Surprise Win for Abortion Rights At High Court

abortion rights. The Court throughout a Louisiana law that would have left the state with only one abortion clinic in a five to four decision this week, Chief Justice John Roberts provided the crucial fifth vote, joining with the Courts liberals to invalidate the Louisiana law requiring clinic doctors to get privileges at a local hospital, a law almost identical to a Texas law the Court struck down in twenty sixteen. Perhaps the Chief gave a hint about his vote during

oral arguments. You know, I understand the point that the impact of um the laws varies from state to state, But why do you look at each state differently if the benefits of the law they're not going to change from state to state. The decision was a huge setback for conservatives who had hoped a newly conservative court would uphold restrictions on abortion. Joining me is Stephen Vladick, a

professor at the University of Texas Law School. The Chief Justice has never voted before on the side of abortion rights. Was this decision all about the Chief Justices vote? I think it was. I mean, I think he signaled that he was probably leaning in this direction last year when he joined the four more progressive justices to stay that

the decision to leave the Louisiana law and hole. And you know, I think, much like his concurrent opinion last year and more versus Texas, this is a case where the Chief doesn't necessarily agree with the majority on the merits, but thinks that the lower courts were wrong to basically ignore or not basically apply the Court's own earlier precedents. So this is very much, I think an institutionalist decisions for the Chief, an institutionalist opinion. Explain how it's an

institutionalist opinion. The Chief goes out of his way not to say that much about the merits and about whether he actually agrees with the majority, rather that most of the opinions about starry decisis and why he thinks the Supreme Court should follow the whole woman's health decision from four years ago. And I think that's very much the Chief day Am. You know, I am not a big fan of these abortion cases. I am generally sympathetic to

state abortion restrictions. But here where the state of Louisiana basically passed the law that was in no material ways different from the one that we just struck down, I'm not gonna ignore the similarities just because I'm sympathetic to the results. And I think that's an important marker, not just for this decision, one that could be very important going forward, as he's increasingly clearly the median and most important vote on the Court in these high profile devices cases.

We've discussed before how Justice Elena Kagan has been sort of harping on precedent. Is this the case she was looking towards? You know, I don't skim so June. I think that the president on started, you know, fidelity to President by Justice Kagan, by Justice Briar. I think it is very much about abortion. But I think the precedents they're much more worried about are the canonical ones. You know,

Row from not sevent three casey from that two. The precedent the Court is upholding is a much newer one of much more recent vintage. I don't think that's necessarily the goal that the progressives had in mind when they started worrying about started side this last term. But I do think that this is part of a broader pattern where where the Court goes with regard to these precedents, it's going to be entirely a function of how comfortable the Chief Justice is overruling them. I think in this case,

he just wasn't comfortable. Given this was four years ago, it was set a pretty dangerous precedent if the legislators could just wait for one new justice to start trying to force the Court to revisit its hands. So simp this is Dune an important battle in the abortion war, but I don't think either side is going to be fully satisfied, which the result of Machnic is just a portent of more and more devisive cases to come. This is being hailed by abortion rights advocates as a huge victory.

Does it portend anything for Robert's votes in the future on cases involving abortion. I don't think so. I mean, I think it's a victory for abortion rights advocates in the sense that it wasn't a loss, But it's hard to imagine a much narrower opinion from the Chief, and it's hard to imagine a case that would have looked much less attractive to him as a way of scaling

back the rights the Court has previously recognized. So you know, I don't think the Chief is going to feel bound by his vote or his opinions to side with abortion supporters in any future case. Indeed, I think he himself suggests, especially in a couple of footnotes in his opinion, ways in which other states that wanted to try to be a little more nuanced could try to impose similar restrictions

as the ones that the Court struck down. That's why I think if it's a victory for abortion rights advocate, I think it's probably short term one, but still a victory compared to a defeat, which is why I think you're seeing any portrayed that way. This was painted as a vehicle for abortion opponents to use it as a step toward overturning Roe v. Wade. Is this decision then just to stumble in the road for them? I think so, June.

