This is Bloombird Law with June Grasso from Bloomberg Radio. Her four hundred and eighty three majority concurring and descending opinions, we'll steer the court for decades. They are written with the unaffected grace of precision. Her voice in court and in our conference room was soft, but when she spoke, people listened. For the first time in twenty seven years, Justice Ruth Bader Ginsburg's voice will not be heard at the Supreme Court. The Court's liberal wing was outmatched before
her death, and it's going to get worse. How much worse that depends the courts for liberals had managed to eke out some winds in controversial cases when a conservative justice, usually the Chief Justice, crossed over to build a majority in five to four cases. Now they'll have to win over two conservatives. My guest is Andrew Crespo, a professor at Harvard Law School. He clerked for both Justices Stephen
Bryer and Elena Kagan. There was only one case in the past term involving a hot button social issue in which two conservative justices, Chief Justice John Roberts and Justice Neil Gorsich, sided with the liberal justices in a landmark victory for gay rights. So what does a new solid conservative majority mean for the prospect of liberal victories in the future. So I think it is the essential question, and the short answer is, we don't know that could go.
I think in sort of one of two ways. The assumption, based on some of what she's written and on her profile, is that a new Justice Coney Barrett will join Justices Thomas and Alito informing what is the sort of far right grouping on the current Supreme Court. The most conservative justices and obviously the liberal wing of the Court which used to be for justices, will now be composed of just three Stephen Bryer, Elena Kagan and only system I own.
The open question is what happens with the other two or three justices on the court. Chief Justice Robertsfice breat have not in Justice Neil Coursus. Look, it's important to realize that those three justices are also strongly conservative justices. This is now going to be a six three conservative court in terms of the ways in which those justices think about some of the essential questions of legal interpretation
of constitutional law. You have six justices who share a common conservative approach who have had the career trajectories and the jurisprudential philosophies that mark them all as part of a clearly identifiable conservative tradition of jurisprudence. The thing that might subdivide that group of six is how much they
view themselves as institutionalists versus conservatives first and foremost. In other words, how much is their primary instinct to try to protect the Supreme Court as an institution, to try to steer it away from the bumpiest, most turbulent sort of culture war and ideological battles so that the Court can try to maintain at least the image and potentially the reality of being above the fray. Or how much is their primary goal to actually win those cultural battles
and you know, full steam ahead into them. So where do you see the conservatives falling on that spectrum? I think that Justice is Thomas and Alito are more like in that latter camp, more likely to prioritize winning those battles. I think that we've seen Chief Justice Roberts, at least for the time being, in that institutionalist position, and that's how we've seen some five four rulings that the liberals have won because the chiefs has sometimes sided with them.
The key thing now is the Chief alone won't be able to do that. So the question is, will there emerge a kind of institutionalist middle block, perhaps with Justice Kavanaugh joining the Chief Justice to join with the remaining three liberals in rulings that try to just turn down the temperature, that try to air towards calmer waters. That's the big question. If that happens, then you could potentially see the emergence of some continued five four rulings where
the far conservative wing still loses. If that doesn't happen, then I think you'll see a real growing and emerging chasm between the six and the three. Justice Kavanaugh only sided with the liberals in a five to four decision once this past term, and that involved anti trust. So why would he be that second vote that the liberals
need besides the Chief. Well, the dynamics have changed. Right before, you didn't need his vote to allow the Court to protect its institutional reputation because the Chief was carrying that all on his shoulders. The Chief alone could sometimes vote with the four liberal justices and allow the Court to not be sort of taken sharply and aggressively all in one direction on some of these most top flighting issues. In other words, Justice Kavanaugh was off the hook for
his vote. Wasn't necessary for the Court to be able to chart that type of path that tries to occasionally see are clear of some of the most divisive, the most aggressively conservative pulling. Now that won't be the case right now. The chief that most if he tried to do that by himself, would be giving a fourth vote.
