Behind the SCOTUS Curtain & Chevron Gets the Win, Louisiana Gets the Loss

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1:53Learn more at thehartford.com slash risk mitigation. This is Bloomberg Law with June Grosso from Bloomberg Radio. Chief Justice John Roberts has long cultivated an image of the Supreme Court as an institution above politics. nine justices who reached their decisions based on the law alone. And you need to understand, well, it's because the framers didn't want the courts to be making political decisions. Quite the contrary. But the New York Times has published leaked confidential memos between the justices, and they reveal a different side of Roberts. Certainly not the umpire calling balls and strikes as he described in his confirmation hearings.

2:41The memos show a chief justice, who pushed to block President Obama's signature environmental policy, in five days, without oral arguments, without full briefing, and without input from the lower courts, because he said it was, quote, the most expensive regulation ever imposed on the power sector. And on February 9th of 2016, in a 5-4 vote along partisan lines, The justices issued a one-paragraph ruling halting Obama's clean power plan. Was that the start of the now highly controversial shadow docket? Joining me is an expert in constitutional law, Harold Krent, a professor at the Chicago-Kent College of Law.

3:28House of the New York Times has published these until now secret memos about the five days before the Supreme Court issued an order blocking President Obama's clean power plant. Tell us what happened. So the court never blocked the power plant on the merits, but rather used its power to decide to stop the action before they could even hear the case. And so they deployed their power to basically protect individuals in the United States from what they saw as overreaching by the Obama administration. So this is an overtly political move because they didn't like the power plan and the memos evince the fact that they thought that this was excessive power, that there shouldn't be this much of a drain on the economy in order to protect the environment.

4:23And so, you know, the way it reads is that the Supreme Court was overtly political in deciding to resolve this case, not on the merits, but rather simply on the basis of its emergency docket, thereby stopping the plan before it could be effectuated. So this was pushed through in five days, and some of the justices were in Europe. So it was all done by exchanging memos. And from your reading of those memos, did it seem like the chief justice was the one really pushing it through? And what astonishes me is that we know that for years the chief judges stood and said, integrity of the court is my mission.

5:09This is the most important thing to me. So we have stature. Yet it was the chief who decided to use the power of the Supreme Court to try to attain his political ends. So this to me is what is so amazing is that while the chief seemed to have this public persona of respect and integrity of the court, he was the one that instigated the unorthodox, untraditional use of the court in order to accomplish a political result. Did it seem as if some of the justices didn't recognize the importance of what was happening here? In retrospect, I think we can all tell this is the start of the aggressive use by the robber's court of the shadow docket.

5:51But the justices at the time didn't know that. They thought maybe this was a one-off. The court was not in session. They were in various places around the world. And so they could have said this is a one-off, a unique response that wouldn't create any kind of precedent. That's what it seemed to me from reading the memos. Obviously, now with the lens of history, we look back and say we can see a linear progression of the use of the court's power for various political ends has become much more common. But at that time, it was rare. And I don't think that justices realized what a precedent this could create.

6:27So the chief justice said that this was the most expensive regulation ever imposed on the power sector. Too big, costly and consequential for the court not to act immediately. Yet no justice, not a liberal, not a conservative, ever mentioned the dangers on the opposite side of climate change. There's no discussion of climate change. There was no discussion of letting the challenges to the regulation play out in court. This wasn't a discussion of the usual legality of an administrative action. This was a political reaction to the Obama administration saying this is too extensive, too much, and no consideration of the equities on the other side.

7:12It's astonishing. The irony. So Justice Kennedy figures that, you know, well, when we take this on the merits docket, it's going to end up being struck down anyway. But then Justice Scalia passed away. And so it would have been 4-4, right? Right. And so Obama's power plan would have gone into effect. Likely. Obviously, we don't know because we're deprived of that knowledge because of how history played out. The other thing that's amazing about this is why the leak now? You know, is this a leak from clerks who have reported this material for 10 years? Is this a leak from the Supreme Court justice that's more and more frustrated with how the court is acting?

7:54We don't know, but it certainly suggests that tensions are aflame within the Supreme Court building. Well, we've seen that with the various justices. I mean, we saw Sotomayor criticizing Kavanaugh and then coming out with an apology. And we'll talk later about Clarence Thomas. And we saw Justice Ketanji Brown-Jackson give an hour-long speech at Yale Law School, which basically, you know, took the shadow docket apart. art. So it's pretty much out in the open. Yeah. And this idea of the friendship between RBG and Justice Scalia is a thing of the distant past. And obviously, these justices don't like each other.

