have gone along with what the state wanted to do in this instance, the takeaway they said is that states should really find a way to let these executions go forward with spiritual advisors, just so it's not giving rise to this eleventh our litigation coming from either side. And so

Kavanaugh Roberts, even though they disagreed. I think Kavanaugh and Roberts understand the interest here, and so I think the point is they just don't want to see any more of this litigation, which they deem to be unnecessary. So now it appears that there are at least five votes, so that people on death row who want a spiritual advisor have to get a spiritual advisor. I think that's right,

and possibly more than five votes. I should say that there's potentially nuanced depending on what grounds of religious freedom inmates are reason they're playing. There are different parts of the First Amendment. There's a statute that was relevant in this case, which different justices could have different opinions on.

But broadly speaking, what we've seen in the last few years from a court that really has declined to side with death row inmates on pretty much any ground, this ground of religious advisor is really the only one that's been winning as far as it goes for inmates, and so I think that's safe to say that it's unlikely that an inmate is going to be executed without their religious advisor, barring some type of circumstances that we haven't

seen yet over the last few years. Jordan's so There have been several controversial cases involving death row inmates having a religious advisor with them in the chamber when they're executed. One involved a Muslim inmate, another a Buddhist inmate. Tell us about them sure, And so in Alabama, this was another case from Alabama that really set all these this off. There was a death row inmate. This was back in a man named Dominique Gray, and he was executed without

his mom in the chamber. And this was after the Supreme Court said that he was not entitled to that, and that really caused an outrage and a bipartisan outrage at that. And I think in some ways the court might have thought that had had some egg on its face, and then it reversed course in a sense. And so that's still lends itself to criticism from some circles that it only ruled against that man because he was Muslim, when the court had gone on to a world more

favorably in favor of other religions. And so regardless of that, what we've seen since that Alabama case and the outrage that it sparked, is that the Court has changed course and has decided on different grounds in different cases with different justices indicating that they're voting one way or the other, but that on the whole, the court is saying, we don't want these executing inmates without religious advisors with them.

So now Justice Barrett is getting some attention because of this decision, because she joined with the liberals, and it's the second time in less than a week that she has not joined with her most conservative colleagues. That's right, and so I think in some ways it's tough to tell a lot from just a couple of data points.

But one thing that it does show is that for people heading into Justice Barrett's confirmation who were worried this is going to be a six three lockstep court on every issue, what we learned is that at least that's not the case now. In these recent cases, these have been decisions that aren't necessarily going to change the course of a law. Take this death row case that we're talking about. All that's happening here is that this man

can have his pastor with him when he's executed. There's no question of whether he's still going to be executed. In a recent case on COVID nineteen where Barrett didn't join with all of the other Republican appointees. It was to take sort of a more not moderate approach in terms of how a church could reopen, but to be clear that it could reopen and allow people in. And so it's certainly no way of saying that Justice Barrett

is emerging as some type of liberal. Really all saying is that the Court is not going to be a six three monolith in every case. And it's interesting that both these cases that we're talking about involved religious rights, for sure, and so one way to look at it is that this definitalty case isn't really a defenseity case. It's a religion case. And so it's really a consistency

on Justice Barrett's part. Arguably if you look at her decisions, that she's consistently citing in favor of religion, whereas perhaps other justices have been inconsistent on those grounds. And so that is another takeaway that we have from these recent decisions from Justice Barrett, and maybe other justices like Alito and Gorseitch are doing the same, but they did not find it fit to tell us how they voted in

this case. We're less speculating as to them. In a normal case, you get to see how all the justices vote. But in this case, you didn't explain again why they're allowed to sort of conceal their opinions. Well as with pretty much everything else about the Supreme Court, they're allowed to do it because they're in charge and there's no interglactic Supreme Court that people can appeal to. This is simply how the Justices have decided is a reasonable way

to operate when these emergency applications come up. They have to rule one way or the other. They have to make an order one way or the other. But they've seen it fit to say that it's not vowed to the public to say how they voted in a given case. And these are cases that can be just as important, if not sometimes more important, than cases that are argued

injustice is right, lengthy decisions on the merits. And so, just to be clear, a reason that's been brought up to why they don't do that, it's because this is happening in a very rush nature, and it's happening at the eleventh hour. Ands some have said that that's the reason why they don't do it. Of course, there's a reason in their head when they make a decision one

