We The People

Has the Roberts Court Arrived?

July 09, 2020

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The 2019-2020 Supreme Court term recently ended with a series of blockbuster opinions involving presidential subpoenas, religious liberty, abortion, the Electoral College and more. Supreme Court experts Kate Shaw of Cardozo Law School and Ilya Shapiro of the Cato Institute join host Jeffrey Rosen to recap those opinions and more. They also weigh in on Chief Justice Roberts’ efforts to put the institutional legitimacy of the Court front and center in this historic term.

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PARTICIPANTS

Kate Shaw is Professor of Law and the Co-Director of the Floersheimer Center for Constitutional Democracy at Cardozo Law School. She’s also a contributor with ABC News, and a co-host of the Supreme Court podcast Strict Scrutiny.

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review. He’s the author of the forthcoming book Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court.

Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.

ADDITIONAL RESOURCES

This episode was engineered by the National Constitution Center's AV team and Jackie McDermott, and produced by Jackie McDermott. Research was provided by Lana Ulrich and the constitutional content team.

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TRANSCRIPT

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center. And welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan, nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people.

The Supreme Court term has just ended with a series of blockbuster opinions involving presidential subpoenas, religious liberty, abortion, the electoral college and more, this is the term in which Chief Justice John Roberts put the institutional legitimacy of the court front and center leading some observers to call him the most powerful chief since Charles Evans Hughes in 1937.

On today's episode, we will recap the Supreme Court's historic opinions, and look back at this unique term. With two of America's leading experts on the Supreme Court. We're so honored to have both of them. Kate Shaw is Professor of Law and Co-Director of the Floersheimer Center for Constitutional Democracy at Cardozo Law School.

She's also a contributor with ABC News and a cohost of the Supreme Court podcast, Strict Scrutiny. Kate, it is wonderful to have you back on the show.

Kate Shaw: [00:01:19] Thanks Jeff. Good to be here.

Rosen: [00:01:20] And Ilya Shapiro is the director of the Robert A. Levy Center for .Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review.

He's the author of the forthcoming book, Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court. Ilya, it's wonderful to have you back on the show.

Ilya Shapiro: [00:01:39] Good to be back with you.

Rosen: [00:01:40] Let's begin with the role of Chief Justice John Roberts. In 2007, at the end of his first term as chief, I had a remarkable interview with Chief Justice Roberts, where he promised to put the institutional legitimacy of the court front and center and said he would try to do that by persuading his colleagues to converge around narrow decisions that could lead them to be unanimous or nearly so. Kate, did he do that this term? And if so, why did he succeed so dramatically this term in a way that alluded him in previous terms?

Shaw: [00:02:17] I do think that the court in many ways, this term became the Roberts court, not just in the sense that courts often bear the name of the chief justices, who sit on them.

But in that he actually controlled the court, in a way that he maybe hadn't previously while chief. So he's been the chief of course, for his entire time on the court, but in many substantive ways, this was the Kennedy court for most of his time on the court and he has cast the deciding vote and written the majority opinion in a significant majority of close cases.

This term also, as you said in not so close cases. So not just in five-four cases, but in cases that are somewhat surprisingly a six-three or seven-two. so not only serving as the chief, but also as the median justice and also as this kind of master of the opinions in the biggest cases that the court has heard.

I mean, I think it's pretty clear that Roberts did not want the court lurching dramatically to the right in this first year of the newly composed Supreme Court, you know, post Justice Kavanaugh's confirmation. And so, stare decisis was a theme that you heard. The Chief Justice returned to one of his two dissents this term was in the Ramos case in which the court overturned a precedent. And he objected to that. He cited stare decisis as his sort of key reason for siding with the more liberal justices in reaffirming the court's abortion decision, Whole Women's Health, which largely reaffirmed the rights set forth in Roe versus Wade.

So I think it's right, that he has placed institutional legitimacy at the center of his thinking about the court. I think he also understands that this is a hyper-partisan moment and difficult and volatile period for the country in many ways. And I think he would like the court to help turn the temperature down rather than turn it up and in pretty masterful ways in a number of these cases, I think that's what he was able to do. I mean, if I can say just one more thing, you know, I've wondered, especially as these last cases involving the president's tax returns have come down, whether the president's constant invocation of Trump judges and Obama judges and his attacks on the court and on Roberts himself have had some effect on the way that the chief approach this term.

And now that Roberts was like acting out of spite in any way. I would be shocked actually, if that were the case, but that Roberts may be stretching to appear even more nonpartisan than he otherwise would because he, he wants very much to resist President Trump's narrative. That judges are really just kind of politicians in robes.

Rosen: [00:04:41] Ilya, Kate just suggested a number of reasons why Chief Justice Roberts was so successful in emphasizing institutional legitimacy this term. Ranging from the retirement of Justice Kennedy and the appointment of new justices who may have been more institutionally minded to the partisan climate and his desire to resist the courts, appearing political at a time when the legitimacy of all of our institutions is under fire.

Why do you think Roberts was successful this term in a way that he wasn't before?

Shapiro: [00:05:11] Well, it's kind of funny. You asked that because I agree with Kate, I think in everything she said and analyzing why Roberts did what he did, but I'm not sure that he succeeded even on his own terms. That is, yes. He's absolutely moving strategically and trying to make the court appear less partisan and always trying to depoliticize and extricate the court from our divisive political discourse, but I'm not sure whether his votes this term or in the past where people have raised their eyebrows, whether that's, actually succeeding. You know, most people look at, outcomes and they look at someone who's either betrayed them or, or otherwise, scratching their heads.

and for example, I think his votes going back to the Obamacare cases, In 2012, 2014, you know, those might've contributed to kind of a populous sentiment that it doesn't matter if we're right on the law, we'll still lose with this, these non-legal strategic kind of, considerations.

