00:00:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. There's been a lot of criticism from all quarters, including Supreme Court justices, of the Court's emergency docket, often called the shadow docket because of its lack of transparency. Often the majority doesn't include their reasoning when issuing these orders. Well now, Federal Appeals Court judges are budding heads about the role of the emergency docket and how much weight lower courts should give those orders, with one judge saying it forced lower courts to divine binding doctrine, at another lamenting his colleague's rhetorical assault on the High Court. My guest is constitutional law expert David super, a professor at Georgetown Law. David, everyone knows that judges have to follow Supreme Court precedent. Are the Court's decisions on the emergency docket any different?
00:01:01
Speaker 2: They can be different if they aren't explained, because the lower courts are bound by the Supreme Court's holding. But if it's only holding is that uninjunction in this case or that is stayed, and they don't give us any reasoning, then the lower courts are not bound by reasoning that they are speculating they're bound by what the court tells us to decide cases.
00:01:32
Speaker 1: And we've seen before it. I think we talked about pushback from lower court judges complaining about the lack of guidance. One judge wrote that recent emergency docket rulings regarding grant terminations have not been models of clarity and have left many issues unresolved. But now we have this disagreement about the emergency docket coming from appellet judges on the Fourth Circuit. So this wasn't a case related to tell us what the majority, the Ibak majority decided in that case.
00:02:05
Speaker 2: Yeah, the case was about an injunction limiting Doz's access to extremely sensitive social security information on you and me and hundreds of millions of other people. And the Supreme Court had previously held that an earlier lower court injunction in that case could not be enforced until appeables were fully exhausted up to the Supreme Court. And so what the majority in the Fourth Circuit decided was that it was going to send the case back down to the district court. It was not going to purport to reinstate an injunction because the Supreme Court had pretty clearly said it couldn't do that.
00:02:52
Speaker 1: That's the majority. And this prompted a rebuke from Judge James Wynn, who was joined by four other judges, and he argued that his colleagues were treating Supreme Court emergency docket orders as precedent. They must follow quote to treat interim orders as binding precedent abandons our long held jurisprudence of deciding constitutional law through reasoned opinions. Is this just utter defiance.
00:03:21
Speaker 2: It's absolutely not defiance. It's actually a very traditionalist and the Supreme Court has lectured us often on the importance of following the rules that were in place when the Constitution was adopted. And this is, although it doesn't call itself originalists, this is originalist in that courts have two entirely different functions that they often perform in the same case. They decide the rights of the parties before them, and they make precedent for the future. Those are different functions, and nobody, not the concurring justices, not Justices Jackson and so Tom, Nobody questions that the Supreme Court can decide the rights of the parties before it on the shadow docket. The question is whether when it issues an order for the parties in front of it without an opinion or without a meaningful opinion, if that should be also treated as president and the history is that court's issue opinions to tell us why they're deciding things. Often the parties are making half a dozen different arguments and knowing that that party one doesn't tell you which of those six arguments was persuasive with the court. And if we just guess as to why the court did what it did, will often be creating a law out of thin air, playing ventriloquist, which is not the lower court's job. It's not any of our jobs.
00:04:49
Speaker 1: In a case where the Supreme Court allowed President Trump to temporarily remove three democratic members of the Consumer Product Safety Commission, the Court stated that while interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases. What does that mean?
00:05:10
Speaker 2: Well, there's a lot unpacked there. When they say it doesn't decide the merits of that case, it means that the party's rights are not finally decided. The parties can continue to litigate the lower court and come up to the Supreme Court. So that part is well understood, then the question is what kind of precedent is it? And the Justice there says that it informs what the lower courts can do, but only in like cases. When you don't have much of an opinion from the Supreme Court, it's very hard to know what like cases are, and it can inform only to the extent that it provides information. And if they don't tell us what's important, then it's very hard for lawyers or judges or voters to know how they are to change what they're doing. Also critical here that the Justice mentions equitable discretion. Equity is not a system of rigid rules. Equity is a system of judges applying judgment, and that judgment should be consistent with the general principles of our system. But it's never a rigid process, and so asking lower court judges to act rigidly in an equitable case is like asking for a ocean without any water. It doesn't work that way.
