Why It Won't Be a Blockbuster Supreme Court Term

College of Law. Broadly speaking, Neal, when you look at the docket coming up, does it seem as if there are fewer blockbusters this year? Yes, it seems like there are many fewer blockbusters. Um, in part that's kind of an unfair comparison to which had an extraordinary number of blockbusters. So comparing almost any year to is going to look boring. But I think it's also a conscious decision on the part of particular pularly Chief Justice Roberts to pull back

a bit from controversy. Controversy is not good for the Supreme courts public image and it's not great for their standing, and so I think Justice Roberts in particular is acutely aware of all of that and serves the courts sort of public image and its legitimacy to pull back a bit from controversy, let things die down a bit before they start taking on the real hot button issues again.

So the conservative wing of the Court must agree with him, right, because it only takes four justices, and they certainly have four justices there to take a case that's right, at least so far. But I think Justice Roberts still has some some real influence within within the conservative set of justices, even though he can be and I'm sure will be outvoted by them and that they will move further right and move more quickly than he wants to, But he still has real influence, and so I think we see

that with this. How much does this have to do with the change of administrations coming up? Well, it may have to do with the change of administrations in that a lot of the issues coming out of the Trump administration are likely to be mooted with the Biden administration coming in. So some of the controversial moves that were being challenged in court um will be withdrawn under the

Biden administration. I'm thinking of things like the legality of Trump's decision to build the border wall on the southern border to use an emergency designation of military construction funds to do that, and the legality of that order is really dubious and is pending in the courts, But that's certain to become moot once Biden comes in. There are a number of other of those sorts of measures that Trump has already taken that I think will quickly become moot.

And there may be others in the waning days of the administration that will follow that mole. What is the procedure exactly, and let's say the border wall. Does the Biden administrations say we're going to retract this case or does the court have to say it's moot? Um? Both

of those will happen. So the court, so the the the Abiden administration and the Justice Department can can say, um, we're no longer proceeding with this action, so please dismiss the cases moot, and the court will have to agree um. And in those sorts of cases, the court's agreement is routine. There can be situations where the court has a kind of oversight role um and so might not agree to dismiss the case even though the Justice Department is asking

for that UM. And here I'm thinking of the Michael Flynn prosecution UM. At that point, Michael Flynn had already pleaded guilty UM, and so the court had real supervision over what kind of sentence to give UM, and was continuing to exercise that role until finally Trump issued the pardon that rendered the whole thing move UM. So there are those kinds of unusual situations where a court can decide to keep a case even though the Justice Department wants it to go away. But for the most part,

those are extraordinary circumstances. For the most part, um, if the administration decides to stop pursuing a particular course, the courts are only too happy to have it dismissed. Cases coming up that may prove controversial or probably will prove controversial. Cases involving voting rights. Two cases from Arizona tell us

what they're about. So the Arizona cases involve fundamentally questions about the application of Section two of the Voting Rights Act, which is a section that protects voting rights and particularly protects against the delusion voting rights. And so the Arizona cases involved fairly technical questions of voting procedures. And these are important because the Supreme Court some years ago struck

down Section five of the Voting Rights Act. Section five was the preclearance provision, so certain jurisdictions, particularly here in the South, time in Atlanta, were required to pre clear any changes in their voting procedures because of the long history of discrimination and particularly race based discrimination in the covered jurisdictions. The Supreme Court struck that section down, and so all that's left is Section two. And Section two

doesn't require preclearance. It allows jurisdictions to adopt their rule changes and then have them litigated. And so now we're going to see what kind of role the courts are

going to play in terms of oversight. Will they be protective of people's fundamental right to vote or will they be deferential to the states and the state's decisions to change procedures and those very technical changes in voting procedures I think we've seen through the recent national elections can have dramatic consequences for the outcome, particularly in states like Arizona where it seems to be closely divided Republicans and Democrats, where the states are very purple, very much in play,

and so Arizona is at to be a battleground for voting rights and for manipulation of voting procedures moving forward. Georgia, my state is, is another of those. And so I think that case will be a real sort of tip of the Supreme Court's hand about which way they're going to come down, states rights or individual voting rights. I remember Justice Robert's opinion in the case you refer to the Shelby County case with the racial injustice marches this

past year. Do you think that his reasoning in that case false flat? Well? Yes, um, I think the reasoning in that case fell flat the day it was issued. It was a remarkable act of judicial invention. Um. He made up this doctrine, called the equal footing doctrine UM, out of whole cloth, saying that federal rules have to treat the states equally. That is a doctrine that had been completely unknown in constitutional law until Justice Roberts invented

it for purposes of Shelby County. There was a different equal footing doctrine that applied before that that had to do with admitting new states. Shelby County had nothing to do with that, and Justice Roberts just made up this doctrine and gave it the same name as if it had anything to do with the previous cases. So that

opinion has always been one of really questionable principle. But you're you're quite right to say the events of the last year show in a very practical way just how bankrupt the reasoning of that of that opinion was, and now just how consequential that bankrupt opinion has always been.