8:37They're sniping at each other. And now they're arguably possibly making leaks to the Supreme Court. So we don't have a very unified or collegial court. I've asked you often in the past, How much are the justices influenced by public discussions of the issues, public discourse? And here they're relying on outside sources like a blog post and television interviews to push their points. You know, again, we try to teach our students, you know, the Supreme Court justices consider, they deliberate, they're influenced by their predecessors, they try to understand the integrity of the legal process. And then we're confronted by these memos, the disparate memos that seem to suggest, oh, it's all about politics and our knee-jerk reaction to what we think is dangerous for politics.

9:29So they're acting as politicians. So what then differentiates the court from the other institutions is getting a little muddier here. And I think that's the real downside of what they've done is to sap the Supreme Court of the respect that it should otherwise deserve in our system. system. Yeah. And how many times have we heard the chief justice talk about the Supreme Court is not a political institution, we're different from the political branches, and here it's all about politics? It is. And again, I can understand why people are disillusioned, because if the court is thinking about politics, you know, what gives them the advantage as opposed to those in Congress?

10:13Was this in any sense President Obama versus Chief Justice Roberts? Because, I mean, Obama was one of just 22 senators who voted against Roberts' confirmation. And here it seems like the Chief Justice is eager to assert the authority of the Supreme Court against Obama. I don't know how much of this is reaction to the friction between Chief Justice Roberts and President Obama. I think it's more about President Obama's policies that he just thought that the Democrat was wrongheaded in trying to sort of quickly change the ground in terms of climate change and limiting pollution and saw his responsibility as a court to do something about the rapid change that was at play within the Environmental Protection Agency.

11:11Do you think that there'll be any fallout from this publication of these notes? Well, we saw that the first Dobbs decision, if you remember, was released by someone, and we knew what the Dobbs decision was going to say, overruling their right to an abortion. And there was tighter security was imposed, but nothing really happened. This is a, again, We don't know if the leak is from now or from 10 years ago. There may be some more security, but I think now in this age, there won't be too many more steps that can be undertaken by the court to prevent this kind of leaking. But the leaking isn't good for the court.

11:49Clearly, this is a court that has lost its civility, but also its ability to be collegial. And also, I'm wondering if since now we have this huge leak, you mentioned the leak before, whether the justices will be more reluctant to put things into writing that can be leaked. Oh, absolutely. I think that if you know that your rough draft and your comments, Snyder or otherwise, may end up in the New York Times, you're going to think twice before you write that down. And that's also not good for the court, right? Sometimes it's really important to have a sharply worded memo, some kind of comments about the wisdom of a particular argument that another justices may write, and the justices will be more restrained in showing candor for fear of the disclosure.

12:37Okay, stay with me, Hal. Coming up next, we're going to talk about a speech by Justice Clarence Thomas last week that was supposed to commemorate the 250th anniversary of the Declaration of Independence. It started out that way and then devolved into a harsh critique of progressivism. I'm June Grosso, and you're listening to Bloomberg.

13:28by Goldman Sachs Bank USA, Salt Lake City Branch. Terms and more at applecard.com. The thing about AI for business, it may not automatically fit the way your business works. At IBM, we've seen this firsthand. But by embedding AI across HR, IT, and procurement processes, we've reduced costs by millions, slash repetitive tasks, and freed thousands of hours for strategic work. Now we're helping companies get smarter by putting AI where it actually pays off. deep in the work that moves the business. Let's create smarter business. IBM. Support for the show comes from Public. Lately, it feels like there are two types of investing platforms.

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14:44That's public.com slash market. Ad paid for by Public Holdings. Brokered services by Public Investing, member FINRA SIPC. Advisory services by Public Advisors, SEC Registered Advisor. Crypto services by ZeroHash. All investing involves risk of loss. See complete disclosures at public.com slash disclosures. This year marks the 250th anniversary of our nation's independence. And last Wednesday, Justice Clarence Thomas gave an hour-long speech at the University of Texas at Austin Law School to talk about the Declaration of Independence and its importance in American history. But the speech devolved into a harsh critique of progressivism.

15:28Progressivism seeks to replace the basic premises of the Declaration of Independence, and hence our form of government. It holds that our rights and our dignities come not from God, but from government. It requires of the people a subservience and weakness incompatible with a Constitution premised on the transcendent origin of our rights. I've been talking to Professor Harold Krent of the Chicago-Kent College of Law. How this was a very strange speech. Thomas said that Stalin, Hitler, Mussolini, and Mao were all intertwined with the rise of progressivism, as was racial segregation, eugenics, and other evils.

