Politically Charged Decisions Mark Term’s End

So Greg, let's start with the decision over whether the Trump administration can add a citizenship question to The justices were split here in more ways than I can explain, but the question is block for now. Tell us what happened. Yeah, you say we have the answers. We have answers, but

they may not be final answers. So Chief Justice John Roberts and the liberal justices said that the explanation that Commerce Secretary Wilbur Ross gave for putting the citizenship question on the census was contrived, and they kicked it back to the Census Bureau in the Commerce Department to come up with a better explanation. What's not clear is whether they're going to be able to do that and have time.

The explanation that Ross gave was that we were trying to help the Justice Department enforce the Voting Rights Act, which protects minorities at the polls. But Robert said the evidence indicated that Ross came into office wanting to add this question, that he solicited the Justice Department to to formally ask for it. And it's not clear exactly how Wilburt Ross will be able to get out from under that, put together an explanation and get it all done in

time to have the census forms printed. This will go back to the federal judge Jesse Ferman in New York who wrote that book practically on why the citizenship question shouldn't be allowed, and he'll have to judge whether or not that is an adequate explanation. If he says it's not, then it would go to the Supreme Court. Almost certainly, assuming the administration goes for it, there will be another court fight. This one may happen on an emergency basis.

You know, there are actually three challenges around the country. I would imagine all those plaintiffs are thinking about their next steps and there will be more court challenges and it will come back up to the Supreme Court. And John Roberts, who who cast the deciding vote in this case, is very likely to be the one who will decide whether that new explanation is good enough. All the while the clock is ticking. We're just gonna have to see what happens over the summer. So John Roberts was the

deciding vote, He was the swing vote here. Does that hearken back to the Obamacare decision so many years ago, a highly political case where he cast the deciding vote by sort of splitting it down the middle. Yes, it does, and this opinion resembles that a little bit. In it. It was quite hard to figure out what exactly the Court had done, just like can Obamacare. It was kind of challenging because there was a little this and little of that. Yes, John Roberts has said publicly he cares

a lot about the courts institutional standing. He is very protective of that. This decision came down on the same day as the partisan jerrymandering decision that I think we're going to talk about in a second um, where the Court sided with conservatives on that Robert sided with conservatives here's an opinion where, you know, Roberts is making the point that we are not, even though it's a pretty conservative court, we are not reflexively going to side with

the Trump administration or political conservatives. So let's go on to the partisan jerrymandering. In five to four votes along ideological lines, the Court decided that voting maps cannot be challenged for being too partisan. Tell us first about the majority opinion. Yeah, so this this decision was as clean as the other one was messy. This was the five Conservatives again with John Roberts writing it, and essentially what he said was courts do not have a role in

this thing. This is a political process. You know. This is the same Chief Justice who a year ago, when the Court heard arguments and a different case, said we don't want to be in the position of in each case deciding the Republicans win or the Democrats win. This opinion says this is a political question, that courts are not competent to decide whether a voting map is two partisans.

Justice Elena Kagan wrote a rather biting dissent, and she started with, for the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. Yeah, it was a very strongly worded descent from Justice Kagan. She read a summary of it from the bench. She actually broke up a little bit at the end of her descent when she said, with respect but great sadness, we descent, which is a really

remarkable thing to hear. You know, this was a hard fraud case. Over the course of two terms, several justices in arguments this year, several of the Conservative justices acknowledged that this is a real big problem, you know, voting maps that are designed primarily to help the party that's in power. And up until now there has been at least the possibility that the courts would step in and

police that. But now that possibility has gone. If Justice Kennedy was on the court still whether the decision might be different because he left the door open to the possibility that some kinds of partisan gerrymandering might be too extreme in a concurring opinion years ago he did, and a lot of people last term thought that Justice Kennedy might finally be ready to say, Okay, here's a test that courts can use to decide whether partisanship has gone

too far that the challengers to these maps put a lot of time and effort into sociological tests, statistical tests that could distinguish the really bad maps that courts, they say courts should strike dout. But Kennedy wasn't satisfied last term, and he didn't really delve into it. The Court ended up resolving that case on very narrow grounds by saying these particular plaintiffs hadn't shown that they had the right

to sue in this case. So that takes the big question over to this term when Kennedy's no longer on the court and Brett Kavanaugh, who was one of those justices who said this is a really big problem for a democracy, but he joined the majority in saying there's nothing that federal courts can do about it. Is it just happenstance that you have two very political decisions on the same day that both sort of cancel each other out one in one the liberals one and the other

the conservatives one. Well, on one hand, it could be these were obviously very big cases, hard fought, and they were argued near the end of the term, so it's not surprising they are among the last ones to come out.

But the fact that they both came out on the same day and and the Chief Justice wrote them both, it's hard not to think that he was very aware of the message that this will send, which is that this is not a reflective court that is always going to side with conservatives, especially on these big political issues. John Roberts saved himself from a day of news that said he wrote the decision that barred any challenges the partisan jerrymanders. Now that is, you know, just one of

two major decisions, and any other one. We have to leave it there, Greg, but we'll be checking back with you tomorrow and the court will discuss new orders. Thanks for listening to the Bloomberg Law podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcasts. I'm June Brosso. This is Bloomberg. Yeah, yeah,