Rosen: [00:06:10] Kate, let's start with the subpoena cases.

In both cases, there were seven to two written by the chief, Chief Justice Roberts persuaded his colleagues to converge around a relatively narrow holding. And then some of them wrote separate opinions suggesting that they would have ruled more broadly tell us what the subpoena cases held and what they tell us about Chief Justice Roberts, his vision of the court's role.

Shaw: [00:06:35] Sure. So. So maybe I'll start with advanced case, which is the case brought by the Manhattan DA seeking access to the president's financial records, not from the president directly, but from a number of a number of financial institutions, including Mazars. so the court holds and actually is unanimous in this, holding that the president does not have absolute immunity from legal process.

And that I think is significant. The President's team made extremely broad arguments that essentially no legal process or something very close to that, position, applied to the President at all during his term in office. So an extrapolation and a significant one from the proposition that a sitting president can't be indicted to basically seek a ruling that the president can't be investigated or subject to any kind of legal process at all, at least in the context of a state of criminal investigation.

And that the position was categorically rejected by the entirety of the court. So as you said, the Chief Justice, writes for a five-member majority. So it's a majority opinion. Rejecting the claim of absolute immunity from legal process and also rejecting this sort of fallback position that the President's team offered and actually that the Department of Justice joined that.

Okay. So maybe the President isn't absolutely immune, but in a case like this, some very heightened showing has to be made, before proceedings like this can move forward. And the chief, again, categorically said the constitution doesn't entitle the President to absolute immunity or a heightened standard.

And you know, it's an opinion that begins and ends with Chief Justice Marshall in the Aaron Burr case. and I think it's telling that the chief sort of dwells on the language and in, an opinion in that case at some length, you know, he underscores it, the President doesn't stand exempt from the general provisions of the Constitution, and goes on to it.

Quote, some language suggesting, okay. A common law, the only party who didn't have to testify in response to a subpoena was the King. The President of course, is not a King, right. By contrast, he is of the people and subject to the law. So again, the chief begins there and ends there saying, I sort of read him to be saying the President's team was asserting something like a Royal prerogative, right.

And there's no place in our constitutional scheme for that. Now he does remand the case to the lower courts after rejecting these broad arguments to give the president a chance to assert case specific objections. but I'm not sure having looked at the record fairly closely in this case, that there's much that the president can argue.

That's going to get him very far, with respect to specific objections, in particular, any Article II grounded objections that there's any specific impediment or impairment of his presidential duties that, that the participation or that the continuance of this lawsuit, might impose, Kavanaugh and Gorsuch concur in the rejection of these very broad arguments that the President's team made.

But would have adopted some kind of heightened standard, before a local prosecutor, like this may proceed against a president or again, against a custodian of the President's records, Thomas and Alito, both dissent, but agree that there is no absolute immunity. So this is I think, a very significant.

Not unqualified. but as significant win for the state prosecutors and for the principle that the President does not stand outside of the law, even if some special solicitude as everyone really agrees as appropriate has to be provided to the President in the context of litigation like this.

Rosen: [00:09:54] Ilya, what is your take on the Vance case? And what does this say about Chief Justice Roberts?

Shapiro: [00:10:01] Well, I thought you brought us together to provide a different perspectives, but I, again agreed with what, Kate had to say here. I think it was a, a Hail Mary perhaps to argue for absolute immunity that that's not going to fly.

I also disagree with a D.A. Vance who, issued a crowing press release saying that now he's going to get the records. I agree with Kate that ultimately a Donald Trump probably doesn't have reasons to give the lower court on remand to, to stop the production, but it's not going to happen immediately.

It probably won't happen before, the election, but what this says about, the court is that, as with United States versus Nixon, as with, Jones versus Clinton, the President isn't above the law. And as long as, what the, the DA is, is doing is, as proper, and as in, as a, you know, seeking something as part of, a proper investigation and not some sort of outlandish fishing expedition, then, he's going to be able to get it.

And by the way, once Donald Trump leaves the White house, then I think a lot of other concerns fall away altogether. At that point, private citizen Trump, is, in the same shoes. with regard to the Vance, grand jury, as he would have been, had he never been president.

Rosen: [00:11:09] Kate, tell us about the Mazers case, break it down as you did so well with Vance.

What was the holding that all the justices joined and what were the separate positions and what does that tell us about the chief?

Shaw: [00:11:22] Sure. So this case featured subpoenas from a number of different congressional committees, also directed to third parties, but also seeking a variety of documents related to the president.

and this was actually also a seven-two outcome. So the court also rejects the President and the Solicitor General's request to impose some very high standard just at the threshold on any congressional request for presidential personal papers. So remember, you know, these cases would be different if we were talking about the President's official documents, documents that related to his discharge of his duties as president, these were personal papers mostly from before his time in the White House.

And so I think that actually is, is, is quite relevant to the way the court decides these cases. But so as to these personal papers, the court says we're not going to impose some very heightened threshold. but neither are we going to accept what the lawyers for the House basically presented to us, which is this extremely broad vision of Congress's power of inquiry of its ability, basically to articulate any conceivably, a legitimate legislative purpose, and then to get any document under the sun that it requests in furtherance of that purpose.

so instead the court sets forth, this kind of multi-factor balancing test. How important is it to access the President's papers? Yeah. Are the subpoenas sufficiently narrow? Is the purpose really valid? What kinds of burdens would it impose? and again, sends the cases back to the lower courts for a review of these subpoenas in light of those new standards.

and I think it's possible that, you know, again, there were a few different subpoenas in these cases and the subpoenas may fare differently under that standard. But I think it is as Ilya suggested with the New York case, it is even more. Clearly the case here that none of these documents will see the light of day, anytime soon in light of what follow on litigation is, likely, to, to, to commence right, following the decision today.