00:06:40
Speaker 1: Speaking of water, Judge J. Harvey Wilkinson, the third who's Reagan appointee, said in his concurring opinion that Judge Wind's warning creeps too near the water's edge of defiance for my comfort, and he described it as a rhetorical assault upon the Supreme Court. Then Win came back and his opinion and said, if anything creeps towards the water's edge, it's the notion that lower courts must divine binding doctrine from orders that say nothing of the kind. It does seem to put lower courts in a terrible position.
00:07:13
Speaker 2: Well, it does. And there are two distinct criticisms of the shadow docket that really need to be separated here. One is about inputs and the others about outputs. There are a lot of criticisms which I share that they're taking too many cases and they're not getting the benefit of lower court decisions, of a fully developed record oral arguments, and that that can lead to them making bad decisions, decisions that are much worse than the same court would have made if it had proper inputs. But there's a second distinct complaint about the outputs, that they don't give us much in the way of opinions. And that's what we're arguing about here. I suspect Judge when would just assume the Supreme Court take fewer cases on the shadow do actually, suspect Judge Wilkinson would agree with that. But if they're going to take the case and decide it and expect it to be treated as president, they need to write opinions telling us what the precedent is, allowing us to figure out what cases are governed by it and what are not. And there's a very old tradition of lower court judges criticizing, often very directly, Supreme Court decisions and complaining that Supreme Court decisions don't give them proper justification. There's a very famous case by Judge learned Hand, one of the most respected district judges of the twentieth century, Nobody's Liberal, complaining about a decision that the Supreme Court did and basically saying their rationale is so thin, I'm not going to apply it as precedent because I don't know how. And that's in all the books I teach it every year in my course. That is certainly not a disreputable opinion.
00:09:00
Speaker 1: And yet Justice Neil Gore such scolded lower court judges for not following Supreme Court rulings, saying lower court judges may sometimes disagree with this Court's decisions, but they are never free to defy them. But other justices are critical of the shadow docket themselves. For example, there was a recent appearance by liberal Justice Katanji Brown Jackson and conservative Justice Brett Kavanaugh. She said that the Court's increasing willingness to intervene before lower courts fully resolved disputes creates a warp system. But he said he didn't relish the increase in emergency petitions, but they're required to take action one way or another when emergency relief is sought. I mean, are they being pushed into this, you know, by the Trump administration's actions that are being held back by lower courts.
00:09:55
Speaker 2: Well, the Trump administration is a revolutionary administration, and you can be happy or unhappy about that, but they are trying to overturn the way things have been done for many years, in some cases for the whole history of the Republic. And if you like it, you call it draining the swamp. And if you don't like it, you call it lawless. But they're doing a lot of radical things. It's no surprise that when you put forward a radical program you get sued a lot. Franklin Roosevelt was sued a great deal and he put forward a radical program. Abraham Lincoln was sued a lot when he put forward a radical program, so we shouldn't be surprised by that. And saying that the Trump administration is being burdened in a way that priorate administrations that followed our political and governance customs were not really isn't a very persuasive argument. It is true the Supreme Court is getting many, many more petitions from the Trump administration than priorate administrations filed, but that really is attributable to the Court itself. It grants a great many of them, which causes more to be filed. I'm aware of cases in prior administrations where there was a strong desire to file one and the Solicitor General basically said, we don't get to do this very often, and this isn't one of the few cases I'm willing to do it on. There's no one saying that in this administration, they just file, file, file, And.
00:11:25
Speaker 1: Actually, Justice so to Major during an appearance last Thursday, said the Court had itself to blame for the flood of emergency appeals, and she pointed to what you were just saying. Stay with me, David. Coming up next, we'll talk about the rumors that Justice Alito is going to retire. You're listening to Bloomberg. Justice Sonya so To Mayor has been on the road making public appearances speaking about her latest children's book and her experiences as a Supreme Court Justice. So To major took an unusually public public and pointed swipe at fellow Justice Brett Kavanaugh while speaking at the University of Kansas Law School. It related to a September eighth emergency order issued on the shadow docket, where the justices paused lower court rulings that had temporarily barred immigration agents from targeting people based solely on their language, occupation, race, or presence at locations such as car washes or bus stops. In a concurrence, Justice Brett Kavanaugh said legal residents promptly go free after typically brief encounters with authorities. Well, without naming him, Sotomayor said, quote, I had a colleague in that case who wrote, you know, these are only temporary stops. This is from a man whose parents were professionals and probably doesn't really know any person who works by the hour. I've been talking to constitutional law professor David Souper of George Law. David Sotomayor has vented her frustrations at public events before, But this surprised me because it seemed to be a personal attack on Kavanaugh. And you don't usually see justices criticizing each other in public. They always claim that they get along wonderfully.
