Supreme Court Special: Previewing 2026 & A Conversation With Anthony Kennedy

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2:52lines. The trial judge may well want to hold a hearing. They have never said this case should never have been brought in the first place. Bloomberg Law with June Grosso from Bloomberg Radio.

3:07Welcome to the Bloomberg Law Show. I'm Nathan Hager filling in for June Grosso. On the show today, we focus on the Supreme Court. We'll hear a portion of a special conversation with retired Supreme Court Justice Anthony Kennedy. He sat down with David Rubenstein earlier this year at the 92nd Street Y in Manhattan to discuss his three decades on the bench, some of his landmark opinions, and more. That's on the way on the Bloomberg Law Show as we focus on the Supreme Court. But before we hear from a member of the court's past, let's spend some time on some of the major cases that are expected to face the high court in the new year.

3:41Joining me for a look at what to expect from the Supreme Court in 2026 is Harold Krent. He's professor of law at the Chicago Kent College of Law. Harold, thanks for being with us. My pleasure. And there's certainly some showstoppers in terms of cases coming up in the next couple of months. No kidding. And I think probably the one case that Wall Street is certainly waiting for a decision on is one that the high court already heard about. Of course, that's on President Trump's emergency tariffs. Should we be expecting a decision on that in the next few weeks, do you think? I don't think it'll be next few weeks.

4:16I think it'll be later in the term, but certainly that's critical. But the other critical case for Wall Street has to do with the discharge of a member of the Fed Reserve Board, Lisa Cook. And even in an argument that was just, you know, had a couple of weeks ago, members of the court suggested that they might deviate from President Trump and say that even though he has the ability to fire heads of independent agencies, he can't fire the head or one of the members of the Fed. So that's still be a great interest to Wall Street as well. Certainly. Let's talk a little bit more about what we learned from those arguments around the possibility of firing independent agency heads.

5:03Do we get some clues there about how the justices could respond to the arguments that are coming up in the Fed Governor Cook case in the next couple of weeks. Yeah, again, two members of the court, Chief Justice Roberts, as well as Justice Kavanaugh, suggested that they had some kind of reticence about following the logic of the argument from the FTC case, the Federal Trade Commission case, and to apply it to the Fed. And I'm not sure that it's a coherent distinction, but it's one that the court is exploring. And I think there may be a majority to say that the Fed, because it has some private members, because of its special role in history, might be segregated.

5:48I mean, the interesting thing is, what else will be segregated from the sweeping ban or sweeping permission for the president to fire at will all members of independent agencies, maybe adjudicative agencies such as the Mayor's Association Protection Board. We don't know, but it looks like the Fed will be one of the exceptions that the court will adhere to. Are you thinking that we're going to hear arguments around the merits of the case, the argument that President Trump and his administration is putting forward here, these allegations of mortgage fraud that they've been using to say that the president does have cause to fire Governor Cook?

6:30I think they will probably not talk in detail about the mortgage fraud issue, but they will talk about whether or not the president needs cause to fire the Cook, Lisa Cook. I don't think they'll get into the question about what constitutes cause, But I could be wrong. Certainly, there's been a lot of people who have been investigated by the Trump administration who have similar issues and they seem to be pretty thin when you push on them. But I don't think they're going to get into that particular issue of what constitutes cause for discharge. If they say that you need cause, I think that will be enough of a statement from the court.

7:08Walk us through some of the arguments that we could hear when it comes to the idea of for cause rationale to fire a Fed official. Do you think we're going to get a clear definition from this case about the bar that's set for the Fed when it comes to cause for firing? Yeah. And, you know, the court has been incredibly vague about what constitutes cause or neglect of duties in all of these cases. So it's never really given a really good blueprint about what kind of reasons a president must articulate before they can discharge someone who's protected from discharge except for cause. You know, that has been adjudicated a lot in employee cases.