I would say don't, you know, one through line of, two cases actually is, you know, the chief very much trying not to, to dramatically upset the Constitution's balance of powers. you know, the President's absolute immunity arguments were very broad in the New York case. And again, categorically rejected.

And the House's has arguments about its authority to investigate we're quite broad as well. And those two failed, although I would say in a more qualified way, I mean the court doesn't question, Congress's power of inquiry and its power of inquiry, even to target the President just says it's important  to take care in particular, when we're talking about the President, that he is not unduly burdened or harassed by requests of this sort. And again, significant that this was a seven-two decision also drawing, separate writings from Justice Thomas and Justice Alito, who had, have been far more protective of presidential prerogatives in this context.

Rosen: [00:13:56] Ilya, tell us more about the Justice Thomas and Alito's position. And also, was it significant that the more liberal justices joined the more conservative justices in creating what essentially was a novel multi-part test that had never been applied before? And what does that say about the willingness of the court to converge around pragmatic outcomes?

Shapiro: [00:14:20] Well, taking the second question first. as, John Roberts wrote in the other case, invoking Aaron Burr and John Marshall and all the way through, there's not really that much history on this. These are, fairly, novel situations. and so it's like in other areas of law, it's not unexpected for the court to put together where it's hard to draw a bright line, some sort of standards or factors for lower courts to consider. And the ones that they came up with I think are quite good. And I agree with Kate again, that, Chief Justice Roberts, along with his colleagues found a, a good way of balancing the interests here, the, the, the branch, interests, between the legislative and the executive, as well as the statements about a state potential in positions on the federal government or on the federal executive, in the Vance case. So, returning to the theme that we opened with as institutional legitimacy, I think these two cases, threaded the needle nicely and kind of, they were a split decision in effect.

Trump wins one, Trump loses another, but nothing immediate happens. I think those, probably were the best moments for John Roberts for the court. And so it's apropos that it comes on the very last day, with respect to the, the dissents in the, Mazers case, the, the congressional subpoena Justice Thomas says that Congress has no power to issue a legislative subpoena for private, non-official documents, whether they belong to the President or not.

So even. You and I, if there are one, they want to investigate tax policy, through the lens of a think tank officials or, or what have you, investing, you know, take getting our documents is not proper. Thomas says, or, Justice Alito in dissent says that legislative subpoenas for a president's personal documents are inherently suspicious.

They're seldom of special value. They're mostly just essentially going after, a president. So courts have to be very sensitive to the separation of powers issue. So overall again, a split decision, which meant with the conventional wisdom, I should add about how this was going to go. I don't think anyone was anyone who was following these cases closely was surprised by anything that happened today with them.

But it does, you know, now becomes really much more of a political issue than a, than a legal one.

Rosen: [00:16:27] Kate, let us turn to the religious liberty cases. There were at least three significant ones. Tell us about them. And let's begin with the Little Sisters case where once again, the chief persuades a bipartisan coalition to converge around a narrow outcome.

There it's the more liberal justices Kagan and Breyer who peel off and suggest that they have a different understanding of how it ultimately play out than some of their colleagues.

Shaw: [00:16:52] That's right. And I do think each of these cases does represent a broad win for religious liberty. But I do think that the specifics of the cases are, are, are distinct and important ways.

So the Little Sisters case involved, yet another Supreme Court encounter with the Affordable Care Act, and yet another encounter with the Affordable Care Act, so called contraception mandate. and so. And at issue in this case is a regulation that even further expands that exemption basically to include any employer who objects based on sincerely held religious beliefs to providing birth control and employers who provide based on moral beliefs.

Although that's a slightly less broad category of employers because publicly traded companies aren't included. So that's all encompassed in a 2017 regulation issued by the Trump administration. and there a challenge to that regulation. And you're right. That it is not a unanimous opinion, but it is basically a seven-two or a five-two-two opinion.

reversing a third circuit decision that had struck down the regulation. and I should say, although it's a religious liberty issue in the case, it's actually, a pure statutory holding, basically that it wasn't inconsistent with the statute you have promulgated this regulation or, or, or that the agency did.

And it did not exceed its authority in promulgating, this broad regulation and nor did it fatally err under the Administrative Procedure Act in the way it went about promulgating, this regulation. so that's a Thomas opinion, for five justices, and then Kagan and Breyer, as you suggested, do join in the result.

but write separately to suggest that actually there are very much open questions about the substantive permissibility of this regulation, right? Under the Administrative Procedure Act, which is a statute that has gotten quite a workout in the Supreme Court, in this term, as well as other reason terms, but especially this one.

so, but as of now, this regulation stands, which does mean very broad exemptions for any objecting employer, which could be to the tune of a hundred, 150,000 employees who, as of now under this ruling, do not get access to the no cost birth control that the ACA, as originally implemented it guaranteed.

Rosen: [00:18:48] Ilya, tell us about the ministerial exemption case. Once again, a seven to two decision the dissenters. Once again are justices Sotomayor and Justice Ginsburg. What did the court hold and how was Chief Justice Roberts able to persuade? The more liberal justices to join a decision, expanding the ministerial exemption to include teachers in religious schools whose primary function wasn't to teach a religious doctrine.

Shapiro: [00:19:18] sure. Before I get to that though, one thing, one more thing on Little Sisters of the Poor and that's that no employees, and this the case has been going on for years now. And no employee of the Little Sisters has actually complained. And that's why, you know, Pennsylvania, New Jersey had to step in. I really hope they drop this suit, this harassing of the of the nuns who are doing, you know, have a vow of poverty and are dealing with Social Services. But, anyhow, the, Our Lady of Guadalupe case, involves something that I think a lot of people hadn't heard of because this is an employment discrimination case, but it doesn't involve so-called culture, war issues, like, contraceptives and abortion and LGBT rights or anything like that.