I mean, I think for those whose goal is to get the court to read as it road, this was never going to be the case much of the court did it, And I'm not sure we know a whole lot more today about the lifelihood that the Court would read as it road, and we knew yesterday. You know, it's gonna have to be a different kind of law. That's a much more frontal assault on the edifice of Row, on the notion that a woman has a constitutional right

to a pre viability abortion. We're seeing some of those challenges June, and some of these fetal heartbeat cases, for example, which are now probably gonna resume and light of the decisions. But I don't think we know a lot more now than we did about whether this current court with these justices will or will not. You know, a I buy uphold reaffirmed Row in a case in which that question

is properly presented. Justice Stephen Brier, who also wrote the majority opinion in the Texas case, wrote the majority opinion here. Did he reiterate his reasoning in the Texas case or

did he just follow precedent? No, I mean I think a lot of the plurality opinion by this Brier was very much not just reiterating him what he wrote for the majority four years ago in the hole in the health case, but also June, I think carefully trying to explain why that decision four years ago should control of this case, why the Louisiana law is not in any material way actually or legally different from the laws that

the court throughout in Texas four years ago. And so I think for Briar, the key was to show why these cases are not dissimilar. And you know, I don't think Robert actually dis agreed with that. I think he just disagreed with the endorsements of the analysis from the earlier decision at Home and celt and I that's why he felt obliged and compelled to write separately. What was

a thread running through the dissenting opinions opinions. What's interesting about this case is, you know, if you read the dissenting opinions, there's actually very little June about Rower Casey and a whole lot about standing. You know. I think for the dissenters, the grounds they were hoping this case would be resolved on was that the abortion providers June, medical Services, etcetera. Weren't proper parties to challenge louising Allow

in the first place. That would have allowed the court to sidestep a major ruling on the substantiscope of the right to pursue a previability abortion, but of course that would have consequences all its own and making it much harder for courts to hear these kinds of cases going forward. So, you know, I think for the dissenters for Justice Thomas, Justice a leado Justice Courts from Kavanaugh, you know, they're at least stated opposition here was principally to the courts

allowing this case to reach the merits at all. I suspect June that that no one will be surprised if, you know, were those merits to be properly before them, that just as hostile to them that you know, the descents may be focused on standing, but I think it's it's not hard to imagine that there are objections on the merits behind them as well. So during his confirmation hearings, Justice Kavanaugh was questioned again and again on Roe v. Wade, and he said he would follow precedent. Did he veer

from that in this decision? I don't think so. I mean, Justice Kavanaugh wrote only a very short two page descent, although he joined large chunks of justice as much longer descent. You know, I think Justice Justice kavanaugh descent is a little bit cag and careful on exactly that point. He

doesn't say a lot about Rower Casey. He really focuses on the procedural question of whether these planets had standing um and why he thinks this matter should have been remanded the trial court traditional facts finding on that question. But you know, I think folks are not going to

have trouble reading the tea leaves. I mean, I think this is you know, signal and without necessarily staying that he's probably a reliable vote for the conservative in a case where the merits of an abortion restruction really aren't properly before the court. You know, I don't think it's directly inconsistent with anything he said during the confirmation process, but mass it certainly does him to be some writing on the wall. We've heard a lot about Justice Robert

It's Justice Corse. Has Kevana been a reliable conservative vote during his first term here? I think for the most part. I mean, I think there's one or two cases June where you know, he's been on the What we might think about is the other side where he sided with the progressive um only one that comes to mind where he was decided him vote UM, and it wasn't an especially a major or contentious case. It was an anti

trust case. Um. You know, I think he's probably been in some respects more reliable um in a smaller data set as a conservative vote than Justice Corset has been obviously Justice Course, it's you know, it's fresh off of the majority opinion he wrote in the LGBT discrimination case. Um. You know, so I think I think it's it's pretty clear that in Justice Kavanaugh, the Conservatives got what they were hoping for. Um. Whether that holds across a larger data set will see. But you know, I also think

it's just also a sign of the times. June. You know, we had a thirty year period where we had a Supreme Court with you know, two very obvious swing justices Justice sandreday O'Connor, Justice Anthony Kennedy, where you could see these pretty profound shifts in majorities from one case to the next. That's not where we are now. We have a solid conservative majority, and results like the abortion case

don't change that. I thinks they just show that there are at least some limits that even the solid conservative majority won't transgress. This was the third time in two weeks that Chief Justice John roberts disappointed Conservatives in a blockbuster opinion. Is he now the next Justice Kennedy? Oh?

I think it's been clear June, since Justice Kavanaugh was confirmed to the Supreme Court that in most not all, but most of the high profile divisive partisans, you know, socially contentious cases before the Supreme Court, the departure of Justice Kennedy puts to Justice robertson in the middle. And I think you know, we're seeing that this term in phase um. It's not just his decisive vote today in the Louisian abortion case, not just his majority opinion in

the Docker case. You know, it's also that he also joined Justice Corsage in the LGBT discrimination case. So you know, there are going to be outliers where it's not the Chief who's the swim vote. But I think you know, in these high profile cases, more often than not, yes, where there's a five to four majority, and it's you know, for the Conservatives who are dissenting, the one who will have been perceived to switch on side is the Chief Justice. June.

I don't think that's because anything about the Chief has changed.