7:53So we know cause means some kind of wrongful conduct on the job. So we don't know if in this case with Lisa Cook, this was something that happened way before she was a director of the Fed. I think the fact that it's happened before probably still could be given reason to cause. I mean, you can think about someone who's committed a serious crime before they're appointed and only comes to light afterwards. But the court has not articulated what cause means. And I don't think this will be a vehicle that will see it in terms of the timing of the nature of the misconduct, how serious the misconduct must be, how tight it is to their ability to function the job.

8:34These are all the questions of what cause might constitute. But I think we're going to have to wait another day before we get a court ruling on that issue. And how important is this case when it comes to preservation of Federal Reserve independence? Are we going to get a really clear idea around that? I think we will. And my guess is, again, there'll be a carve out for the Fed and it won't necessarily be coherent. But it's something I think that the the court wants to take a position on. And, you know, the interesting issue is whether they'll give some kind of hint about whether there are other carve outs or whether this general rule, the fact that Congress cannot protect any kind of agency from the president's plenary rule authority, whether that will be the, you know, biting governing rule with only the Fed as a possible exception.

9:30We're speaking with Harold Krent, a professor of constitutional law at the Chicago Kent College of Law. Harold, let's talk about some of the other cases coming before the high court in the next month here. We're expecting arguments around the president's efforts to roll back birthright citizenship. This is an issue that's come before the court on a legal question, but I think this is the first time that the justices are actually going to be weighing in on the order itself. Is that right? Yeah, I mean, the court dealt with birthright citizenship almost 100 years ago or so in the Wong Kim, our case, holding that someone who was born, not a citizen born in this country, could basically obtain birthright citizenship.

10:15I don't think the court's going to deviate from that in this case. I think it will deal with Trump administration a blow. All the lower courts have gone against President Trump on this issue. So I would predict and think it's quite compelling for the court to hold that the executive order redefining citizenship is inconsistent with the words of the 14th Amendment. Well, what's the Trump administration's rationale, its reading on the 14th Amendment? What are the arguments against it? Well, the 14th Amendment reads in pertinent part that all persons born are naturalized in the United States and subject to the jurisdiction of the robber citizens.

10:52It seems plain. It seems to cover anybody who's in the United States and who was born there. What the Trump has redefined it to say that they need to be subject to the lawful jurisdiction of the United States. Somewhere to put lawful in front of jurisdiction to suggest that people who are here illegally cannot get the benefit of this citizenship clause. I mean, that is a plausible argument if it had been written in the 14th Amendment and if it had been interpreted that way in the past. But the Trump administration is going against history as well as the plain language of the 14th Amendment in making its argument.

11:31Now, this isn't the only immigration related case. If you want to argue that birthright citizenship is part of the immigration issue that the high court is going to consider in this term. We're also awaiting arguments on the Trump administration's practice known as asylum metering. Walk us through this, Hal. Yeah, it actually comes from the first Trump administration, where there was a rush at the border. And under the immigration laws, everybody who is at our border can apply for asylum. And then they're guaranteed some kind of hearing, which unfortunately usually takes several years before it materializes.

12:09And people are waiting around for that hearing. So to neutralize that, the first Trump administration undertook this metering policy, which said that if there's too many people at the border, they simply can't apply for asylum. And then the question is whether that rule is consistent with Congress's statute, which says anybody in the United States can apply for asylum. And the argument there is if you're two feet away from the border and you're being held back by agents of the immigration agents, are you therefore not in the United States and therefore cannot apply for asylum? And the lower courts have struck down this policy, but I think it's an open question.

12:53I think the Trump administration might win on the narrow ground that if you're two feet away from the border, you're two feet away from the border and immigration agents can apply force to prevent somebody from applying for asylum. That's just a guess. But I think he's got much Trump administration's a much better chance of succeeding on this than on birthright citizenship. Interesting. We're also awaiting some arguments on a major case when it comes to mail-in ballots. Walk us through what the court's going to be considering here. I'm just sort of astonished by this case. We obviously have had the question of mail-in ballots throughout most of our history as a country.