Two Catholic schools, in these cases fired fifth grade teachers. One, the allegation is because of her age and the other, because you took time off to treat an illness. Now these are not protected under Title VII, but there are federal employment protections of other kinds. and the schools are claiming that the First Amendment, religion clauses allow them to make such personnel decisions free from government interference. And historically there has been this recognition of the ministerial exemption. Religious institutions can hire ministers, without regard to whatever other, employment law overlay, may be there, three years ago or sorry, eight years ago. In fact, the court in Hosanna-Tabor, involving a church school in an Arbitration agreement.

And what have you, the court ruled to, resurrect or, or say that it's still good, this ministerial exemption. And so this case built on that Hosanna-Tabor case and said that there is no rigid formula for applying this principle by a seven to two vote. The court did rule for the schools, and said that the ministerial exemption depends on whether a particular employee, what he or she does.

are they educating young people in the faith, inculcating, its teachings, training them to, life, to live their faith, kind of a, a functional test rather than what's their title or what their degree is in very, you know, kind of a broad ruling. And, and that's what the dissenters, justices Sotomayor and Ginsburg say that this now extends to lay faculty.

and, and what have you, Justice Thomas joined by Gorsuch had a concurrence, saying that, the First Amendment requires deference to religious organizations or forget the functional test. We should just accept a good faith claims, but regardless, a broad exemption for Catholic schools, at least, and probably other religious organizations if they're advocating, if they're teaching their faith.

Rosen: [00:21:40] Kate, why do you think the liberal justices joined that case? And then introduce us to the Espinoza case, which was a five to four decision, written by Chief Justice Roberts involving the conditions under which state aid can go to religious schools and, you know, and, and broadly help us make sense of these three cases.

Why was Roberts able to achieve this bipartisan consensus and in two of the cases, but not the third?

Shaw: [00:22:08] Right, so in the ministerial exception case, you know, as you said, it's a seven- two decision and so Kagan and Breyer join the majority opinion. And I have to imagine that that's in parts of that they could shape some of the language of the opinion.

So Ilya described it as a very broad opinion. and I think that's a fair reading of it, but I also think there are parts of the opinion. That suggests a narrower application. So to individuals who work say in Catholic schools, but are teaching a subject, there's a footnote regarding a world religion teacher, not somebody who is inculcating the faith in any way, but is teaching about the religions of the world.

This person presumably wouldn't be, subject to the ministerial exemption and thus could claim the protections of generally applicable anti-discrimination laws. And it seems to me that that logic would extend to all kinds of other employees, of even religious schools. you know, individuals are teaching physical ed who are teaching chemistry, who are serving, in non-teaching capacities, at least some of them.

so, so I think that. You know, some of the time, of course you can, there is power in joining and shaping an opinion. And I, and I, and Justice Kagan and Justice Brier, in past terms of it. But certainly in this one, we have seen kind of walk that path. And so I think Ilya's right. There is a possibility that this is a very broad opinion in particular, when the question is presented, as it soon will be about the application of its logic, not just to parochial schools, but universities and nonprofits and other kinds of entities.

but I think there is cabining language and the opinion that seems important to me. so Espinoza you asked about that is a five-four opinion. and I think it's not surprising because that one does strike me, at least, much of its language as fairly broad, and it breaks along the traditional lines.

So, the chief justice for himself and the conservative justices, and then the liberal justices dissenting. So it issue is a Montana state constitutional provision, that, prohibits state aid to religious schools, and the court in a pretty sweeping opinion, strikes that down, holding that if states want to subsidize private schools they must also subsidize religious schools. and that does feel like a long way from the position the court once took, even as recently, as 15 years ago that, you know, You know, you, you, you certainly, weren't forced to use state funds for private schools and you may even run into Establishment Clause problems.

If you do here, we see this sort of receding of the Establishment Clause. So much less concerned about state funding of religion, posing a constitutional problem under the establishment clause, and much more concern about protecting Free Exercise Clause values, to the point that even the choice to subsidize certain kinds of education, but to exclude religious education violates the Free Exercise Clause.

so you know, there, of course those two constitutional provisions are in constant tension and there is play in the joints between the two, the Chief Justice acknowledges that all the Breyer in dissent accused of the court of not actually grappling with that, play in the joints and of overvaluing these Free Exercise Clause values at the expense of the Establishment Clause.

And that I think is. Actually is a broad opinion of all the breadth of, Guadalupe, the ministerial case. Again, I think is very much in question.

Ilya, any final

Rosen: [00:25:08] thoughts on the religion cases? And then introduce if you will, the question of precedent in the abortion case, the June medical case, the chief voted with the more liberal justices to reaffirm.

The Hellerstedt decision from a few years back and in the Ramos case, as, as Kate mentioned, the chief dissented in order to defend precedent, what did we learn about the chief's view of precedent in these cases? And what does it say about his vision of institutional legitimacy as well as the future of Roe v Wade?

Shapiro: [00:25:41] Sure. on the religion cases? well, first of all, I think, Espinoza. I guess the inverse of, of, of Kate's take on the ministerial exemption. I, I don't know how broad it is. It's a, there's kind of been a series of cases, to school choice programs, challenges on the Establishment Clause in various ways, going back 20 years.

And this to me seems like the last legal impediment to school choice programs, whether through tax credits or vouchers or, or otherwise. And I don't know what else legally there could be to, to challenge it. Now it just becomes a pure policy issue. So that's significant, but broader what this, the, the religion cases that we've just been talking about, combined with the case.

I don't think we're going to talk about it. I think you had a whole separate program on Bostock the employment discrimination Title VII protections for sexual orientation and gender identity seems to mean that the court is judicially getting towards what Utah got to legislatively. That what's known as the Utah compromise.