I think that's because, you know, the Court itself has changed, and because the kinds of disputes the Court is taking are you know, increasingly gravitating towards ones where if any of those five justices are going to be a some client to side with the quote unquote conservative position, it's going to be John Roberts using this opinion and looking forward at some of the other opinions that are coming out, especially the decision on the subpoenas for Trump's financial records,

Does this tell us anything about how Justice Roberts may vote in that. I really don't think so, you know, I don't think that this is any kind of broader shift or pattern in how the Chief Justice since about his job. You know, I think he's he's able to take different cases differently. I mean, you know, right after we got the abortion opinion this morning, we got the Chief justices majority opinion in the CFPP case, which was a very classically conservative separation of powers holding from him.

So I don't think we should read anything broader into his votes in these cases other than the reality that he is now the swimming vote, and you know, June that could show up again. As early as you know the cases where there coming down on Tuesday or the rest of this week or next week. Um, you know, I don't think this is the last time this term that the chief is going to be the swing vote.

I also don't think that you know the fact that he's the swing vote in some cases, in which cases it's most likely thanks for being on Bloomberg Laws, Steve. That's Stephen Vladick, professor at the University of Texas Law School. In a closely divided decision on Monday, the Supreme Court backed the president's power to fire the director of the Consumer Financial Protection Bureau, but stopped short of abolishing the

agency altogether. Chief Justice John Roberts sided with the Conservatives in the five to four decision that found Congress went too far in trying to insulate the agency from political pressure, striking down a provision in the Don Frank Act that protected the director from being fired. Joining me is jail Fish, a professor of business law at the University of Pennsylvania Law School. This decision seemed to give some and take

away some. It ruled that the CFPB is constitutional, but that its director can be fired with to have caused by the President. It's clearly a compromise, and you see that not so much in the majority opinion, but in the stridency of both Justice Thomas and Justice Kagan's opinions. They, I think, highlight how extreme a position the Court could have taken in either direction and chose not to. Chief Justice John Roberts wrote the majority opinion, what was his

reasoning for coming to this decision? So, I think there are three components to this. I think first, and most importantly, the future of the modern administrative state. The breadth of the Court's reasoning could potentially affect the legitimacy not just of the CFPB, but a range of independent agencies, the FTC, the Federal Communications Commission, the Securities and Exchange Commission, the CFTC, So the Court had to be careful not to undermine

the workings of those agencies. Second component, the Court I think was very concerned not to disrupt completely protection of consumers and consumer finance regulations. A broadly written decision that struck down the CFPB entirely would have left consumer protection in a range of areas completely undesignated. Right, other agencies don't have the manpower, don't have the bandwidths and in some cases don't have the statutory authority to pick up

the flat. So the severability question, which seems like a kind of technical one, preserved the status quo and left the only issue the authority of the President to remove this head of the CFTB. That's a kind of narrow ruling. Third issue, the Court was, I think concerned about expansions of the administrative state and idea that we really need to be faithful to old cases, to history and to tradition, and that theme. You see a little bit of the

majority opinion. You see that even more Injustice Thomas's partial descent, the idea that you know, really you need limiting principles here. And so although the opinion is narrow, it sets out some important limiting principles. So how far does this go towards conservatives movement to curb the administrative state? Not very far at all. The key distinguishing feature of the CFPB in the courts opinion is that it has a single director.

That's unusual for administrative agencies. That's not the norm, and the language of the Court's opinion doesn't extend beyond that single director feature. So this makes the head of the CFTB sort of like a cabinet member who serves at the pleasure of the president. Yes, So does that mean that in order to make the CFBB more independent, Congress would have to pass legislation that gives it sort of a structure like other agencies where there are five directors

or so and they alternate tenure. Well, that's one possible Congressional response. The Court's opinion is narrowly written, so it doesn't expressly say if Congress made this a multi member board. If Congress made this a bipartisan board, that would be enough that would fix the constitutionality. All the decision says is a single member isn't constitutional unless he's removable at

will by the president. But it would seem that a multi member board that looks like the board of the other agencies that I refer to would pass constitutional muster or alternatively, would push the Court to graph with a much more broadly ranging analysis. Let's talk about the discent a little bit, because part of the dissent was Justice Kagan saying that this wipes out a measure of independence

from political pressure. Do you agree with that? I absolutely do, and I think that independence from political pressure was a key concern of Congress in setting up the CFPB, and we've seen since its origin the CFPB has been the target of you know, massive political pressure. So you know, that's absolutely a concern. But interestingly enough, Congress insulated the CFPB in a number of ways. It isn't just the single director, at least under the statute not removable at

