Weekend Law: Who Won SCOTUS Term & Felony Vandalism

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1:35Marisa Darden:Policies provided by Hartford Fire Insurance Company and its property and casualty affiliates, Hartford, Connecticut. This is Bloomberg Law with June Grosso from Bloomberg Radio. It was a Supreme Court term in which the conservative supermajority transformed the law in several significant ways. Expanding presidential power, dismantling landmark civil rights legislation, enhancing gun rights, and eliminating campaign spending restrictions while overturning decades-old precedent and undercutting laws passed by Congress. The Republican-appointed justices certainly didn't act with the judicial restraint that Chief Justice John Roberts famously professed to during his confirmation hearings.

2:26Marisa Darden:Judges are like umpires. Umpires don't make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ballgame to see the umpire. judges have to have the humility to recognize that they operate within a system of precedent. It was also a term where the ideological differences on the court were never more apparent. Nearly a quarter of the decisions were six to three, with the Republican appointees in the majority and the Democratic appointees in dissent. My guest is constitutional law expert Michael Dorff, a professor at Cornell Law School.

3:09Mike, let's start with presidential power. The The court blocked Trump's tariffs, rejected his attempt to end birthright citizenship, and prevented the immediate firing of a Federal Reserve governor. But the court gave Trump and future presidents greater control over federal agencies, allowing them to fire top federal regulators. And in the immigration area, the court allowed Trump to pursue his aggressive immigration agenda in just about every case. So on the whole, did Trump win or lose this term? I think that you have to say he won because in the cases in which he lost, his position was so extreme that even getting the Supreme Court to divide on the issue was kind of a victory.

3:59It moved the Overton window to the right or in this case to the direction of greater executive power. So, you know, in Cook, for example, that's the case with the Federal Reserve governor. He gets most of the conservatives to sign on to his position that what he did was enough under the statute to fire a member of the Fed. And that effectively, if that position had prevailed, would have given him control of the Federal Reserve. He came very close to getting that. Likewise, with respect to birthright citizenship, which, you know, nobody was even talking about as part of what we thought was reasonably contestable prior to the president's executive order there.

4:41He gets, you know, a 90-page dissent by Clarence Thomas. He gets Justice Alito, Justice Gorsuch to propose various alternatives, all of which take seriously this theory that most serious historians say is based on, you know, chewing gum and old newspapers that are sort of cobbled together from out-of-context quotes from the Reconstruction era. And yet he almost wins there. And then when you look at the wins, the wins are huge, right? So in the Slaughter case, which is he gets to fire members of the Federal Trade Commission, court overrules a 90-year-old precedent in Humphrey's executor. And this gives him nearly complete control of what were formerly independent agencies.

5:31There's this tiny carve out for the Fed in the Cook case, but it looks like that carve out is going to be available only there and maybe with respect to non Article three judges. But it also suggests even further sweeping presidential power. So, for example, the dissent points out that the majority's rationale for upholding the president's power to fire people at will would seem to apply to civil servants as well, not just heads of agencies. So I think the civil service is potentially in the firing line next. And even in the extreme cases like birthright citizenship and the tariffs, two of the most conservative Supreme Court justices, Clarence Thomas and Samuel Alito, always found reasons to side with Trump.

6:21Would you say exemplifying the real split in the court? You might say, well, you know, in all those cases, Sotomayor Kagan and Jackson vote against Trump. You know, that is true. That is to say that this is an ideologically divided court. I think the best way to think of it is that it's a court that has sort of three and a half center right judges. It's got two and a half extreme right judges and then three liberal justices, including Justice Gorsuch in the sometimes centrist, sometimes on the extreme right. Because that's how he votes, except in cases involving Native Americans, in which he's the most liberal justice in the history of the Supreme Court.

7:02And, you know, that's just where they are. What's striking, I think, is that for the most part, with a few exceptions for Justice Thomas on cases of relatively low salience, right, for the most part, the ideological divides are also partisan divides. So the place where I think this is most apparent is in Louisiana against Calais, which is the Voting Rights Act case. Even though it's not technically about executive power, we know that it was going to be and has been leverage for redistricting for partisan ends by Republicans, which was a top priority and continues to be a top priority of President Trump.

