SCOTUS: The Revolution is on Hold and RBG’s Return

last Wednesday that left the Conservatives in dissent. The Chief has been open about his desire to protect the federal judiciaries institutional reputation from charges of partisanship. During an appearance at Belmont University in Nashville last month, Robert said the public's perception of the Court is becoming skewed after seeing confirmation battles that end up in party line votes. People

need to know that we're not doing politics. They need to know that we're doing something different, um that we're applying the law. They need to know that even if they they I think that's not the case they needed. People should be able to read our opinions and we explain what we do, and if they don't think that's a fair explanation. They should be able to make that judgment that this was not you didn't sort of stick with your job. You made a political decision. Because I've

looked at your opinion and that doesn't hold together. Joining us is Bloomberg. New Supreme Court reporter Greg Store tell us about those opinions. Greg. The more important of the two was one that involved a death row inmate who says he can't remember the crimes he committed, and the court's opinion by Justice Kagan take that case back to a lower court, saying they need to look more closely at whether this inmate could at least understand why he

was going to be executed. It was a fairly narrow decision, but very striking that the Chief Justice abandoned the conservative wing of the court, all of whom thought this execution should be allowed to go forward, and the Chief joined the liberal block in that one. Is this a departure from his normal pattern with this issue or is it

just a unique issue. So they are definitely seeing a pattern developed in the last year and a half or so, and certainly this term where the Chief Justice is increasingly joining with the liberal wing. Now most of these are either incremental steps or procedural steps. For example, when he joined with them to block some abortion restrictions in Louisiana.

It remains to be seen whether that translates into a ruling on the merits, but we're certainly seeing clear evidence that the Chief Justice is at least slowing down the ship to the right for the Court now that the Justice Kavanaugh is there. A lot of legal scholars are saying, don't look for Roberts to be the next Anthony Kennedy, But is there a definite pattern swing possibility? There's a

definite pattern. The difference is that John Roberts has been on the Supreme Court for more than thirteen years now, and we've had, you know, that much time to realize he's a pretty conservative guy. His instincts are to side with the conservatives to limit constitutional rights and a lot of contexts, and those instincts aren't going to go away. What's happening here is not so much that he is potentially willing to side with the liberals on those huge

issues like say, same sex marriage. It's more that he wants the Court to move slowly and not lurch dramatically to the right. Now that the Court has a more conservative majority. So is he just protecting the Supreme Court as an institution from allegations that it's partisan. That is certainly one key factor. He has spoken on a number of occasions about how he does not want the Court

to be seen as partisan. He issued that rather striking statement late last year saying we're not Obama judge or Trump judges, were just judges who try to do our our best to interpret and apply the law. As Chief Justice, he sees part of his role as protecting the institutional standing of the Court, and in his mind, one way to do that is to keep it from looking like

it is shifting just because it has new members. Do you think back years he had these surprises, for example the Obamacare decision, where he sought it with the liberals that Obamacare could go forward. So he has surprised us before and then gone back to his normal positions. Yes, the Obamacare ruling, of course, is is a huge one, and it's one that conservatives point to to say we don't fully trust this guy. But one can also explain that decision as John Roberts thinking this is how I

protect the institutional standing of this court. It would have been very striking. If five conservative justices, five Republican appointed justices had struck down Democratic pre as it then signature legislative accomplishment, that would have been a major step, and it would have, in many people's eyes, made the Court look like it was partisan. So that instinct is probably a big part of the reason why the Chief Justice

voted as he did. It's important, though, even in that ruling, a lot of the language he used talked about how the Constitution does put important limits on the power of Congress and the power of the president. Those conservative instincts are still there. With John Roberts. The title of your story is hold the Revolution, And I wonder is he getting blowback from the conservatives who, with the appointment of