will by the president. It's also financial independence, and the Court didn't seize on that. The Court mentions that, just Robert mentions that a couple of times in his opinions, but ultimately the only constitutional frailty that he identifies is the fact that there's a single director. So I think the message is that a degree of political installation is

both still possible and constitutional. Now, Richard Cordray, who was the former director of the CFPB, wrote an op ed in The Washington Post saying this decision will actually help the bureau's enforcement work since the constitutional challenges are settled. Yeah, I definitely think that's true. Again, you know, the opinion is written in such a narrow way that it puts to rest a lot of the questions that have been percolating about the overall legitimacy of the CFPB and the

degree of installation that's enjoys. So I think with those issues more or less off the table, UH, it can go about its business with a greater degree of latitude than at least you know, some of the officials may have felt they had. What is it about the CFPB

that has had conservatives in an uproar since it was established? Well, if you think about kind of the politics of interest groups, the cfpbs mission is to defend an interest group, consumers that typically hasn't had an awful lot of political power at the expense of politically powerful groups banks, credit card companies and the like. And so I think that's been

controversial from the beginning. The CFPB has also a rich cordre is you know, an example of this has had leaders who have taken aggressive positions, who have identified problems instead of worked really to bring strong reforms into place. Um they have uh sort of pioneered a lot of new regulatory approaches, a lot of satirical work testing consumers, um uh, trying to draw upon a broader base of fact finding in generating reforms. So, you know, they've stepped

on a lot of toades. Senator Warren, who was fundamental in the establishment of the CFPB. It's sort of like her baby, people say. She tweeted that the Court just handed over more power to Wall Street's army of lawyers and lobbyists to push out a director who fights for the American people. It is her baby. But again, I think there was a lot of potential for the Supreme Court reasoning to be more expansive and to really cripple the CFPBS ability to function. And I think the opinion

is written it's pretty hands off. Yes, giving the president the power to remove a sitting director at will obviously provides a degree of political accountability and reduces the agency's insulation. But it's a fairly modest limit in comparison to an opinion that went into some of the other constitutional challenges to the CFPBS legitimacy. Kathy Croninger is the head of the CFPB since Cordrey resigned. How has she been handling

the agency? My sense is the CFPB has been run in exactly the way we might think of the ideal independent agency. It's not being sort of in the political spotlight. It's been doing its work in a lot of different areas. It's trying to rely on expertise and science and evidence rather than politics. I think those are all things that the CFTB or any administrative agency should be doing. Now.

The irony here is that the Trump administration won this decision, but if Trump loses in November, it will allow the next president to remove Craninger and a point whoever he wants. Yes, And to a certain extent, to Justice Roberts is right, when you have a single director, it's kind of ironic to think that the president wouldn't have any power in choosing who that single director is for what might be

the entire period of his or her administration. You know, that's one of the I think pragmatic differences between a single director agency and a multi member agency like the sec um for the CFTC. Every president has input in a multi member agency, whether or not the president can remove the entire or board or the commission. The president can nominate people, can sort of change the direction, can change the dialogue. So I think that level of input

is probably valuable. And so I guess what I'm saying is, I'm not sure that Chief Justice Roberts is wrong to view a single director structure as presenting distinctive concerns. So now in this case it was Celia Law appealing. They've basically lost, haven't they, because the CFPP can go ahead

with its enforcement actions. It looks like they can. There are a few technical issues that the lower court is going to have to resolve about exactly how the demand for information was authorized within the CFPP structure, But yes, it does look like they've lost. And presumably the CFPP, even if the existing demand were improper, could always renew the request. You talked about. Justice Thomas's dissent was his

level of outrage. So there's been an ongoing debate and this has gone on for decades in administrative law and constitutional law about the legitimacy of the modern administrative state, whether you can really have administrative agencies they carry out the functions of not just the president, but Congress and

the courts as well. And Justice Thomas takes this sort of conservative position that this expansion or this delegation of power is a legitimate that you have politically accountable branches, the presidents in Congress, and you can't escape that political accountability by moving their responsibilities, their policy making, their functions to an agency. Well how does Thomas suggest running the country without the help of agencies in the majority opinion

is exactly that. It's like, who's going to run the country if we somehow write a broader opinion that suggests the whole administrative state is illegitimate, you can't really do that. You know, you can say the administrative state is legal, but as a policy matter, maybe we have too much installation, or maybe administrative agencies they exercise too much power and it's inappropriate, or they don't make good decisions or something

like that. One of the things that's interesting about Justice Kagan's opinion as an academic, she was really embroiled in this debate. This is her area of expertise, and it's a very finely written opinion because it distinguishes the legal issues, the constitutional issues, from the prudential ones, from the policy debate. That's Jill Fish at the University of Pennsylvania Law School.

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 Brolso this is Bloomberg h