13:36And you know that for a mail-in ballot, whether it's from overseas or from even the states, they may not arrive in time for Election Day because you can't know when Election Day will – I mean, you can't know when the mail is going to arrive. So the claim here is that when Congress set a particular election day, that it means that all votes must be in on that day to be counted. So we as a one country can know what the result is on that particular day. And so that the 15 states that have mail-in ballots and the 29 states or so that have military mail-in ballots, they have to cut off counting the ballots for any ballot that comes after Election Day.

14:25This is going against history. It's going against sort of practical understanding, but it will have a major impact in the future upon the role of mail-in ballots in our elections. And if the if the court holds that Congress's designation election day precludes mail in ballots, then absent a congressional amendment, the whole notion of mail in ballots from overseas or from the states will have to be altered significantly. And I'm not sure that that's going to be the best for our country. Thanks for walking us through what's going to be a very busy second half of the Supreme Court term heading into 2026.

15:08That's Harold Krent, Professor of Law at the Chicago-Kent College of Law. Up next, we hear a special conversation with retired Supreme Court Justice Anthony Kennedy. You're listening to Bloomberg Law. I'm Nathan Hager, in for June Grosso, and this is Bloomberg.

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18:11And when you're a Sonesta Travel Pass member, staying at Sonesta ES and Simply Suites means earning points toward free nights, upgrades, and more with every eligible stay. Go to Sonesta.com to book your stay and unlock the best rates with Sonesta Travel Pass. Here today, roam tomorrow. Join now at Sonesta.com. Terms and conditions apply. This is Bloomberg Law with June Grosso from Bloomberg Radio. Thanks for listening to the Bloomberg Law Show. I'm Nathan Hager in for June Grosso. Today's show is focused on the Supreme Court. Earlier this year, David Rubenstein got a chance to sit down with someone with decades of experience on the bench, retired Justice Anthony Kennedy.

18:56The two spoke at the 92nd Street Y in Manhattan for an extended conversation that covered everything from some of Kennedy's landmark decisions to his thoughts on the rule of law. Let's listen to a portion of that conversation now, starting with Kennedy's decision to write his memoir, Life, Law and Liberty. I wanted to write about Sacramento, a small town in the 30s, 40s, 50s, 60s. my children grew up in Sacramento but they didn't know about those earlier decades and my grandchildren didn't know Sacramento at all so it seemed to me interesting to me to write about that time in our culture our generation was right after the great generation and the small town there was a courtesy, there was a professionalism that were simply wonderful.

19:54I wanted to write about that. Supreme Court, the first thing many people do is they forget about the psychonopathy. They want to read about the recent cases, so they look. But we wanted to have this for our children and our grandchildren to read. And then, as the writing went on, it seemed to me people were saying that it might be of interest to others. For those people that have not been a justice of the Supreme Court, and you were on the court for 30 years. What's the greatest thrill about being on the court, and what's the biggest downside to being on the court? The biggest thrill is that you have only cases in which the law has been undecided, and you recognize that what you're doing is exploring the law, and you know that after you write what the law is, or what you think it is, there's a whole new vista, a whole new realm to explore, and that's the fascinating part of it.

20:59We only take cases in which other courts have disagreed. In India, the Supreme Court has to take every case, and they have a 50 ,000 case backlog or something, but we select only the cases in which other courts have disagreed. And so that's the fascinating part is that you are on the frontier of the law. And what you write is the beginning of a frontier because there's new things to explore. But those people that aren't familiar how you decide, let's go through the process. You have people who want to appeal to the Supreme Court. They have something called a writ of certiorari. And you accept about, you have to have four justices agreed to accept.

21:42It's called the Rule of Four. You need four justices to grant a petition for certiorari. Petition for certiorari is a motion to please take our case. And the court has thousands of petitions of certiorari each year, but they select only those cases where the courts are in conflict and where we think the guidance of the court will be helpful. When the cases are taken, the briefs are submitted by the lawyers. Do you talk to each other, the justice, before you actually hear oral arguments? Or you just read the briefs and then you go to the oral argument and you don't talk to each other before you actually hear the oral argument?