7:48And there, what's, I think, very revealing is how utterly closely the sort of conservative ideological position aligns with the Republican partisan position. So, you know, the conservative ideological position is government shouldn't use race as a criterion for anything. Constitution is colorblind. In Louisiana against Calais, what the court says is, well, political gerrymandering is fine. Therefore, we're not going to find any kind of race discrimination against minority voters sufficient to create a majority minority district. And the result will be we're going to empower Republican controlled state legislatures to engage in political gerrymandering that is also de facto racial gerrymandering.

8:38So you can now have your ideological cake and eat your politically partisan cake as well. I mean, it's been said that dismantling the Voting Rights Act is something that has been on the chief's agenda, let's say, since he was a lawyer in the Reagan administration. We saw the first strike against the Voting Rights Act in the Shelby County versus Holder case back in 2013. Right. So you can think of it as a one-two punch. So in Shelby County against Holder, they said that the coverage formula of which areas were subject to preclearance was unconstitutional. And so that eliminated the executive branch as the enforcer of the Voting Rights Act.

9:21What they did in the Calais case this term was to say that the threshold for finding that there has been improper use of race is so high because it's so hard to distinguish in their view between racial and political gerrymandering that effectively now you've taken the judiciary out of the picture. What's left, I think, since you can no longer say that disparate impact is sufficient, what's left is to say that if state legislators are stupid enough to expressly say we are gerrymandering here because we have racial animus, well, then that's a violation of the Voting Rights Act. And that just seems extraordinarily unlikely.

10:07Democrats did have a rare win when the court upheld Mississippi's right to count ballots that are received after Election Day as long as they're postmarked by Election Day. And that was a five to four vote with the chief and Justice Amy Coney Barrett joining the liberals. Were you surprised by that decision? I wasn't terribly surprised, partly because although this has been a priority of President Trump, right, to go after mail-in ballots, it hasn't been a priority of the Republican Party because it doesn't actually benefit the Republican Party as such. The parties both take advantage of mail-in voting.

10:51I mean, the fact that it was Mississippi tells you something. Mississippi is a deep red state, but they're the ones who are defending their particular timing rules. The other problem for the argument against this is that if you take it literally, then what about the fact that there's early voting in a lot of states? It would really have been extremely disruptive of the way that many states, both red and blue, conduct their elections. And without the clear partisan valence, it didn't surprise me. Turning to campaign finance regulations. In another Republican win, the court struck down federal limits on spending by political parties in coordination with candidates.

11:33That case overturned a 25-year-old precedent and was down ideological lines. You know, you can think of that in the same category of cases going back to Citizens United, where the court is taking a very restrictive view of what Congress can do to regulate campaign finance. And one of the criticisms of Citizens United is that the court was sort of naive about the way in which money affects politics. Saying, well, you know, if someone makes an independent expenditure, that's not going to buy a candidate. But of course, the candidates know that that's going on. Same thing is true here, right? The court says, well, you know, of course, parties are going to coordinate their campaigns with the candidates.

12:22That's true. But that's not what coordination is about. As the dissenters point out in the case, the whole point of this restriction was to prevent circumvention of the limits on giving money to an individual candidate, right? So you can only give, you know, probably about$4 ,000 in the next campaign cycle to a candidate once for the primary and once for the general election. But if you can give, you know, hundreds of thousands of dollars to the party and then have that earmarked for that candidate, well, then you've essentially, here's that word again, gutted the campaign contribution limits with respect to individual candidates.

12:59I think that is the goal of the Roberts court here, frankly. Coming up next on the Bloomberg Law Show, was Trump the winner of the term or was it really conservatives that won? And remember, you can listen to all the latest legal news anytime on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify or wherever you get your favorite podcasts. I'm June Grosso and you're listening to Bloomberg.

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16:06Chief Justice John Roberts has repeatedly stressed the importance of an independent judiciary as a key feature of the U.S. constitutional system. For years, the court has been divided down partisan lines on hot-button issues like abortion, gun rights, LGBTQ rights, immigration. The list goes on. But Roberts continues to insist that judges are not like politicians in robes and that their decisions don't line up with whether they're Democratic or Republican appointees.

