Whose Court Is It Now?

what is the role of the Chief Justice? The Chief Justice is first among equals. The only two formal powers that the chief Justice has at other justices lack. Is first, the assignment power, So whenever the Chief Justice is in the majority, it's his prerogative to assign who writes the majority opinion. If he's not in the majority, than the

next most senior justice has that role. The second authority is that he has some administrative responsibilities with respect to the Supreme Court itself and the federal judiciary as a whole. So he's not just the Chief Justice of the Supreme Court. The official title is the Chief Justice of the United States, So in that sense, it's an administrative role, not just in a judicatory one, and that differs a little bit from other justices explain the importance of getting the majority

opinion of a justice writing the majority opinion. So, the Supreme Court is a court of last resort. It chooses the cases it decides, and so when it decides a case, it's not simply resolving a dispute between the parties. You don't really need to go to the Supreme Court for that. The lower courts can do that and do it all

the time. The reason the Supreme Court takes a case in the first place is typically to resolve some important contested legal question that affects many cases, and the outcome is in some ways less important than the wording of the opinion deciding the case. The court can establish some new legal test by rule or a standard that's going to apply in many cases, and therefore the author of the majority opinion has a great deal of power beyond

simply deciding how the case comes out. That's decided by majority vote, But there are many different ways to write the opinion deciding a case that will affect lots of other cases. Now it's true that you still need at least four other justices to sign onto your opinion to make it the governing law. But there is a bit of flexibility that the author of majority opinion has to write it the way he or she wants, and therefore

it makes a difference who writes the majority opinion. This Chief Justice John Roberts, like most of his predecessors, will typically keep the majority opinions for himself. In very contentious important cases, it's possible the chief could assign an opinion to a justice and the justice could lose the majority in writing the opinion. Sure, so, let me let me illustrate with an example. Let's say that the Chief Justice assigns an opinion in the leading case to another justice

who's in the majority. Let's imagine to Justice Alito, and Justice Alito writes the opinion in a way that reflects the outcome during the initial vote, but he writes it in such a way that is so extreme that some of the justices who originally voted with him say, well, we still think that that's the right outcome, but we

can't join your opinion. And therefore that one or more of them might write a concurrence, and that concurrence could even attract enough other votes that it becomes the majority. In rare cases, the outcome actually flips from the petitioner wins to the petitioner loses after the assignment of the opinion, because somebody writes an opinion and the justices who originally voted the same way read it and realize. You know, now that I think about it, I think this is mistaken.

I can't join, and I think the other side wins. Doesn't happen often, but it does happen. So if the chief is not in the majority, then the senior justice that is in the majority assigns the opinion. In history, have there been some justices who had more power than the chief because of that will not exactly. I think you might say that prior to his retirement, Justice Kennedy was about as powerful as Chief Justice Roberts because he

was closer to the center of the court. But he more often voted with the Chief Justice than against him. So the Chief Justice still retained the assignment power. But you can imagine circumstances in which the chief is an ideological outlier and thus so frequently in dissent in important cases, that he is not effectively assigning opinions. In those important cases.

I think people thought that might be true when John Roberts's predecessor, William rank Whist, became Chief Justice, because rank Wist had been pretty much on the far right of the court as an associate justice. But two things happened during his Chief justiceship that I think made him a fairly typical chief Justice. One is that additional conservatives were appointed, that the center of the court moved to the right

and thus closer to him. And two because I think he moderated his views a little bit so as to make himself more of a centrist. And therefore it's often the case that a Chief Justice will be near the center of the court in order to preserve the chief's power within the court. Chief Justice John Roberts not last term. The term before last was like Justice Kennedy. He was the swing vote, and then we had the new conservative justices come on the court. He was in the majority

though the time, so he's lost some of his power. Right. So, statisticians who studied the court talk about the median justice, and that's typically the justice who is in the majority more than anybody else. This last term, that was Justice Brett Kavanaugh. He was virtually always in the majority, and sometimes one is virtue always in the majority because one is exactly in the center of the court. So there are four justices to your left for to your right.

Whichever way you vote, you make the majority. But I think it's a mistake to think about who the median justice is on average rather than on particular issues. So on many many issues, there really isn't a single median justice. There's sort of a group of them. I think if you were sort of were to look at this court overall, what we can say is Justice Sodomire is the most liberal justice. Justice Thomas is the most conservative justice, although

Justice Alito is pretty close to him. Justices Brier and Kagan are sort of moderate liberals. Justice Gorsuch is very conservative, but not quite as conservative as Thomas and Alito. And then there's a group of sort of moderate conservatives on some issues, the Chief Justice and the two newest Justices Kavanaugh and Barrett. But that disguises and glosses over nuances. So there are some issues on which Justice Gorsuch is a liberal, like Fourth Amendment search and seizure issue shoos.