00:13:21
Speaker 2: You don't usually hear that, and I think the reason you don't is because they're afraid that it will interfere with their ability to work with one another in the future. But when justices believe that there already is no ability to work together, frustration can boil over. There are not a lot of controversial cases on with Justice Sodomaior and Justice Kavanaugh have been on the same side, and there have been quite a few where it's been otherwise. But I think that the point that she's making, perhaps more bluntly than some would is an important point. And about the shadow docket. Just as Kavanaugh asserted as a indisputable fact that US citizens and legal permanent residents are immediately let go, there's overwhelming evidence that's not true. And if the Supreme Court was taking cases that were properly developed in the lower courts on the facts, it would know that's not true, and it could say we don't care, or it could say we will allow orders designed to make that se or it could say this means these stops are inappropriate, but it wouldn't be able to make absolute assertions of fact that are simply false. And if you want to decide cases on the law, maybe there's an argument for an emergency docket, although I don't agree with it. But if you want to decide cases on the fact, which he's doing there, then you have to let the lower courts develop the facts by.
00:14:59
Speaker 1: The wa are now referred to as Kavanaugh stops. Two days later, Sodomayor said in another appearance that she has civil relationships with virtually all of her fellow justices and that she regards many as friends. I mean, what happens. Do you think the next time they go into conference, which is Friday, is there frostiness in the room on ease or is it just you know, another conference.
00:15:25
Speaker 2: I mean, these are professionals, and I'm always a little skeptical about the claims that these people are big friends of one another. I know Justice Ginsberg and Justice Cleia went to the opera together, but I think that in many ways, these are nine independent offices, each in the same building, that interact mostly through paper and occasionally in fairly formal ways, like oral arguments and conference. So I'm not sure that this changes a great deal. You know, I don't see a lot of outward evidence of much comedy. The Court is working very very fast. I'm sure it is jamming that the descending justices to work to all hours to get their descents out, rather than holding up and giving them a little bit of time, which has been done on very very big cases in the past.
00:16:22
Speaker 1: I can imagine you must be frustrated because she's on the wrong end of the six to three decisions, you know, so often the liberals. And she was asked by a University of Alabama law student about how she's built bridges with the court's conservative majority, and she said, if you mean bridges, convince them that they're wrong. I descend so much, I'm not very successful. Do you think the liberal justices have sort of given up trying to convince their conservative colleagues.
00:16:50
Speaker 2: No, I don't. I think that all three of the liberal justices are very capable, very talented, and all three of them chose to take appointments on the Court at a time when they knew they would be in the minority. I see no evidence that they've stopped working and on cases where the majority doesn't have strong views, and some of these are very important cases. You do see seven to two, eight to one, nine to nothing decisions. And so the Court is functioning, and the liberals are functioning, and they have credibility with at least many of the Conservatives.
00:17:33
Speaker 1: You know what I do miss. I do miss the hot bench and also the laughs when Justice Scalia and Justice Bryer were on the court together and trading comments at times. Now the oral arguments are mostly very somber. Sometimes there's a laugh, but not often.
00:17:51
Speaker 2: Unfortunately, that's true of our political system more generally. You think of funny senators, and most of them are dead, and you think of funny presidents. I don't think any of the last several would count as funny. Our last funny president, I think was Ronald Reagan, who since then really so, I think it's not surprising that the Supreme Court's reflecting us in many ways. The Supreme Court reflects the country, and often in ways that embarrass us. Appropriately, it's a great point.
00:18:27
Speaker 1: Finally, there is speculation that Supreme Court Justice Samuel Leto, who's seventy six and has not announced his retirement, but that he might retire to give a Republican president the chance to replace him. He is the second oldest Justice, but he's years away from the age when other justice is retired. Justice Stephen Bryer was eighty three, Justice Anthony Kennedy was eighty two, and Justice John Paul Stevens was ninety. Do you think this talk of Alito retiring is just pure speculation? You're in DC tell us.