way or the other. And so I don't think it would necessarily have to be a lengthy decision, but it would be helpful if there was some even short decision or at least say which way you voted. That seems like it would be a reasonable course to me. I like the intergalactic Supreme Court, and they have to borrow that. So there's a very controversial case involving religious rights that the Supreme Court heard arguments on but hasn't made a decision in that case might be illuminating, and it involves

a clash between religious rights and gay rights. Tell us a little bit about it. Sure that case is bolted against City of Philadelphia. As you mentioned, it is in some ways a clash between religious rights and gay rights. There's Catholic Social Services which is seeking to not have to work with same sex couples on the grounds that

it would violate its religious rights. And so this is another example of the case similar in some ways going back to the Court's Masterpiece cake Shop case that some of us may remember about the baker who did not want to bake a cake for a same sex couple. That is being argued on religious grounds, people saying they shouldn't have to do things because of their religion. But an effect of the decision if it does go in the religious grounds favors that it could have potential adverse

effects for lgbt Q rights. Thanks for being on the Bloomberg Law Show. Jordan's that's Jordan Reuben, Bloomberg Law Editor. Progressives want bold steps like expanding the Supreme Court, but a Bible Horris and commission appointed by President Joe Biden is more likely to recommend changes like allowing cameras in the courts, establishing term limits for Supreme Court justices, or

slowly adding lower Court judges. Joining me as Madison Alder Bloomberg Law reporter, so medisine tell us about this commission. So this by person commission was something that Biden suggested on the campaign trail amid really intense pressure from progressive groups to expand size the Supreme Court. And those calls came, of course, after the passing of Justice was Lader Ginsberg and Trump's nomination of Amy Coney Garrett to the High Court.

You know, progressive said that Trump had had too much influence over the Supreme Court, uh and they wanted to have some kind of a response in kind, so packing the court has kind of been progressive rallying cry to, you know, have some kind of court reform. Biden suggested this on the campaign for kind of what some people saw as the dodge of answering the question directly of would he expand the size of the Supreme Court. He

said he would study court reforms. He even mentioned that there, you know, this isn't necessarily about court packing, it's it could go beyond that. So he kind of gave an indication there that it wouldn't be about court packing. But now that that commission is is starting to take shape and ideas are swirling as far as what the commission could actually address tell us who has already been appointed

to the commission. So there's been a couple of people that the White House is confirmed UM that have been added to the commission. So Bob Bowler, who is a buiding campaign lawyer who served as White House counsel for President Barack Obama, and Christina Rodriguez to the Yale Law professor and was senior Justice Department official under Obama UM. And then two others have been reported by Politico that is the American Constitution Society's former President Caroline Patterson and

a Bush Justice part beneficial Jack Oldsmith. So those are some of the names that are floating out there right now. It's not the end of the line for how many people would be appointed this commission. Probably see more soon, but it is kind of what started this conversation again around the commission now that we have some of its membership.

So these are sort of moderate voices. Are there any more intense voices, let's say from Demand Justice or one of the progressive court organizations, So they haven't been added to the commission yet, but those groups are are certainly looking at this list. And you know, smographics see the edition of someone like Jack Goldsmith, who who you know was part of the Bush administration. Um, you know, as really not great for their cause for adding seat to

deciffient court. Um. You know. I I spoke to a professor who told me that this really will be more of a moderate commission be seen that if they come up with well, we'll kind of have to be moderate.

And uh, you know, many of the professors that I spoke to for for my story that look at this area said that it really won't be about court packing, and they're going to have to look at different issues where they might be able to get you know, someone like a former American Constitution Society president and someone like Jack Gold's best on board. Even from the start, it seems like this is not going to be something that will satisfy the progressive that are trying to push Biden right.

You know, I suppoke to Noah Sealman, who is a professor at Harvard Law School, and he said it was really designed that way. Um, if you're going to make a bipartisan commission, he said that, you know, by definition, it really can't recommend something that fits the progressive agenda. But that doesn't mean there aren't other issues that that can mentioned could look at. They do have bipartisan support.

One of those issues is lower court expansion, which is something that has been talked about but really Congress is not addressed for uh, you know, the last several years, last time of Pelot courts. Uh, we're you know expanded and seeper added to the Pelt courts within nineteen nine, and the Judicial Conference in twenty nineteen requested sixty five neutral court judges. Um and in several additions to the Ninth Circuit as well. Um, they're they're expected to updade

those recommendations soon. UM. It's something that you know, there have been by Veterican bills introducing congressivis but just really hasn't gained traction. So that is something that the Commission could potentially look at that could have some bipartisan interests, though it should that it wouldn't expand the lower courts immediately. UM. Typically these bills will uh add seats throughout different presidential administration.