16:41Marisa Darden:And the other thing, the notion that we carry forward the views of the people that appointed us is absurd. President George W. Bush appointed me 20 years ago. The idea that I'm carrying out his agenda somehow is absurd. But this term, the court was split down partisan lines in nearly a quarter of the cases, most often involving those hot-button social issues. I've been talking to constitutional law professor Michael Dorff of Cornell Law School. Mike Roberts loves to say that the judiciary is different from the other branches of government. But when you have cases like some of the ones we've been talking about, voting rights cases that set off redistricting in Republican states in the South, campaign finance cases that favor the Republican Party, cases expanding presidential power, right now a Republican president's power, and the Republican appointees are on one side and the Democratic appointees are on the other, I mean, doesn't it paint the court as political?

17:47Yes. And I would add that this is exacerbated by the fact that in recent years, we've had a court in which the most liberal Republican appointee is nonetheless much more conservative than the most conservative Democratic appointee. That wasn't always true. And it wasn't true in a big way in periods that are still within living memory. So certainly during the Warren court, right, the two most influential liberal justices were Earl Warren himself and William Brennan, both of whom were appointed by President Eisenhower, who is a Republican. You know, it wasn't all that long ago that this court still had David Souter, Sandra Day O 'Connor, John Paul Stevens, Anthony Kennedy, all of whom were Republican appointees who, to one degree or another, had a liberal or moderate streak.

18:44It's been a while since we had the last conservative Democrat. That was probably Byron White. But the reason why it's been a while is because there are so few Democratic appointees lately. And so I think that the fact that we have such a partisan court and visibly partisan court is partly to do with greater polarization in our politics. You know, the era when you had moderate to liberal Republicans was an era when you still had New England and Midwestern Republicans who were liberal on a lot of issues. And you had Dixiecrats who were conservative on a lot of issues. And so it wasn't that unusual for a Republican president to appoint a moderate to liberal or a Democratic president to appoint a moderate to conservative.

19:33That just doesn't happen anymore. And so now you're seeing this perfect alignment of ideology and partisan politics. Let's turn to the two Second Amendment cases. And the one where the justices ruled that a marijuana smoker can't be prosecuted for having a gun was actually unanimous. So this is the case where there's this Texas man who admits to using marijuana roughly every other day. And under a federal statute, that's a basis for taking away his firearms and criminally convicting him. And the court unanimously says, oh, come on. You know, but the basis for doing it is in some ways ridiculous.

20:18It's this test that they announced in the Bruin case a few years ago, which says that in order for a regulation of firearms to be valid, it has to be analogous to a regulation of firearms either in 1791 when the Second Amendment was adopted or maybe in 1868 when the 14th Amendment was adopted. We're not going to tell you which. And it had to have been the kind of regulation that was widespread at the time, whichever of those times. And so, of course, the government said, well, you know, there were these laws that disarmed habitual drunkards at the founding era. And then there's a debate over how similar or not being a marijuana user is to being a habitual drunkard.

20:58And the court ultimately concludes it's not that similar at all. But that's sort of ridiculous, right? The real question should be, does using marijuana roughly every other day distinguish somebody enough from the average person that they shouldn't be able to have a gun if everybody else can have a gun? And, you know, to their credit, some of the concurring justices, there was a concurrence by Justice Alito joined by Justice Kagan, which is not typical lineup, said, look, you know, people use marijuana now the way that people drink. And it's been decriminalized in, you know, most of the states.

21:30Federal government doesn't enforce. So this doesn't make any sense. So there's a kind of common sense idea there. Now, the other Second Amendment case was a six to three vote down ideological lines where the court strengthened the constitutional right to carry a gun, striking down a Hawaii law. Hawaii has a law that they enacted post-Bruin that says if you are a private property owner, we are going to presume you don't want people coming on your property with firearms unless you explicitly either orally or in writing consent. And this was challenged on the ground that, well, you know, what about a gas station private property owner or a drugstore or a supermarket?