16:16I do think there's a tie here with what Justice Thomas' speech, his strange speech at Texas, because both with respect to the Roberts decision and with respect to Thomas, there is such a deep-seated hatred for the administrative state. You know, and Justice Thomas calls it progressivism. He says that it didn't start with President Wilson, but he claims it did. But nonetheless, what he's talking about is this idea of these experts in government, and both Chief Justice Roberts and Justice Thomas sort of evince a real distrust for anybody who believes in bureaucratic government, anybody who relies upon the government to actually respond to our nation's woes and to try to help the country.

17:08And then it devolved into blaming progressives for all the ills of society. I mean, he said that Stalin, Hitler, Mussolini and Mao were all intertwined with the rise of progressivism, as was racial segregation, eugenics and other evils. I mean, it's frightening that a Supreme Court justice would say this. And that's the first thing to note, because there are so many things that are wrong with the comment, even about Wilson and progressivism, let alone about Mao and Hitler and the others. because what happened with totalitarianism, they don't trust bureaucrats either. They trust only themselves.

17:51And we know about that from our own current existence in the United States, right? It's not that President Trump is relying upon bureaucrats. He relies upon himself. And that's the same thing true with the world figures listed by Justice Thomas. So this was a screed. It's a discreet, divorced of any kind of real salience in terms of how the world is ordered and what motivated these national leaders. So it's worrisome from a Supreme Court justice in particular that they would be so divorced from any kind of measured assessment of the role of progressivism in our country. I think a lot of people would say a lot of good came from progressivism in our country, even if there was some negative aspects as well.

18:39But one has to wonder. It sort of echoes the way he interprets history in his opinions, picking and choosing from what he wants, and which often, in my mind, leads to a tortured view of history. And as you mentioned, here he did it with President Wilson and progressivism. Again, progressivism started in the late 19th century. Its reaction against robber barons and against the huge corporations that dominated the United States at that time. And so it was a reform movement. Now, obviously, today in the Supreme Court, there's a lot of skepticism about entrenched bureaucracy and whether the administrative agencies can do good or bad for people and for companies.

19:23But, you know, again, progressivism was a constraint upon large corporations. And many people think that administrative agencies need to continue that kind of regulation in order to prevent sort of rapacious organizations from hurting individuals in this country, whether farmers or small business folks, etc., etc. This is, you know, beyond his speech, but I've always wondered how Justice Thomas, who was the beneficiary of affirmative action, as was Justice Sotomayor, why is he so conservative? I mean, as far right as you can get. Yeah, no, I think part of it is Justice Thomas has always been proud of what he's done to succeed in this environment.

20:11And he doesn't want to be seen as a product of affirmative action. He wants it to be based upon his own merit. And he has accomplished a great deal in his career. There's no question about it. But I think that his some of his visceral reaction opposing affirmative action is just because of the fact that he doesn't think anybody should be a sort of assumed to be an affirmative action baby, but rather they want to be seen as pulling their own weight as rising because of their own hard work and intelligence. And certainly he's evinced those in his career. I'd have another comment. I think that, you know, you wonder with a speech like this, whether Justice Thomas knows that he has one year left on the court if he wants to give President Trump another nomination.

20:59And I think Justice Alito would be in the same vein, and they are considering and playing in their own minds their own individual interests in staying on the court, but their political interests of allowing President Trump to have one or two more Supreme Court nominees before the end of the term. So we may be seeing this kind of behavior and this kind of speech because he's sort of wrestling with himself about what is the right thing to do in terms of his political leanings. I want to turn back to the shadow docket where we started. We've seen many of the liberal justices criticize what's happening with the shadow docket in their opinions, but also lately a lot in public.

21:41There was an hour-long speech by Justice Ketanji Brown-Jackson at Yale where she really took it apart. And now we have these leaked memos. With all this sunlight on the shadow docket, do you think that we'll see less, that the Supreme Court will act more judiciously, shall we say, with shadow docket decisions? For example, they've turned some of them into regular cases like the birthright citizenship. Yeah, I think that Justice Jackson's speech in particular really shed light on something that only some professors have been talking about for years. What are the proper standards to use in terms of the stay motions that go before the Supreme Court?