That is a lot of protections and rights for the LGBTQ community while at the same time, preserving a religious liberty and exemptions and, and things like that. You know, I'd rather that all happen legislatively at a federal level as well. But, you know, Congress isn't legislating much of anything, I guess.

And so the court has to come up with these accommodations. And that's why, by the way, also, when people were renting their garments over Gorsuch, having written that Bostock case, I think that was a so premature in light of his previous and since writings on religious freedom. Now getting into the precedent and the and the abortion case where religion was only, an issue, I suppose, a behind the scenes, not, not part of the law, at all.

This was an interesting scenario where involved in, Louisiana regulation that required, all, doctors who perform abortions to have admitting privileges at hospitals within 30 miles of Louisiana said that this is because if something happens and there needs to be more medical care, you need to have that kind of safety and health protection. Four years earlier, a similar regulation out of Texas was invalidated by the court, by a vote of five to three. And that's significant. The case was Whole Women's Health versus Hellerstedt, in the five where Justice Kennedy joining the liberals, in dissent was among others, Chief Justice Roberts.

And then this was after Justice Scalia had passed. That's what, that's why there were only eight justices. Now, four years later. As you said John Roberts joins in the majority, but only in the judgment, only in invalidating this Louisiana regulation, again, refusing to endorse and specifically saying he disagrees with, Justice Breyer's plurality opinion which was very similar to his opinion in that Texas case Hellerstedt.

but Robert says, even though I continue to disagree with that for purposes of stare decisis, the idea that sometimes it's less disruptive to society to let erroneous precedent still be on the books than to correct it. I will vote to invalidate this restriction. Notably that's the first time that John Roberts has ever voted to invalidate an abortion restriction or regulation?

I'm not sure the next time we get an abortion case, if it's something other than admission privileges, you know, whether he'll, go back to his normal ways probably. But what's curious about his invocation of precedent and stare decisis. Is that in much, older precedents, more entrenched precedents, he has had a much less of a problem overcoming them.

For example, in Citizens United. that overturned a 20-year-old precedent, very obviously controversial case John Roberts himself wrote a concurring opinion specifically on the importance of stare decisis and why nevertheless, it was overcome in that case, in the Janus Case, just a couple of terms ago involving a workers' First Amendment rights that overturned a 40-year-old precedent.

That was quite significant. and Robert again was, was in the majority there. The Knick case, a property rights case, I think last term or two terms ago overturned a 34-year-old precedent. so it's not that John, you know, John Roberts doesn't have the Clarence Thomas view of stare decisis whereby there shouldn't be any, if you think something's wrong, say so.

but, he's definitely not someone who, every time there's a precedent, he will, always go along with it. And so this was another one of those, I think strategic moves by him to make the court look less politicized, whether he's successful in that perception or not, and also to make the, the vote something other than a Republican appointed justices versus Democratic appointed justices on an issue.

That's perhaps a foremost in the minds of voters when they think about the Supreme court and political claims.

Rosen: [00:30:09] Kate, why do you think the chief voted with the liberals in the June Medical case, but not as Ilya said, in cases like Citizens United. And Janus, was there something specific about abortion and, and he was quite a fervent in his Burkean defense of precedent in June Medical.

What does that tell us about the future of Roe?

Shaw: [00:30:29] He really was, and you know, Ilya is right. That he has, his history is kind of a mixed bag in terms of respect for stare decisis. and here, you know, it's a short discussion, but it really packs a punch. He says, you know, he's citing, I think Justice Jackson here, but he says the constraint of precedent distinguishes the judicial method and philosophy from those of the political and legislative processes.

And, you know, that does seem to be at the heart of his decision here. To return to the themes that we sort of started with that it would look so nakedly political for changed core to so dramatically change the law on identical facts that he could not go along with the dissenting justices and vote to uphold this law.

so I don't know whether that's a broader evolution on the sort of importance and centrality of stare decisis to the rule of law, whether, How much it tells us about how he is likely to vote in a future abortion case. I mean, there is a possibility that it was simply as Ilya suggest the fact that he was served up an identical law and because of the identity of the Louisiana and the Texas' laws at issue, he did not think the court could continue to hold itself out as standing of a politics.

and yet change course, just because of the change of a single member, you know, a single relevant vote, And yet it did. And so he doesn't say anything that sort of tips his hand one way or the other about how this logic will apply. If in fact, he is confronted with in a more direct way, the future of Casey and a Roe, because really the parties in this case accepted the abortion precedents, the big ones, and the arguments were just about whether Whole Woman's Health could be distinguished or it should be overturned.

So that's the 2016 case. but the older, more entrenched cases. Were not squarely at issue in this June Medical case. And so I think it's possible as Ilya suggests, this is the only time Chief Justice Roberts has voted to strike down an abortion restriction and potentially this will remain the only one, but I think that he will have to grapple with his own reasoning as to stare decisis.

if in fact, he is asked in a more direct way to overturn, Casey and Roe, and I mean, maybe one more thing on sort of identical laws. Remember in Gonzales versus Carhart, the court was faced with this federal a partial birth abortion act, right? and it upheld that law, despite having struck down just, you know, a handful of years earlier, a nearly identical state law.

Now he wasn't on the court yet when the Nebraska case came before the court. but. Adherence to a prior decision on a, on a, on a materially, similar law, wasn't something that drove him at least to the point of, of changing his vote in that earlier sort of pair of abortion cases. And that seems relevant here.

I mean, you know, I think it is right that the John Roberts of 2020 is quite different from the John Roberts of 2006, 2007, 2008. and you know, just how different, I suppose, remains to be seen.

Rosen: [00:33:09] Ilya, as you say, we did do a podcast with wonderful discussions about the Bostock case involving LGBTQ discrimination and the DACA case, but let's take a beat on both cases and what they tell us about the chief. So, in, in the Bostock, the Chief Justice Roberts joined Justice Gorsuch's opinion, which was, imbued with a kind of literalist textualism, despite the fact that a few years ago in the second Obamacare case, the chief had embraced a more purposive approach to statutory interpretation.