22:13You know, when you apply this presumption, you're going to say that people effectively can't carry their firearms in public. And the back and forth between the majority and the dissent, primarily Justice Jackson in dissent on this point, is over whether this is really a regulation of firearms at all. Justice Jackson says, no, no, no, this is a regulation of property. Everybody agrees that private property owner can say you can't come on to my property with a gun. You can say you can't come on to my private property with a hat if you wanted to. And so, you know, what's the issue here? And the majority says, no, no, this is a regulation of guns in the same way.

22:49And this is a line that Justice Barrett gives in the same way that if the law said we're going to presume that people don't give permission to somebody to come on their property wearing a hijab, that would be religious discrimination. Well, this is a violation of your Second Amendment rights. And that sounds like a pretty good analogy, except that, you know, the First Amendment is a kind of anti-discrimination principle. It can't discriminate on the basis of religion. You can't censor by drawing distinctions based on speech. Second Amendment is mostly not an equality principle. It's a liberty principle.

23:21So I'm not sure how well that fits. But now, you know, this is another category of laws that we know are going to be subject to this second-hand scrutiny. In another high-profile case that was decided down ideological lines, the court allowed states to ban transgender athletes from female teams. I mean, I don't think anyone ever expected that the conservatives were going to vote any which way besides upholding these bans. Well, the reason to have some hope, it was a hope that was dashed, but the reason to have some hope was the fact that in the Bostock case back in 2020, the Supreme Court, in an opinion by Justice Neil Gorsuch, joined by Chief Justice John Roberts and the more liberal justices, said that Title VII, which is the Federal Employment Discrimination Statute, when it forbids sex discrimination, also therefore forbids discrimination on the basis of sexual orientation and transgender status.

24:20And this case arose under both the Equal Protection Clause of the 14th Amendment and Title IX of that same Civil Rights Act. And Title IX is broadly similar to Title VII. So there was at least a prima facie, that is, you know, first instance argument that what's true of Title VII should be true of Title IX. Now, there were reasons to think that, as the court ultimately held, that might not work. Part of it is there's this provision in Title IX, adopted a couple of years after the adoption of Title IX itself, called the Javits Amendment, which allows for sex-segregated athletic teams. There's no parallel allowance in Title VII.

25:01But still, the so-called Bostock analogy was pretty powerful. I should say it turned out not to be that way. Even the liberal justices rejected the statutory claim, although they accepted the equal protection claim. If you're viewing it from a social policy lens, like how far is this court going to go? I think I shared your view going into the case and certainly after the oral argument that there weren't going to be the votes there to say that what the states were doing in these cases was unlawful. But that doesn't mean that the legal argument was so bad. It just means that you look at the justices and you think they're not ready for this.

25:41And, you know, to be fair, the argument for excluding transgender women from women's sports and transgender girls from girls sports is, at least in many cases, stronger than it is for keeping out, you know, someone who's gay or trans from just any job. And so the result was not especially shocking for that reason. So, Mike, what are your broad conclusions about the term? So I want to offer as a foil one alternate way of thinking about the term, right? You might think, and I've seen some versions of this, that on the issues that have been of long-running concern to conservatives, the conservative side won on the voting rights, on Second Amendment rights, on LGBT culture war issues, presidential power, etc.

26:34But on the sort of Trump specific issues, the president didn't do so well. So, you know, tariffs have not been a longstanding position of conservatives. Generally, conservatives have been for free trade prior to Trump. And so he loses on tariffs. Birthright citizenship, not really on the table prior to the president's executive order on his first day of his second term. And so he loses on that. And I think that's sort of right. But I think it's important to understand that the reason he loses is not because there's this rift between the sort of elite legal conservatives and Trump. There might be such a rift between Chief Justice Roberts and Trump.

27:14But, you know, he's getting Thomas and Alito, as you said, in all of these cases. He's getting some combination of Gorsuch, Kavanaugh and Barrett in some of these cases. And so the only reason he's losing in the cases he loses is because all the liberals vote against him. And then, you know, two or occasionally three of the conservatives also vote against him. And on the cases he wins, even when he's winning on traditional conservative issues, right, I think this court is being willfully blind or at best hyperopic, which is the opposite of myopic. They're seeing off in the distance, but not what's in front of them.