There needs to be a fifth vote. So the question is there's Justice Kavanaugh now seeing himself as essentially, um you know, being in the hot seat on those questions of do we go the route of you know, going hard to the right or trying to turn down the temperature and ste are clear of some of these um these most divisive issues. It's basically his decision now, or at least it's his decision and the chiefs together, whereas before, frankly, he wasn't being called on for that right you know,
now now now the attention turns to him. This assumes that all three of the liberals stick together, and they haven't always. There were cases this past or where Justice is briar and Kagan sided with the conservatives. So how tied is this new liberal group. Yeah. So, you know, whenever there's an instance in which the Court is potentially um staying it's hand and not going for the most um, you know, far right interpretation on the table, you can
count on the three justices Ginsburg. I'm sorry, Justice is Briar, Kagan and so of Mayor Uh to want to resist any sort of hardshift to the right. Um. But your question, I think gets that, well, what do we expect to happen when we continue to see the occasional UM rulings where Justice is Briar and Justice is Kagan sometimes vote in ways that one might not expect if one's just sort of a predicting a sort of you know, liberal conservative split. Um. I think that we have seen in
the past those two justices. Um. You know, when Justice Ginsburg was on the court, the four liberal justices sometimes had two different approaches within their groups. Right, there was Justice Ginsburg and Justice so to Mayor, who would often articulate sometimes the the strong form version of of of
a liberal position. And then you sometimes saw Justice A. Briar and Kagan together trying to create a climate on the court where the Chief Justice, uh where it was um he had a sort of hospitable, welcoming um environment in which he could take that decision to sort of protect the institution and try to find a sort of narrower or or um you know, an approach that would turn down the temperature. And they were they were trying to meet him and trying to help him do that.
I think that if we see an institutionalist middle block emerge with Chief Justice Robberts and potentially a Justice Kavanaugh, but it would not surprise me to see Justice Is Briar and Kagan continue trying to you know, do their part and and and also create a institutionalist middle of
the court. But if instead Justice is Kavanaugh, if Justice Kavanaugh does not show up for that, or if the Chief Justice decides that he can have more influence over the Court by actually voting with the six all the time and assigning those opinions, then Justice Is Brian and Kagan won't have anyone willing to join them in that effort of trying to um, you know, steer the court towards the the the the narrower and less contentious grounds.
And I don't know that you know, they would keep showing up for that, if they keep trying to be there and meet some of their colleagues uh in that middle spot. If they're constantly showing up in there alone, then I'm not sure that there's much reason for them
to continue doing that. And you may see a more permanent and entrenched and kind of almost um uh separated wings of the court where it really is the three um liberals, this is very much together holding up as the the firm dissenting wing of the court, as opposed to trying to find a kind of institutional center. Justice Kay again, whom you clerked for, is seen as this sort of go between moderator, negotiator. What will her role
be like on this new court? A lot harder, a lot harder, and uh, you know, she is uh an incredibly talented both jurist but also someone who understands these dynamics better than probably you know as well. It's not better than anybody. There's you know, maybe a couple of people who are also on the Supreme Court who understand
these dynamics as well as she does. But you know, if if I've been describing this right, her job has gotten in some sense, I guess twice as hard right, She now needs to try to find ways to persuade two people who might not be inclined to agree with her on the sort of merit of some of these issues that it is to the good of the Court and to the good of the country for them to come together and try to find ways to steer the Court away from all of the troubled waters that come
from going just full steam ahead into you know, all of the the the the the rocks and strolls of divisive culture wars. Or she had to persuade the Chief Justice, or she had to work with the Chief Justice, or try to find common ground in that shared desire for that institutionalist middle position. Now she needs to persuade him and at least one other person. Finally, Justice Brier is now the leader of the liberal block. Do you see his role being in any way different from Justice Ginsburg's.