What does that say about his willingness to join an interpretive approach that he may not agree with in order to avoid five to four splits, and then talk about his decision in the DACA case, which as we discussed on that great podcast is of a peace with his decision in the census case last year, insisting on proper administrative procedures before executive orders can reverse presidential policies.

Shapiro: [00:34:06] Yeah, I think, I think in Bostock, his vote was, purely strategic. So as not to, leave, justice Gorsuch hanging, if you will, with the, more liberal justices, and to not have the court with another five to four decision on such a contentious issue, you know, he's willing to be the sixth vote on a whole lot of issues, whether, in decisions that go to the left or to the right or however you want to characterize, and he's not so willing to be.

you know, the, the fifth vote, if you're breaking ground, if you're doing some sort of narrow technical decision, like, like DACA, like the census question where I think he tried to thread the needle and didn't really make any group happy, giving another bite at the apple, which will ultimately, turn on the politics of Donald Trump is reelected.

Then. then DACA there'll be another, case and other litigation over an attempt to rescind it. No doubt. well, Donald Trump won't be president during the next census, regardless, but that is the implication of his census question case. So I think, Bostock and DACA and June Medical. Those are all examples where I don't think you can say, well, is this faithful to textualism or purposivism or originalism?

This is pure Robert's minimalism being incremental, again, being strategic. So I wouldn't hold anything, in those cases to, to some future case, nor for purposes of abortion. Circling back on our previous discussion, does the June Medical case say what the new standard is? If in effect Roberts is a stare decisis opinion, the.

The binding opinion, I guess, from that case, because it's the narrowest one, reverts, the abortion regulation standard for the courts, I suppose, to use, to evaluate, to the Casey undue burden standard. well, what does that mean for so long? Undue burden was effectively any regulation that gave Anthony Kennedy a headache.

what does it mean under the Roberts court without Kennedy? We just don't know. It'll take a fresh type of case of that kind in a non-election year for John Roberts, truly to, feel free, to express himself on the legal merits, as he did, for example, whether it be in Citizens United or, Obergefell the gay marriage case, or so many others, he is by no means moving to the left or becoming some sort of squishy, moderate.

he is instead trying to be a chief that brings the court together or make it look, less partisan again, I, I doubt how successful he is in that project, just because of the nature of the cases they decide and the nature of our politics at the moment. but nevertheless, that's where I think he's leaving us.

Rosen: [00:36:32] On that point, Kate, do you agree with Ilya that the chief may not in fact be making the court appear less partisan despite his efforts, or do you think he's being successful and talk about the cases we've just put on the table Bostock and the DACA case. And also I'm curious about whether you think that he agreed with the results in these cases, but was just willing to embrace interpretive methodology that he might not have used if you were writing on his own, or if he was really casting a purely strategic votes?

Shaw: [00:37:05] You know, I, on the interpretive methodology question, I'm not sure the chief fetishizes methods, the way some of his colleagues do. You know, Gorsuch is obviously a proud and avowed textualist and Thomas of course is an originalist and, you know, the, the other sort of dabble in different kinds of methods.

but. You know, the Chief Justice, I don't think has any qualms about signing on to a textualist opinion though. He tends to think that other kinds of considerations are relevant when doing statutory interpretation. just as you know, for example, in the Heller opinion, he signs on to a deeply originalist Scalia opinion though he himself is not a committed originalist the way that Scalia was. And so, so, so I just don't, I'm not sure. I think that there are other considerations that sometimes supersede these methodological ones for him. And that I think is why he didn't write separately in Bostock, despite I'm sure not agreeing with every word of Justice Gorsuch's opinion, at least in, in its method.

I do think he probably thought that the result was correct and I, and I think that. It is an interesting question. Ilya mentions the sixth vote, whether he would have cast the fifth vote in Bostock. And I don't know, it strikes me as. Unlikely actually. And I think that there was some, you know, kind of interpersonal dynamics at the court and sort of the public appearance of the decision, you know, being on stronger footing, as a six-three, rather than a five-four opinion.

so I think that those considerations were probably to a degree, in the mix, in terms of, you know, sort of de-politicizing or reducing the appearance of politics and the court's decisions in cases like the DACA case. I mean, I don't know. I really don't know how the politics play in, in some ways what the court seemed to be doing in both DACA and the census case, which is w which are very similar cases.

Is, you know, to do this very close reading of the record in light of the Administrative Procedure Act's requirement of reason decision-making right. That agencies based their decisions on reasons and that they give those reasons to courts and to the public so they can be scrutinized. and that there's a very good and important political accountability reason for those rules and norms and administrative law, which is that yeah.

You know, administrations can change policy, a great deal, but, That they need to tell us why they're making those decisions. And in both cases, it seemed to be, what seemed to be happening inside agencies was something less than a full explanation of what was actually driving administration actors.

So in the census case, the administration told a public story about. Interest in vigorously enforcing the Voting Rights Act when it was quite clear, that was not why the administration wanted to add a citizenship question to the 2020 census. here in the DACA case, the court doesn't ground its decision in a pretext analysis, doesn't say you told a story that was different from what was really driving you, but in some ways I think that's actually what the court was saying.

So the administration said, we feel we need to end DACA because we think it's unlawful Attorney General Sessions has so concluded the court the fifth circuit said that about this sister program DAPA. And for all those reasons, we think that that, that the program is unlawful, but as the Chief Justice, in his opinion points out, there wasn't a real thorough analysis of the kind of costs of, of ending DACA, the reliance interest of hundreds, of thousands of recipients and their families and their children and their spouses and their workplaces.

and there wasn't actually a careful consideration of what DACA is. It's both relief from deportation and eligibility for work authorization. And in some ways, you know, that what the agency didn't do was just say, we have decided as a policy matter, we want to end this program that benefits this extremely sympathetic, and sort of, quite popular from the perspective of public opinion, a group of individuals.