00:19:06
Speaker 2: And if there's one thing we love, it's pure speculation. I mean, I don't know. Justice Alito is, if anything, too young to be president of the United States, so I don't know what he thinks. He's doing it at age seventy six. Maybe he's gonna go for an internship somewhere, but it's hard to know. This is an amazing job for most of them. Justice Suitor didn't care for it, but most of them love it. And Justice Alito is still very sharp. He's writing opinions that reflect what he wants to do, so it would surprise me if he would walk away from it. And I can also imagine that some justice is certainly the Chief Justice, urging him not to do that because it would make it look like a political move like he's trying to give a seat to President Trump to fill rather than doing the job as long as he's capable of doing it. So I hope he's not planning to step down because that would be a further step towards the politicization of the Court, which does not need anymore.
00:20:16
Speaker 1: And also, Alito is finally in a super solid conservative majority where his views mesh with the majority.
00:20:26
Speaker 2: You know he is, and he's getting good assignments. He's the third most senior conservative on the Court, but the Chief Justice and Justice Thomas are both giving him really good assignments. From his perspective, he got to write Dobbs, he gets to write other important opinions. Some justice have talked about retiring because they were only given mundane cases, but that's not his problem.
00:20:51
Speaker 1: If he did retire, that would give Trump yet another chance to appoint a Supreme Court justice. It would be his full fourth Supreme Court appointee. I think that may be a record.
00:21:04
Speaker 2: Is first three appointees. They're not cookie cutters. They are different in meaningful ways, and justice score such in Capitol on statutory cases very often disagree with one another. But I think if you look at the kinds of people he's put in his cabinet this time versus the first time around. All the people in his cabinet first time around very conservative, but some of them are also very impressive. This cabinet is certainly conservative, but it's hard to say who is the most impressive member of his cabinet. There just aren't very many. And I'm afraid we will get a Supreme Court nominee who reminds us of Harold Carswell, who the Senate declined to confirm because he was too mediocre.
00:21:54
Speaker 1: I would love to hear that phrase mediocre as a reason given in some of the conference hearings for federal judges. We covered so many bases today, David, I always enjoy these conversations. Thanks so much. That's Professor David Super of Georgetown Law. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. There's been a lot of criticism from all quarters, including Supreme Court justices, of the Court's emergency docket, often called the shadow docket because of its lack of transparency. Often the majority doesn't include their reasoning when issuing these orders. Well now, Federal Appeals Court judges are budding heads about the role of the emergency docket and how much weight lower courts should give those orders, with one judge saying it forced lower courts to divine binding doctrine, at another lamenting his colleague's rhetorical assault on the High Court. My guest is constitutional law expert David super, a professor at Georgetown Law. David, everyone knows that judges have to follow Supreme Court precedent. Are the Court's decisions on the emergency docket any different?
00:01:01
Speaker 2: They can be different if they aren't explained, because the lower courts are bound by the Supreme Court's holding. But if it's only holding is that uninjunction in this case or that is stayed, and they don't give us any reasoning, then the lower courts are not bound by reasoning that they are speculating they're bound by what the court tells us to decide cases.
00:01:32
Speaker 1: And we've seen before it. I think we talked about pushback from lower court judges complaining about the lack of guidance. One judge wrote that recent emergency docket rulings regarding grant terminations have not been models of clarity and have left many issues unresolved. But now we have this disagreement about the emergency docket coming from appellet judges on the Fourth Circuit. So this wasn't a case related to tell us what the majority, the Ibak majority decided in that case.
00:02:05
Speaker 2: Yeah, the case was about an injunction limiting Doz's access to extremely sensitive social security information on you and me and hundreds of millions of other people. And the Supreme Court had previously held that an earlier lower court injunction in that case could not be enforced until appeables were fully exhausted up to the Supreme Court. And so what the majority in the Fourth Circuit decided was that it was going to send the case back down to the district court. It was not going to purport to reinstate an injunction because the Supreme Court had pretty clearly said it couldn't do that.
00:02:52
Speaker 1: That's the majority. And this prompted a rebuke from Judge James Wynn, who was joined by four other judges, and he argued that his colleagues were treating Supreme Court emergency docket orders as precedent. They must follow quote to treat interim orders as binding precedent abandons our long held jurisprudence of deciding constitutional law through reasoned opinions. Is this just utter defiance.