Justice Brier is an incredibly thoughtful and also pragmatic justice, So I think that he is someone well suited to now being the the leader of and increasingly of a shrinking liberal wing of the Court. UM he is someone who I think will be trying very hard to find ways to UM try to build or try to assemble that type of institutionalist metal position, in part because that's the way he thinks, I think about the court, and also because he's someone who is going to be trying
to find solutions. Uh. And so I think that he's he's he's able and and a depth and in some ways the sort of um fortuitous person to have in the senior position of the liberal wing of the court, you know, in in in um. In many ways, as your wing gets smaller, uh, the role of the leader
changes also. Right, There's now really just three of them, and I expect that the three of them will recognize that they are more isolated than they were last term, that they have a harder job than they have had at any point in time at which any of them
have been on the court. And that's the type of thing that I would expect draws colleagues together, uh, And that he will be the leader of that of that um component of the court, but that the three of them also, I think, will just be constantly checking in with each other and recognizing, um, how much they are now in a really a shared position trying to articulate a vision of the Constitution and of the law that is much harder for them to prevail on than was
true just a few months ago. That's professor Andrew Crespo of Harvard Law School. As the Supreme Court began its term, it also announced some cases that it rejected in legal speak, cases in which the Court denied Sir serri. One of those cases involved an incident that gain national attention. In t Kim Davis, the former Kentucky clerk who refused to issue marriage licenses to same sex couples because of her religious beliefs, is being sued by two gay couples. Of
Federal Appeals Court rejected her claims of qualified immunity. What's most interesting is not that the Justice is refused to hear Davis's appeal. That happens to thousands of cases every year. It's the statements made by two of the justice is about gay marriage in rejecting that appeal. Joining me is Steve Sanders, a professor at Indiana University's Maras School of Law. Steve first tell us what the basis of the lawsuits
against Davis is. So we all remember, in the wake of the Supreme Courts of Bergothell decision, there was this drama where you had a county clerk in Kentucky who refused to issue marriage licenses uh to gay couples because she said it was a violation of her personal religious beliefs. And so this lawsuit has been through various iterations in in the federal courts, but basically what it boils down
to is that the couples are seeking damages. They are they are saying that, um, they were injured, that their constitutional rights were violated by the fact the clerk refused to give them a marriage license, and so they're actually, uh, there's no injunctive relief that they can seek any longer, because of course, you know, they're married and marriage equality is now the law. But they're saying that, um, you know, a government official violated our constitutional rights and that is
actionable for damages. Jim Davis's defense is that she was entitled to qualified immunity. More commonly, we've heard it recently used by police officers. Explain what her defense is there?
Sure they the rule of qualified immunity is something the Supreme Court has developed in order to balance the idea that, yes, when people have their constitutional rights violated, they should be entitled to compass station for those uh, for those damages, for those injured, rights for the emotional distress and other things that they suffer, which are real and compensable injuries
that are long recognized in the law. But qualified immunity says that needs to be balanced with the idea that we don't want to hold a government actor personally aliable, personally accountable unless they were not acting in good faith, and you know, unless the law that they violated was
clearly established that they didn't make a reasonable mistake. And so often what we see in these police cases is courts will say, well, that particular kind of excessive use of force that the police are alleged to have used that had not been clearly established previously as a violation of the Fourth Amendment rule against excessive use of force, and so we're going to get the police officer a pass. Here.
By contrast, the couples argue, Look, the Supreme Court decided the Berga Fell case quite clearly um At that point, the rule of marriage equality became clearly established law. It became clearly established that states and their functionaries like Kim Davis could not deny the constitutional right to marry to same sex couples and and so that's where we are right now. The Sixth Circuit, the Federal Court of Appeals for that that covers Kentucky, said that the suit may
proceed now. It hasn't been to trial yet, but it says the plaintiffs have stated a claim and Kim Davis does not have immunity to prevent that case from going forward because she is alleged to have violated a right that was not in a gray area that was not yet undecided. Um, it was clearly established the right to marry. Is she also being sued in her official capacity as clerk. So it gets slightly complicated because it gets into the difference of whether she is acting as a county official
or as a state official. UM. On its surface, it would seem as though she's a county official. She's a county clerk. She's elected by the citizens of the county. Her salary is paid by the county. But what the Federal Court of Appeals said in issuing marriage licenses, she is acting as a state official. She is she is exercising power that she has under state law. It is state law that regulates marriage licenses. So that being the case, she can't be sued for damages in her official capacity.
Because states have sovereign immunity from lawsuits or damages. UM, most state employees and state government actors, when they're sued for constitutional violations, must be sued in their individual capacity. That gets around the state's sovereign immunity, the sort of ancient protection that states have against being sued. Now that ends up not being terribly consequential because although technically she
is being sued individually, she is personally on the hook. Um. It's almost always the case, and I assume it's the case here that she is indemnified and defended by um, the government lawyers. The government voluntarily makes the decision to indemnify and defend its employees, and so UM. This gets into a bit of a technicality that has uh kind of lurks in constitutional law, where you can't sue a state or a state official in their own in the
state's name for damages. You have to sue them individually. Steve, do we know why the court turned down Davis's appeal? Well, no, we never really know for sure. So the Court of Appeals has said she does not have qualified immunity. She must face this lawsuit as a defendant. Going forward, a trial may take place, and in the end she may or may not be accountable for damages to the gay couple.