Wasn't the Shelby County case the case where Justice Ruth Bader Ginsburg sort of earned the notorious RBG reputation for her dissent there, It was a classic, So that that's certainly one of them where she earned that reputation um where she helped make famous her descent dicky. So yeah, that's that's a that's a classic moment in the RBG canon.

There are also some cases involving separation of powers, involving administrative patenter DGEs and social security administration judges, not cases that you normally think we're going to draw a lot of attention, but in this term it may draw attention. Tell us why those cases will draw attention in this term, because there aren't the blockbusters of last term to sort

of draw the attention away from them. These are the kinds of seemingly technical and inconsequential cases that really are extremely consequential um and really important, And so they're being a sort of spotlight on these cases I think is good.

The reason these cases are important is that they have a lot to do with the status of administrative law judges, which you know, just me saying those words probably puts your listeners to sleep, but I would hope, but I would hope they'll stay awake and pay attention to these cases because so much of the work of the government is done through these kinds of EFFICI shoals, And what these cases ultimately are part of is a really important question about just how much power the president has over

these functionaries. Right, So people who, for example, determine whether or not you have eligibility to receive social security benefits, or whether a particular immigrant who's applying for asylum or for refugee status actually has that status recognized. Right, These are important decisions, and under current law, they're supposed to be made according to legal principles and through a judicial

process that's independent of political inputs. But Throughout the Trump administration, there was a concerted effort to corrupt the decision making process and to introduce um policy values and political values into how these administrative figures did their jobs. Determined whether or not individuals are eligible for benefits, determine whether or not individuals are eligible for asylum, that that should be determined not according to the principles of law, but rather

to Donald Trump's own political preferences. UM. And so these cases very fundamentally deal with that question of just how far into um the administrative state the president can impose his political preferences. Right, So these are very fundamentally important questions, even though they arise in a context that sounds deeply

inside baseball and boring. So, looking at the way the Court has ruled in priar cases and taken into account the fact that you have an even more conservative court now and there's been a lot of talk about the administrative state, any idea how they might rule. Yes, So the Supreme Court's current majority is strongly in favor of

the unitary executive theory. And if that theory is put into play in these cases, and I suspect it will be UM, they are going to expand the ability of the president two essentially politicize the administration of laws and

the enforcement of laws. Um. The the countervailing consideration, I would say, Um, the thing that would make me hesitate in making that prediction is that these cases will be decided under abiden administration, and the conservative majority of the Court is going to be a little reluctant to unleash its theories of executive power when there is a democratic president and offer us right. So I think those are

the two forces at play in principle. Um, the six conservatives on the Supreme Court are strongly in favor of executive power, but they're not strongly in favor of Biden exercising executive power. Right, So those will be the two things competing against each other when those justices beside these cases, if they don't follow what you expect, Won't that be a declaration that politics is at work here at the court? Yes,

if people see it. Right. So, because these issues come up in obscure cases dealing with administrative law judges and patent law judges, Um, it's apt to evade public notice. But sure that that would be the declaration, But it wouldn't be the first time the Court has made it UM. You know, I can think there are plenty of cases from the Commy years when you know, Justice Roberts in spite of his commitment to the unitary executive theory and

found that the president didn't have certain powers um. And so you know, there would be nothing new about that, that move to apply political values instead of um legal principles. They're not done filling out their docket for the remainder of this year, and there's a case involving Mississippi's fifteen week abortion band that's been rescheduled over and over again at conference, and I'm wondering what the forces are for taking that versus not taking that, because that would certainly

become the most controversial case of the term. Yeah. So, you know, there's been a lot of speculation about what the Supreme Court is going to do on abortion now

that there's a six justice conservative majority. And so the two schools of thought are one that the Supreme Court is going to take a ghost slow approach, an approach that doesn't directly confront row versus Way, and instead the Court will hollow out row versus Way, sort of cut back on it to the point where it exists on paper, but as a practical matter, states can regulate abortions out

of existence. The other school of thought is that the sixth Justice conservative majority is going to say, if not now, when, and if not Row, what are we doing here? And so on that theory, the justices would vote directly to overrule Roll versus Weight, And I think that's very much a debate that's playing out. I suspect, for what it's worth that the Supreme Court is going to directly confront