Then there are other issues in which Chief Justice John Roberts is actually more conservative than some of the justices we think of as very conservative. And so if you're asking who is the median justice who is going to be in the center, you really need to know more about the particular case than just who's been the center on average. You said that Justice Thomas is the farthest right, explain some of his shall we say, unique positions. For example,

on starry decisive right. The starry dicisis is the Latin term for adhering to precedent. Justice Thomas has said and sometimes voted in accordance with the view that starry decisives has very little role to play in constitutional adjudication. His thought is the Constitution is the supreme law of the land, not the precedents. If the presidents don't correctly preserve the original meaning of the Constitution, then the Court should discard

the president's most justices. Every other justice ever to still on the Court pretty much has taken a somewhat different view, which is that you can't start over every day as though there we haven't been living under this constitution for well over two hundred years. You have to accept as the law prior decisions unless there's some very good reason to overturn them. That's what starry decisis is it's not as the courts somebody says, it's not an inexorable command,

but it is a presumption in favor of precedent. And so what do you need to overcome it? Well, you need not just that you think the original case should have come out the other way, but do you think the original case was very wrong, profoundly wrong, and there haven't been substantial reliance interests people investing money or living their lives based on and the existing precedent. Justice Thomas acknowledges that those are considerations, but he gives them much

much less weight than other justices do. So that's the first area starry disis. Second place I would point to is that Justice Thomas is a more committed originalist than nearly any other of the current justices. That is, he thinks that the Constitution means only what people believed it meant at the time it was adopted. So let me give you an example from a few years ago that it has come up again recently. There was a case involving restrictions on the sale of violent video games to

minors without their parents. Permission a case called Electronic Merchants Association that came out of California, and the majority in the case found that the law was unconstitutional in the way it restricted freedom of speech. The leading descent disagreed, but said, you know, as we apply our precedents, we

think that the court has gotten it wrong. And then Justice Thomas wrote his own descent in which he said, well, the case should come out the other way, That is to say that the law should be upheld, but not because of any current principle of free speech, but because in the eighteenth century, strangers didn't have a right to

talk to miners without the permission of the parents. And so he essentially said that miners don't have any free speech rights because they didn't have any free speech rights in the eighteenth century. And that's the end of the story. So that's a kind of extreme view of originalism that nobody else shares. I just want to get your take on. CNN Legal analyst Jeffrey Tubin has written an opinion piece saying Clarence Thomas is the new Chief Justice. Why do

you think that is correct or incorrect? So I think it's incorrect. I think what Mr Tuban is alluding to is the fact that the Chief Justice in some important cases has sided with the Democratic appointees Justices Briar son of my Ran Kagan, to form a group of four in dissent as against the five more conservative justices. We saw this most profoundly in some of the COVID cases

involving religious freedom. And so when that happens, when you have that alignment of Roberts plus the Democratic appointees versus all the other Republican appointees, then Justice Thomas, as the most senior associate Justice, has the assigning power. And Mr Tuban says the assigning power is the only thing that

distinguishes the Chief Justice from the other justices. So in that technical sense, he's onto something, But I don't think it's really accurate, because the Chief Justice doesn't just assign the opinions. The assignment power is only meaningful if the person to whom you assign it then writes an opinion that is going to garner five votes for its rationale,

not just the result. And Justice Thomas can't get a majority to go along with his most distinctive and most extreme views about story to Scientist about originalism, for example, So it seems to me that we could have a conception of a kind of de facto chief Justice, someone who might or might not be the actual chief Justice, but has sort of the most power on the court, and that would be some combination of being close to

the center of the court and being very senior. Now, the only person on this court who is both close to the center of the court and very senior is in fact Chief Justice John Roberts. So I think that John Roberts is not only the literal chief Justice, but

he is in fact the de facto chief Justice. You could have made an argument a few years ago there before his retirement, Justice Kennedy, who was at that time the senior associate Justice and at the exact center of the court, was the sort of de facto chief Justice, And you know that would have been a reasonable argument. But you can't make that argument today. The most senior associate justice is at the extreme of the court. The justice at the exact middle, Justice Kavanaugh, is the second

most junior justice. So it's only John Roberts who sort of combines seniority and being close to the center. In upcoming case, the case involving Mississippi and abortion take that and say that Thomas wants to overturn Row, but the median justices don't want to do that right away. They wanted to be more incremental. Just explain how that would sort of work out, right. So all of this is

somewhat speculative. But there is a case currently on the docket of the Supreme Court for argument in the coming term, coming from Mississippi, in which the State of Mississippi has asked the Supreme Court to overturn Roe v. Wade and the subsequent cases applying it, and, if not at least to cut back dramatically on it, to do away with the viability line, which is a key part of Roe v. Wade.

I think it's fair to say that Justice Thomas and Justice Alito would tomorrow if they had the opportunity to say we hereby overrule Roe v. Wade. I think it's also likely that three or four additional justices would get somewhere near there eventually, but might want to do it more incrementally. That has been one of the hallmarks of the Chief justiceship of John Roberts is that he moves in relatively small steps for the first time in his judicial career, not this past term, but the previous term.

In the Louisiana abortion case June Medical, the Chief Justice actually voted to strike down an abortion restriction. Now, he did so on the basis of precedent, and he did not commit to applying that precedent forever. But it does

suggest a kind of caution on his part. If that cautious attitude is shared by either Justice Kavanaugh or Justice Barrett, or both of them, then the Court will not fully and frontally over rule Row in the coming term, even though that might be the preference of Justice Thomas, probably Justice Leedo, and perhaps Justice Corsage. Thanks for being on the show. That's Professor Michael Dorff of Cornell Law School, and that's it for the edition of the Bloomberg Law Show.

Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, Slash Law. I'm June Grasso, and you're listening to Bloomberg