She and her lawyers from a group called Liberty Counsel, which is really, I think to be candid among the most our right conservative religious liberty organizations that exist right now. She sought to have the Supreme Court review that qualified immunity determination, and the Supreme Court denied it. In the parlance they denied, Sir serrari, the Supreme Court rejects the
vast majority of certain petitions that it received. So, as you say, we don't necessarily know why the court denied this, I mean, presumably they simply think this does not present a substantial question, or they do not think that there is a strong enough risk that the lower court aired here that four justices, which is what it takes to grant a certain petition, decided that it was worth the
court's attention. Justice Thomas agree with the decision itself, but he wrote a scathing statement in which he can damn the O. Burger failed decision which legalized gay marriage and the Court's alteration of the Constitution. How unusual is a statement, This is a little unusual. In the vast majority of times the Supreme Court denies a petition for sir Gerar. You just get a one sentence order petition denied, and none of the justices speak to it. The Court doesn't
explain itself. It just has decided not to hear that case. And if justices do speak, it's usually because they're dissenting from the decision. They believe the Court should have heard the case. This was not a dissent, it was merely labeled as a statement. So Justice Thomas, joined by Justice Alito, basically says, look, I agree we shouldn't hear this case. You know, we shouldn't take up this issue of qualified immunity.
But now let me get something off my chest. You know, I predicted five years ago that the Oberger Felt decision would cause a lot of harm to religious liberty, that states should have been allowed to resolve the through legislation, not through a court decision, because they could craft religious accommodations. He refers to it as the court's alteration of the Constitution, which is tendentious language. I mean, the Court interpreted the Constitution.
When you don't like the result, you say the Court has altered the Constitution. So again it's sort of Justice Thomas, joined by Justice Alito, seemed to think he had to get this off his chest. You know, everything I predicted about the harmful religious liberty consequences of obergh Fell had come through. Nonetheless, in the end, I agree we shouldn't hear this petition that Kim Davis should have to go to trial and potentially faced damages. So what can you
read into this about the future of gay marriage? What I read into this is that the fact that only two justices he issued this statement. I interpret the fact that the Court's other three current conservative Chief Justice Roberts, who voted against the oberg a Fell decision, plus Justice core Such and Justice Kavanaugh didn't join this statement as a strong signal that a majority of the Court going forward has no appetite to revisit the core holding of
the oberg a Fell decision. This is really Justice Thomas and Justice Alito fighting the last war, and they have not gotten anyone else to join them. Even though if we were deciding to question today for the first time, some of the Court's conservatives might feel the same way. We know how Justice Roberts felt back in he voted against the olberg A Felt decision. Nonetheless, it's law. Tens of thousands of people are getting married, have gotten married.
They've relied on the decision. I take the fact that Thomas and Alito alone issued this statement as a strong indication that the other conservatives on the Court, not to mention, the more liberal justices, have no appetite for relitigating the basic soundness of the oberg A Fell marriage equality decision. Do you read from this that Thomas and Alito, if they could, if they had the votes, would reverse A
Burger Felt. It certainly seems that way. I think that's a fair implication, because again, for them, the consequences of the decision for religious liberties seemed to be paramount. Couple that with their basic view that this is a question that should be resolved through the democratic process, through state by state legislation, not by a court decree. So I think it is a fair indication that if the issue were teed up somehow again for the Court's decision, they
would overturn O Burga Felt. But again, that's two justices out of nine, and I just don't foresee any reasonable possibility that this is going to come back to the quarter. If it did that, you would find a majority of the Court willing to relitigate this question. Thanks Steve. That Steve Sanders of Indiana University's Mars School of Law. Coming up next on the Bloomberg Law Show. With a new conservative justice on the court, the liberal justices will be
looking for new alliances. I'm June graw So, and you're listening to Bloomberg