Row and overrule it. And if they're going to do that, I think they've got to be thinking sooner rather than later, because they don't particularly want this to be a big issue in a presidential election, and so making that kind of decision farther from a presidential election is better. Thanks for being on the show, Neil. That's Neil Kincaugh, a

professor at the Georgia State University College of Law. Joe Biden was formally recognized by Congress as the next president of the United States early Thursday, and in two months of fail legal challenges by Donald Trump that exploded into violence at the US capital as lawmakers meant to ratify the election result, joining me as elections law expert Derek Muller, a professor at the University of Iowa Law School, looking at it from the perspective of the law and election law,

how would you describe this election season? Yeah, I mean, you know, in theory, every presidential election is unprecedented, and we can use that in different ways. You know, this one, you know, was driven extensively over the last couple of months by principally some conspiracy theories and things that have just never really carried any weight and never should have seen the light of day, but continue to get perpetuated.

And that's not to set aside some people serious grievances with things like late breaking changes to certain laws that were enacted in things like that, But but the sheer volume of misinformation out there and just the inability of those closest to the president to rely on sort of the objective and careful work of so many election professionals around the country, in addition to all of the double

checks and triple checks in our process. You know, I've certainly been the most disheartening thing and certainly came to ahead in the in the riot that that happened on January six in the Capital are the riots what made it fizzle out? Or are there checks in the system

that would have made it fizzle out? Yeah, I mean so my anticipation based upon all of the politics leading up to the moment, and right, a lot of it is political, but out of politics leading up to January six, I anticipated we would have had a long day, you know, probably ten hours, probably three plates of electors formally objected to, with two hours debate each and votes on them, but all of them would have been counted, So we would have had some stress on the system. And that's how

to say we haven't seen it before. You know, I've written about some democratic attempts that ended up now we see much smaller in scale over the last twenty years, and the ones that Republicans put forth on January six. But the system would have played out so that there would have been some some really theoretical, um fantastic kinds

of scenarios. Right if if Vice President Mike Penns had done something truly extraordinary, essentially recalcitrant in the face of Congress in terms of how to handle electoral votes or individuals objecting to every single state and its electors, which forces two hours of debate each and every time. Right, So there are these sort of theoretical provisions, but again, we still are a country of laws. Um, you know.

I I I'm grateful for the Vice President's decision making and deference to the Senate parliamentarians and the legal advisors around him. And I think there's also the political pressure that that attends members of Congress. And while some of them thought raising objections as a wise thing, I think a lot realized it was not a wise thing, certainly

many more so after the riots. And so, you know, there have always been some political checks, but there's no question now I think we've you've seen this steady escalation in the last twenty years, um, you know. And yesterday was a significant escalate escalation of this county of electoral votes as a moment to protest the presidential election. And that is, um, that is worrisome, and that's something that I you know, several Senators in particular, were concerned about

the precedent that this sets for the future. UM. So I don't know how that's going to be handled in the future. I don't know if there will be opportunities to amend the Electoral Account Act to reduce the chances of such things happening in the future. I just I just don't know. You know, the political checks worked, uh you know this time. Um, you know they prolonged and stuff, but they worked. The question is how how that works

in the future. What should be done now? I mean people are talking about exhibitions and what should be done? Is there any clear path? Yeah? I mean I think a lot of depends on you know, where people think the problem is. Um, if people, especially Republicans this time, have a lot of distrust in what was happening in state, you know that there are two solutions. There's one is to go to those states and say, provide greater clarity, greater guidance, Um, you know, more robust remedies in your

judicial system. Uh, you know, more acts anti sort of questions that can be answered by the legislature. Um, you know things like that. You know that that would be one way to go. Another is that the federal government wants to look at these questions and say We're going to enact some greater uniformities and legislation that provides some higher levels of uniformity. That's something that might instill some confidence if we can find some bipartisan solutions on that front.

And the problem is it typically tends to be uh partisan solutions, which is the problem, right that that a lot of you know, HR One, which is sort of uh, the the We the People Act promulgated by Speaker Pelosi and others, has been sort of a democratic which list of of election of objectives that a lot of Republicans are going to oppose. And so trying to find either a bargain or some sort of neutral agreement about how to proceed forward is going to be it's gonna be difficult,