Instead, it pointed to these other reasons, And I think what the court has seemed to be saying in both cases was, you know, give your reasons, and then we can scrutinize them. But these sort of manufactured reasons, or, or incomplete reasons are not sufficient to support this very dramatic action that was taken in, in both cases.

And, and we will see, you know, the President has made noise as he did following the census case. About attempting to start a fresh on rescinding DACA. and I, I genuinely don't know whether that's something that is likely to see the light of day or whether the lawyers inside the administration, will prevail upon him that he's unlikely to succeed, in getting a different result. If he tries again with DACA.

Rosen: [00:41:13] Ilya, let's talk about some of the cases that were more under the radar. there were the cases that the court didn't hear, involving the Second Amendment, for example, among other issues. And there was the denial for injunctive relief in the South Bay United Pentecostal Church case where, that was a five to four decision with Robert's joining the liberals.

And Robert said, That basically it should be up to politically accountable officials of the state to guard and protect medical safety. what does, Robert's his role in this under the radar shadow docket? Tell us about his vision of institutional legitimacy.

Shapiro: [00:41:51] I think the two huge, groupings of circ denials were significant, significant enough to talk about as much as.

some of the cases that actually were decided, and Second Amendment was one of them, and qualified immunity was the other, and those denials, I think it was 10 cases in each or 10 and 12, came the same day that Bostock was decided. So it was a, it was a huge day. I think it was three Mondays ago.

notably Justice Thomas dissented from denial in both the Second Amendment and the qualified immunity case. Then he was joined by Gorsuch on the Second Amendment as he has been in the past and by no one in qualified immunity, not even Sotomayor who you whom you would have expected. Both of those, I think are real blows and real abdications of the court's responsibility, to fix the law and to show the lower courts, how to do things.

The, the court having, declared moot. The Second Amendment case that had, had taken up this term, New York State Rifle and Pistol Association after having for 10 years, not taken up a case once Kennedy was gone and presumably a more reliable vote, for Second Amendment rights, Kavanaugh was on the court.

That's why they took it. and yet it was mooted out, although Kavanaugh joined that moot and he said, but there are many good positions out there that we can consider. and yet there weren't four votes to grant, which is curious with the only Occam's razor suggests that it's because the four more conservative justices aren't sure where Roberts would be on that, even though he was in the majority.

In both Heller, which declared the individual right in 2008 and McDonald, which expanded it to the States in 2010. So that was a real curiosity. and a on qualified immunity, similarly, an outcry across ideological outcry, for reform, perhaps what happened there is that it came right at the maximum time of protests for police reform after the killing of George Floyd and maybe Roberts convinced his colleagues that this was not the time to take these cases and further inflame or out, or keep the flames going. I don't know some kind of consideration like that, but a lot of people, huge numbers of people disappointed by both of those moves, other shadow docket things, you know, That East Bay one, which I think is the only pandemic related case to get to the court.

Although I might, I might be missing something that was still in the fairly early stages. If that case had been decided a month later after the California authorities had allowed a mass protests to go on, but not churches. I think that would have gone a different way, but it just came a little early where, certainly courts were still quite deferential to, government public health initiatives.

Rosen: [00:44:18] Kate, what would you like to share about the shadow docket Ilya has mentioned, the Second Amendment and qualified immunity cases, we've talked about this one Corona case, and there was also a voting rights case from Texas that the court decided not to hear right now. What does the shadow docket tell us about the chief justice is role and vision?

Shaw: [00:44:40] I actually think that last topic you mentioned, Jeff is a really important one. So the intersection of COVID and the sort of democratic process, these primary elections on the upcoming November election. so remember back in April, there was, an emergency petition to the court to block district court opinion out of Wisconsin that would have expanded access to absentee voting.

You know, this is the early days of the pandemic. Most States had actually rescheduled their primaries, Wisconsin after a lot of back and forth between the political branches in that state decided to go forward with its early April primary. but there was a crush of requests for absentee ballots that the state officials just couldn't satisfy in some litigation resulted in a district court order that would have expanded access to absentee voting and extended the deadline for returning both receiving and returning those ballots.

and that was affirmed by the seventh circuit and the court, in a five-four opinion, blocked the lower court order, expanding access to absentee voting in relevant part. there's one, maybe I'll just leave it at that. Largely blocked the lower court order, expanding access to absentee voting. and so the election went forward in Wisconsin under the existing rules. many people, you know, at least 10,000 individuals did not receive absentee ballots. They had requested, and many did turn out to vote in person, you know, potentially exposing themselves and poll workers to the virus. There were. Oh crazy delays. Milwaukee was down from 80 to five in person polling places, largely because a lot of poll workers were scared to come to work and thus they couldn't staff the polling places.

and so in a five-four decision that Chief Justice held that basically a principle that the court often uses in election cases, the Purcell principle, which basically provides that federal courts should not interfere with the mechanics of elections election sort of processes on the Eve of an election.

Required the court to stay the district court order, which had been issued within, you know, a number of days of the election. and there was a very fiery dissent from Justice Ginsburg herself on the more liberal justices. and I wonder whether we will see more like that. We actually saw something just within the last week and a half similar out of Alabama, a similar district court order, expanding access to absentee voting.