22:26We're very careful not to talk to each other before, in part just in fairness to the lawyers. And we don't want cliques where you and I agree or you and I disagree and I don't tell you what I've talked to the other justice. We don't do that. After you hear the oral arguments, you go back to a conference and you have an airtight room so nobody can listen to what you're saying and so forth. And nobody is allowed in the room other than the justices. Right. And we have a double door just to remind everybody that what goes on in there is absolutely private forever. So then you begin to say what your views are and who decides to speak first, who gets to speak first and who speaks last.

23:05The chief justice speaks first. The next most senior justice, senior because he or she has been there the longest. Seniority is not by age, but how long you've been around. If you're the most junior and it's four to four, it's very exciting because everybody is listening to what you're going to say. So who decides who writes the opinions? Who decides that?

23:32let's assume there's a majority and a dissent. Sometimes they're unanimous. They're a lot more unanimous opinions than most people think. The senior justice in the majority assigns the majority, and the senior justice in the dissent assigns the dissent. Does any justice ever go down to another justice's chambers and say, you know what, I really don't like your opinion, but I'll support you if you support me on another case? Do you ever do that kind of horse trading? No, that would be totally improper. Might even be illegal. You never trade votes, ever. Nothing improper or illegal in Washington would ever happen, right?

24:11Plus, we don't go to the other chambers. We send it by memo. But everybody gets a copy of that memo. So the justices read the memos. They may change their mind and opinions. But more times when you were on the court, you were the five to four in the majority than anybody else, I think. That's right. So when you're five to four in the majority and you're making the real decisions because you're the deciding vote, does that put a special burden on you to really make sure you're comfortable with the decision? You want the views of your other colleagues to indicate that you're going in the right direction or the wrong direction.

24:50And there's a lot of interchange in the memos that way. and that's how we try to put a majority together. Sometimes you're assigned a majority opinion and you'll get a memo, Dear Tony, I've read your draft opinion. It seems to me better to wait to read the dissent. Oh, that's going to go on. Or sometimes you write a dissent and say, you're on the other way around, you convince other people. Let's talk about Bush v. Gore. You wrote the per curiam opinion, which meant that it's for the whole court. You didn't put your name on it. Was that a very difficult decision for the court to get involved in the case and then make the decision that would decide the election?

25:32A, not a difficult decision at all. Seven of us agree with you to take it. Can you have a state court decide who's going to be the president of the United States and say, well, we're too busy to take it? Gore bought the case, not Bush. Gore bought the case. And the rule is that if you're unsuccessful in the lower court, and you come to the Supreme Court, you're the so-called petitioner, and your name is first. So it was Bush who bought the case in the Supreme Court, so it was called Bush versus Gore, but Gore was the one who started the case. Seven of us agreed that we should take the case.

26:09And more than a majority, six or seven, agreed that there was a legal wrong. The question was how to remedy the legal wrong. And that was five to four. Ultimately, five to four. The five people who were for Bush were Republican appointees. The four who were for Gore were the Democratic appointees. Some people said that showed the court was really political. How do you respond to that? To begin with, that's wrong. Souter and Stevens were both Republican appointees. OK. All right. So you don't think the court was hurt by the perception that it was a political decision? Yeah, the courts always hurt, it seems to me, if we look political.

26:50One of my concerns, my present-day concerns, is there's too much partisanship. Presidents appoint justices from their same party. But the partisanship should not be an overriding factor. What you look at is temperament, learning, background, reputation, whether or not you have those qualities of independence and caution that make for a good judge. And the partisanship is overemphasized in the Senate during the nomination process. They should not emphasize it so much. So you will be always remembered for, among other things, the decision you wrote to legalize gay marriage. Yes. And was that a difficult decision for you to come to?