Gorsage and Kavanaugh, thought it was, you know, full speed ahead. Yeah, I'm not sure it's quite to the point of blowback, but it is certainly to the point that some conservatives are nervous that they are not going to get to

the kind of court that they had hoped to hear. Now, these worries have been there for a while, as I said, since the Obamacare decision, a lot of conservatives haven't fully trusted John Roberts but that is why when we start talking about say, Justice Ruth Bader Ginsburg, and you know, her health, there's a lot of talk on the conservative side kind of wondering, you know, will she not be

able to to stay on the court. There's no evidence of that, but conservatives know that if she were to have to leave the court, that would be the time they could get another justice and really have a reliable conservative majority that they don't yet have with John Roberts. Is the Court still ducking or deferring contentious issues as

it did when Kavanaugh first joined. They are. This term looks like it's going to be one where the biggest cases are ones that the Court really couldn't avoid taking it. In the case involving the citizenship question on the census and the case involving partisan gerrymandering for various reasons, they

really had to take those cases. Almost everything else that was somewhat optional the Court has either said no, we're not going to take it, or they've kept deferring acting so long that if they take it it'll be next term. So there is a gun case that they're here next term. There could be various other things. A case involving whether a federal job discrimination law protects people on the basis

of sexual orientation. That could be an abortion case. But for the most part, the Court has managed to defer all those issues so that they're not dealing with them. In Brett Cavanaugh's first term, well, they are dealing with church state issue, and last Wednesday there were oral arguments. Why would they take an issue like that at this point if they're avoiding contentious cases. This might have been a case where enough justice is thought that the lower

court ruling was pretty clearly wrong. So this is a cross that was built as a World War One memorial in Bladensburg, Maryland, and it's now in the middle of an intersection there, and a federal appeals court said that the cross was unconstitutional and might have to be taken down or at least reshaped or moved or something. So that the Court did agree to take that up. And it was interesting at the argument it didn't seem like

there was a massive division among the justices. This not look like it's going to be one of these cases that very sharply divides the Court on a five four basis. It may well end up being a narrower decision that can get more than five justices. How so what would make it a narrow decision? It did seem like the justices were inclined to say that this memorial could stay there, and they might get a couple of the more liberal justices on board with that decision if it's a narrow one.

So Justice Stephen Bryer throughout the idea that maybe because this memorial has been there for almost a hundred years makes it different from something that was just built last week in court might eventually say something like old monuments like this can stay, but you can't erect new ones.

And then Justice Elena Kagan's thought that World War One memorials might be different from other ones because the cross became such a symbol of World War One, the cemeteries in Europe's with all the crosses lined up, Perhaps that World War One memorial is perceived differently than across might be in some other context. Greg Some might say, I'm not saying I would say it, but the Court has taken up so many of these kinds of cases with

different kinds of religious displays. Why haven't they gotten it down to a clear kind of line yet? Well, in part because they disagree So if you call when when Justice sand Did O'Connor was on the court and she was a swing justice on these issues, she came up with a test that said, the key question is whether it would appear to an objective observer that the government is endorsing religion. Well, that was a test that sort of carried the day for the time she was on

the court. But now that she's gone, the court may will abandon that test, that might even do it explicitly in this case, and they would have to articulate some sort of different tests. So these are tricky issues and it matters an awful lot who is the justice deciding them. That I think explains a lot of the variation over the years about how the Court has resolved these cases.

And speaking of variation, does it seem as if Justice Neil Gorstch is sort of off by himself with an idea of restricting the ability to even sue over religious displays. I don't know he's off by himself. The Chief Justice also raised the idea that maybe that's the way to resolve this case is to to restrict the ability of people to sue. You know, Justice Grocer has certainly begun to establish himself as somebody willing to think differently than

some of his colleagues. That is one way the Court could resolve this case is to limit the ability of people to bring lawsuits in the first place. Wouldn't that be a very expansive way to settle this It could be. It kind of depends on what they say. It's maybe

that the devil is in the details. That is probably, yes, more expansive than it would be if the Court did something that could bring on Justice Brier, Justice Cagan to say this monument is different than most other displays because it's a World War two memorial or because it's a hundred years old. Before I let you go, I have to ask you mentioned Justice Ginsburg. She's come back, and she seems to come back with a vengeance. Yeah, it's remarkable. On one opinion day on Monday, in the courts shoot

three opinions and she wrote two of them. She's written three of the courts of nine opinions since she came back from her cancer surgery. It is if she is trying to send a message that she is fully able to do her job and people are starting to take notice. Thanks Greg, That's Bloomberg News Supreme Court reporter Greg Store. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud,

and on bloomberg dot com slash podcast. I'm June Brasso. This is Bloomberg