This is for an Alabama state runoff in mid-July. And, the court without opinion, stayed that district court order. And we don't really know why I, I presume because the state of Alabama invoked the same Purcell principal that had been at issue in the Wisconsin case, that that is why the court decided to intercede.

but, but I do think that it is. Concerning that the Chief Justice seems to be on board with. Limiting the ability of lower courts to do some remedial work, to protect access to the ballot, in this unprecedented moment of election related challenges. And I think and worry a lot about the intersection of that tendency, a tendency not to let courts do too much in the election sphere, potentially intersecting with some of President Trump's rhetoric, raising doubts and questions about the integrity of absentee voting, which is going to be a central feature of a successful election in many States, many of which just didn't have much absentee voting before. So we are going to be in fairly uncharted waters, when it comes to election administration. And some of it may well end up before the court.

Rosen: [00:47:52] Ilya, as Kate says, there's nothing more politically contested of course, than these voting rights cases.

And the RNC vs DNC Wisconsin case you just mentioned was a clearer failure of Chief Justice Roberts, his vision of non-partisan non-ideological, decisions. what can we expect in the election decisions that may well come before the court, before the November election, given the Chief Justice's aspiration on the one hand and, and, and the Wisconsin case on the other, and maybe in the course of this answer, talk about the other cases where there were five to four conservative, liberal splits, including the Selia law, Consumer Financial Protection Bureau case.

Shapiro: [00:48:34] Sure I had forgotten about that Wisconsin case. It was such at the, at the beginning of the pandemic, it feels like several lifetimes ago. at this point, I think I recall agreeing with the outcome at the, at the time, but I don't remember now for what reasons. So much has, has gone, by, under the wall, under the bridge, since then.

yeah, so what's interesting. We talk about, Chief Justice Roberts navigating the shoals de-politicizing the court. when you look past the DACA and June Medical decisions, and I suppose today's Oklahoma ruling. which, where, Justice Gorsuch joined the liberals and in a five to four, the statistics actually make it look like a very conservative term.

There were 13, five to four cases. This term nine of them had the five Republican appointed, more conservative justices together. only three of them, as I said, twice with Roberts. And once with Gorsuch had one of the conservatives joining the liberals and then one heterodox alignment. That's very different from the previous term where of the 25 to four cases, eight of them had one of the conservatives defecting to join the liberals.

Only seven of them had the conservatives hanging together. So it could be that Roberts is a, you know, at the high profile things that, you know, even the layman is paying attention to he's voting strategically, but this just goes to show that that underneath it all, he remains a conservative and I suppose on his vision of voting rights and allowing States to regulate their own election procedures, he remains that way.

But of those other five to four kind of conventional or expected cases, I guess, we talked about Espinoza. let's see, Selia Law. Yeah, that's a, that's an interesting case involving the Appointments Clause, the Consumer Financial Protection Bureau when it was created by Dodd Frank is really an extraordinary agency.

Not only does it write its own rules, investigates, enforces, adjudicates, and punishes, but, gets, it's funding, not from Congress, but from the Federal Reserve. So independent, it's probably the, fifth branch of government, not even the fourth. and it has a one single director. It's not like the SEC or the FTC, which has a whole commission.

and that issue here was that director was insulated from political accountability could not be removed except for malfeasance or negligence for cause is the technical legal term. And the court split, five of them found that this was an unconstitutional structure, a different seven and overlapping different seven said that the remedy is to just sever that for cause provision, and, make, make that director of the CFU removable by the President.

So I guess if we get a President Biden next year, we'll have a new director. of the CFPB, stern dissent by, by Thomas and Gorsuch saying, look, this is not how Congress would have designed it. and this still is, is improper. But at the end of the day, kind of a minimalistic John Roberts opinion as he did eight years ago in involving a different alphabet agency.

Where he severed the for-cause removal provisions rather than disrupting the agency operations.

Rosen: [00:51:30] Kate, well, this has been an illuminating tour of a remarkable term, but I want to ask again, the question I began with, why was it this term that Chief Justice Roberts was more successful, at least in the high-profile cases of achieving the vision that he set out.

At the beginning of his Chief Justiceship, are the justices as a whole aware of the remarkably partisan climate and determined to join the chief in preserving the legitimacy of the court at a time when all of the institutions' legitimacy is under siege. Talk about the roles of, justices Gorsuch and Kavanaugh, who joined the courts and Justice Kennedy's retirement.

And to what degree is this? Robert's court legitimacy vision likely to persist next term?

Shaw: [00:52:19] You know, he may have been more successful this term because he kind of led by example, he himself crossed over from expected positions in a number of cases and potentially that invites others to do the same.

And so, you know, so I do think that, you know, some of these interesting, not just Gorsuch and Roberts joining the liberals and the Title VII case, but Breyer and Kagan, as we talked about joining the conservatives in the Ministerial Exception case, the Little Sisters Affordable Care Act case. Thuraissigiam a case that we did not talk about in which Breyer and Kagan also joined the, more conservative justices, the fact that you had Gorsuch and the liberals in Ramos, this non unanimous jury case, I think was potentially significant Kavanaugh writing the majority opinion in a death penalty case Flowers, while Gorsuch, dissented with Thomas and Alito.

So you had a number. Of interesting lineups, you know, Ilya may be right that the number is lower, but the salience of a lot of the cases in which you saw unexpected, alliances forged, I think maybe matters more than the raw numbers. So, so it may be that, as the chief. You know, himself cast votes that appear surprising.

there is, you know, sort of a ripple effect among the other justices. I mean, I also think there are a couple of, of explanations we haven't really talked about. I mean, one possibility is that the fact that particularly during the presidential primary season, there was quite a lot of interest in Supreme court reform, right?

Talk of term limits of, you know, rotating panels of, lower court judges as sitting as Supreme Court Justices of expansion of the size of the Supreme Court. so, so I wonder whether on some level the sort of political spotlight, has had some impact on the Supreme Court, in its interest, in.

You know, working even harder to appear, apolitical, you know, it, it may be that some of these opinions, I mean, I think it's a mixed bag. There are, you know, sort of liberal wins and con

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