I think. Um. So at this point, there's gonna be a lot of shows about having commissions and integrity projects and things like that, but you know, we've done those before. Um, A lot of them don't go anywhere. We had to help America Vote Act of two thousand two, which was designed to help solve some of the problems from two

thousand UM and punch cards and things like that. And and maybe we'll have a little bit of of sort of good governance efforts going forward on the optical scan ballots, on you know, requiring audits of elections, things like that. But you know, with it, with all these things, you can what might be a small bill can quickly steamroll into a large bill if people want to put a little bit of everything election related, and that can be

harder to get bipartisan consensus on. And the speeches that you heard from Republicans who are objecting, was there anything of substance? Yeah, I mean again, I think one of the one of the harder things that's thinking about the role of the legislature and the role of other UM wings of the government. Right. And there's no question that this election required states to be nimble. UM. COVID put a lot of strain on the system. And while there were a lot of state legislatures that took some action,

there were also a lot of things that executive officials did. UM. You know, either where the law was silent or potentially, depending on the state, I have been a little bit contrary to what the legislature had intended. And so that, you know, there are a lot of things about fraud that I don't think Harriet the Day or you know, had any weight signature checks things like that. UM. But you're talking about this sort of allocation of responsibility in

the states. UM. You know, there's a little there's a little smoke there to say, uh, you know, the state legislatures were um, you know, getting kind of run over by certain kinds of decisions from executive actors or consent decrees entered into by uh, you know, executives with plaintiffs groups that sued them. UM. But again, you know, I think, you know, people look back at the election and a lot of people participated, a lot of people were happy

with the options they had. UM. There were very low rejection rates for absentee ballots with campbel opportunity to submit them. You know, we had a lot of worries about post office fiascos that never came through. So in terms of the administration side, it all came through. UM. But you know, when when a side loses and they look back and they see those sorts of discrepancies between what what executive officials did and what might have been the express legislative scheme,

and there's a lot of pressure. UM. So again I think sometimes when courts considered these challenges. There's one from Pennsylvania that went to the Supreme Court before election day, UM, and the ballots haven't encountered yet. From from those from those votes, UM, there's one sort of small challenge that I think is the most interesting, and a lot of others courts have rejected. Courts have looked at and said, now, the executive has this authority. The legislature gave them the authority,

all these kinds of things. So, um, you know a lot of the critiques just didn't didn't carry the day in my view, um, despite the smallest kernel of truth in some of them. And turning to Georgia, was it the turnout? A lot of people are crediting Stacy Abrams with the turnout. What's your take on what happened in Georgia? Yeah, I mean, so many political questions to think about. There's

no question vot registration has gone up. Some of that is probably attributable Stacey Abrams, but they've also instituted automatic voter registration in the state of Georgia. So that's dramatically

increased vote registration. UM. George is precisely the kind of state UM that's been you know over the last four years that would be more attractive to Democratic candidates UM as upwardly socially mobile, economically mobile, uh sort of state that uh, you know, it's precisely the kind of suburban voters the Democrats have been winning in droves over the

last four years. And so you look at the fact that you know, President Trump lost, Arizona, lost Georgia, that there was an Senate election in Alabama that was lost right in toy seventeen, and maybe look at the candidates in Georgia, especially uh when where one of them was an appointment by the governor. H there was an appointment by the governor in Arizona, or the candidate lost in an election in the same way, um, and there was an appointment by the governor who lost in Alabama and

toy seventeen. You know, sometimes the candidates matter and sometimes it's it's just sort of the politics of the place. So you know, we look at Georgia, there were there was a Republican who won a statewide state election in the same race that two Democratic senators in the United States won that race. So it's a state that, you know, like a lot of states, is more complicated. May have to give it credit for and and we'll just see what kinds of recruitment and and interest there is in

in the politics of that state going forward. Because the results for us Off and Warnock were so close, I mean they were still alike. Does it seem as if people in Georgia were voting Democratic Republican, they weren't necessarily voting for the person. Yeah. I mean, you very rarely get what's described as a double barrel election, right where you get to Senate candidates on the ballot running running

at the same time. And a lot of people have written about the increased nationalization of politics over the last forty years and that increasingly, you know, we viewed this a sort of Democratic Republican and you know, in this race in particular, it was kind of changed and defined control of the Senate if it's both Democrats or not. So I think that only sort of heightened the kind of stakes for a race like this. It's remarkable to

meet a nationalization of politics. To think about these elections, that the most expensive Senate elections in history, that we're spending a long time talking about. You think it's it's a Georgia Senate election, it's just George general. But but you think about the impact that it has, and I think that this has driven a lot of the focus and the turnout that happens. Thanks Derek, that's Derek Muller, Professor at the University of Iowa Law School. And that's

it for this edition of the Bloomberg Law Show. I'm June Grasso. Thanks so much for listening, and please join us at ten pm Eastern every night for The Bloomberg Law Show right here on Bloomberg Radio.