22:25How do you balance equities when there's no time for a full briefing on the matter? And I think that the public discussion that has followed those kinds of events is only for good. And I think it will at least modify to some extent shadow docket with the hope of taking away the shadow, making things more observable and transparent so that people understand what the court can do. and that the traditional sort of idea of balance of the equities and the merits can be seen as something every judge has to do, whether you're on a preliminary injunction in the trial court or whether you're in the Supreme Court deciding what to do when you're presented with an emergency stay.

23:05So I don't think there's going to be a quick change, but I think that the public discussion and the backlash to what the New York Times has published will conceivably require the court to act in a more principled, consistent manner. And that's good for all of us. And also, there's the fact that the lower courts are confused themselves about a shadow docket opinion. What part of it is precedent, binding Supreme Court precedent that they have to follow? And Justice Gorsett said, you have to follow our shadow docket decision just like any other decision. But, you know, when there's no explanation of what it's based on, the lower courts are left wondering and not knowing what to apply, really.

23:50I was shocked by Justice Gorsuch's comment. I mean, how can anybody follow the shadow docket as a precedent when there's been no argument, when the court is not being clear about its view of the merits? It's really, I think, irresponsible for Justice Gorsuch to make that claim. But again, you understand it because the The court is trying to change people's minds and change lower court decisions through the shadow docket. And that's just not appropriate. That's why we have transparency, oral arguments, written decisions, so that people can really focus and know when a court's decision is binding and when it's not.

24:27Justice Sotomayor, a couple of weeks ago, the attention was focused on what she said about Kavanaugh. But she also said about the shadow docket, she sort of said what you just said, which is we brought it upon ourselves. And what Justice Jackson said, because they've been granting these. And so the more wins, the more emergency petitions you're going to have. So she said we brought it on ourselves. You know, the court certainly has. It's basically it was so extraordinary for the court to issue any kind of decision that wasn't on the merits before the last 10 years. And but the signal that the court has given is come.

25:11If you're really upset, come to us. And if we happen to agree with you politically, we may enter the fray even before we can have a full decision. Now, obviously, in terms of an emergency, the court has granted certiorari before judgment, but that's to consider a case on the merits, not to engage in this sort of slapdash decision denying or approving of a stay for reasons that are unarticulated. That's new. That was started by, I gather, by the power plant decision of 2016. And we are here and we've seen that custom continue. and it's just not good for transparency. It's not good for respect for the court.

25:52And I hope that the court will be pushed to sort of revise its policies and be a little more consistent with which kind of equity principles should demand a stay and which should not. Otherwise, and I'm sure the chief thinks about his legacy a great deal. Otherwise, the Roberts court will be known as the court that the shadow docket developed under. And that's not something I think that any justice would want. They brought it on themselves. And the chief justice, again, the irony being the one who cared most about the reputation and the stature of the court. And he's the one that led the court down this path.

26:33Amazing. This is in the category of you can't make these things up. Thanks so much, Al. It's always great to have you on. That's Professor Harold Krent of the Chicago-Kent College of Law. Coming up next on the Bloomberg Law Show, the Supreme Court has handed Chevron a victory, but Louisiana and the environment a loss. I'm June Grosso, and you're listening to Bloomberg. The thing about AI for business, it may not automatically fit the way your business works. At IBM, we've seen this firsthand. But by embedding AI across HR, IT, and procurement processes, we've reduced costs by millions, slash repetitive tasks, and freed thousands of hours for strategic work.

27:17Now we're helping companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business, IBM. Support for the show comes from Public. Public is an investing platform that offers access to stocks, options, bonds, and crypto. And they've also integrated AI with tools that can assist investors in building customized portfolios. One of these tools is called Generated Assets. It allows you to turn your ideas into investable indexes. So let's say you're interested in something specific like biotech companies with high R &D spend, small cap stocks with improving operating margins, or the S &P 500 minus high debt companies.

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28:34All investing involves risk of loss. See complete disclosures at public.com slash disclosures. You need to make a huge presentation in an hour. Adobe Acrobat uses AI to take all your documents and generate a presentation with a single click. Build slides quickly and streamline the process. Need a last minute pitch deck? Do that with Acrobat. Need to level up your presentation design? Do that with Acrobat. You have 30-plus documents that need to be simplified into a proposal. Do that. Do that. Do that with Acrobat. Learn more at adobe.com slash do that with Acrobat. This is Bloomberg Law with June Grosso from Bloomberg Radio.