So UM, I think we can expect a bill in this Congress especially to do the same, to to really uh add the seats over each four year cycle for you know, the next several years. I was going to say that will Republicans oppose it if all of a sudden Joe Biden gets a chance to appoint so many appellate judges on the Ninth Circuit for example, and trial judges.

But so you're saying it would be sort of spaced in, right, This would be something that would likely be faced in Biden might get a few judges in a proposal like that.

But UM, bills that have added judges to the lower courts in the past have done that kind of uh format where they will add judge ships, uh for different presidential administrations, and even you know former some of Judiciary Committee Cheirman Lindsay Graham during the last Congress suggested adding judge ships to the lower court before the elections, you know, so it wouldn't be political obviously that that ship is sailed, and Congress will need to consider maybe adding more judge

ships in four years. UM, maybe adding a few in the meantime, But that is something that the Commission could definitely look at that It is an issue to have gotten bipartisan and jos in the past. Might they consider term limits for Supreme Court justices if not packing the court? Some term limits are another issue that has had bipartisan interests, including from some pretty prominent folks on on on both

sides of this issue. So UM. Stephen Calbrusi, who is one of the founders of the Federal Society, has written about this over the years and into justed eighteen year term limits for Supreme Court justices to kind of get away from the political nature of of the court and also having to worry about the health issues of the justices and whether or not they're going to step down

or or or pass away. UM and that's thing that that people on the left have also looked at, including m one of the potential members of this committee, Caroline Frederickson, who seemed to support this and in August of last year, UM, and she was on a panel for the Center for American Progress and talking about term limits and said that she was inclined to agree with with cal Greasy and UM, there are benefits to the term limits. So it's definitely

something that that the Commission could take a look at. UM, though it remains to be seen if if Biden would be on board. As you know, he has kind of UM it seems to seem to oppose the idea of turn limits for for Supreme Court justices, so UM, they have to convince him to get on board with that

idea as well. Now, cameras in the courts. Almost every time that I can recall Supreme Court justice confirmation hearings, there ask questions about cameras at the Supreme Court, and they seem open to it until they get on the bench. What about cameras in the courts outside of the Supreme Court. The last things the Commission could do would be to look at some of these issues like cameras in the court that uh, you know, are kind of around the margins.

They're not major, major court reforms, but there are issues that have had by partisan interest in Congress and and just you know, really haven't gotten any traction. They haven't gone anywhere. UM. One of those obviously cameras in the courts. UM. Senators Patrick Lahey and Chuck Rasslie, who are both former chairman of the Senate Judiciary Committee, have supported this issue over the years, adding cameras in the courts, adding access UM so the public can can engage in in UM

some of these really important oral arguments. And UM. Then there are other issues like, uh, you know, ethics reforms for for the Supreme Court, uh and you know, potentially updating things like the Code of Conduct to to make sure that that justice is have the same kind of ethics requirements as as the other two pranchitions of government. And those the things that UM continue to get by partners in support. So those are some of the other

things around the margins. I think that the that the Commission could look at, UM if it if it is by partisans. We've discussed so many times how Trump transformed the judiciary making it much more conservative what does Biden intend to do? What's his intention as far as judicial appointments. So Biden has really grown up with judicial appointments as a lawmaker. I mean, he was a chairman of the

Senate Juiciary Committee and a member for many years. So a lot of his work and a lot of what he did in Congress involved the confirmation of Supreme Court justices and liver Court judges. Is he he's very familiar with this issue in a way that a lot of previous presidents aren't, and that also has has drawn a lot of attention to what he might do on this issue. He has so far indicated kind of an aggressive is

push for adding judges and nominating judges. His White House Chief Council of Data remis and a letter to Democratic senators during the transition asking them to send in their recommendations for federal judge ships. Within things was just over a month of a federal judge ship becoming vacant, or if they already had vacancy, if they wanted them the day before in noguration, So they're they're kind of signaling

that they're going to be looking at this issue. We haven't seen any nominations from Biden yet, but it seems to be pretty standard to focus on things like cabinet appointments first and then to move on to judges. It's definitely something that that I'm watching, and I know many others are watching to see exactly how aggressive this administration is on on judicial nomination. Thanks Madison. That's Bloomberg Law reporter Madison Alder, And that's it for this edition of

the Bloomberg Law Show. Remember you can always get to late its legal news on our Bloomberg Lamp podcast. I'm June Grosso, and you're listening to Bloomberg