00:03:21
Speaker 2: It's absolutely not defiance. It's actually a very traditionalist and the Supreme Court has lectured us often on the importance of following the rules that were in place when the Constitution was adopted. And this is, although it doesn't call itself originalists, this is originalist in that courts have two entirely different functions that they often perform in the same case. They decide the rights of the parties before them, and they make precedent for the future. Those are different functions, and nobody, not the concurring justices, not Justices Jackson and so Tom, Nobody questions that the Supreme Court can decide the rights of the parties before it on the shadow docket. The question is whether when it issues an order for the parties in front of it without an opinion or without a meaningful opinion, if that should be also treated as president and the history is that court's issue opinions to tell us why they're deciding things. Often the parties are making half a dozen different arguments and knowing that that party one doesn't tell you which of those six arguments was persuasive with the court. And if we just guess as to why the court did what it did, will often be creating a law out of thin air, playing ventriloquist, which is not the lower court's job. It's not any of our jobs.
00:04:49
Speaker 1: In a case where the Supreme Court allowed President Trump to temporarily remove three democratic members of the Consumer Product Safety Commission, the Court stated that while interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases. What does that mean?
00:05:10
Speaker 2: Well, there's a lot unpacked there. When they say it doesn't decide the merits of that case, it means that the party's rights are not finally decided. The parties can continue to litigate the lower court and come up to the Supreme Court. So that part is well understood, then the question is what kind of precedent is it? And the Justice there says that it informs what the lower courts can do, but only in like cases. When you don't have much of an opinion from the Supreme Court, it's very hard to know what like cases are, and it can inform only to the extent that it provides information. And if they don't tell us what's important, then it's very hard for lawyers or judges or voters to know how they are to change what they're doing. Also critical here that the Justice mentions equitable discretion. Equity is not a system of rigid rules. Equity is a system of judges applying judgment, and that judgment should be consistent with the general principles of our system. But it's never a rigid process, and so asking lower court judges to act rigidly in an equitable case is like asking for a ocean without any water. It doesn't work that way.
00:06:40
Speaker 1: Speaking of water, Judge J. Harvey Wilkinson, the third who's Reagan appointee, said in his concurring opinion that Judge Wind's warning creeps too near the water's edge of defiance for my comfort, and he described it as a rhetorical assault upon the Supreme Court. Then Win came back and his opinion and said, if anything creeps towards the water's edge, it's the notion that lower courts must divine binding doctrine from orders that say nothing of the kind. It does seem to put lower courts in a terrible position.
00:07:13
Speaker 2: Well, it does. And there are two distinct criticisms of the shadow docket that really need to be separated here. One is about inputs and the others about outputs. There are a lot of criticisms which I share that they're taking too many cases and they're not getting the benefit of lower court decisions, of a fully developed record oral arguments, and that that can lead to them making bad decisions, decisions that are much worse than the same court would have made if it had proper inputs. But there's a second distinct complaint about the outputs, that they don't give us much in the way of opinions. And that's what we're arguing about here. I suspect Judge when would just assume the Supreme Court take fewer cases on the shadow do actually, suspect Judge Wilkinson would agree with that. But if they're going to take the case and decide it and expect it to be treated as president, they need to write opinions telling us what the precedent is, allowing us to figure out what cases are governed by it and what are not. And there's a very old tradition of lower court judges criticizing, often very directly, Supreme Court decisions and complaining that Supreme Court decisions don't give them proper justification. There's a very famous case by Judge learned Hand, one of the most respected district judges of the twentieth century, Nobody's Liberal, complaining about a decision that the Supreme Court did and basically saying their rationale is so thin, I'm not going to apply it as precedent because I don't know how. And that's in all the books I teach it every year in my course. That is certainly not a disreputable opinion.
00:09:00
Speaker 1: And yet Justice Neil Gore such scolded lower court judges for not following Supreme Court rulings, saying lower court judges may sometimes disagree with this Court's decisions, but they are never free to defy them. But other justices are critical of the shadow docket themselves. For example, there was a recent appearance by liberal Justice Katanji Brown Jackson and conservative Justice Brett Kavanaugh. She said that the Court's increasing willingness to intervene before lower courts fully resolved disputes creates a warp system. But he said he didn't relish the increase in emergency petitions, but they're required to take action one way or another when emergency relief is sought. I mean, are they being pushed into this, you know, by the Trump administration's actions that are being held back by lower courts.
00:09:55
Speaker 2: Well, the Trump administration is a revolutionary administration, and you can be happy or unhappy about that, but they are trying to overturn the way things have been done for many years, in some cases for the whole history of the Republic. And if you like it, you call it draining the swamp. And if you don't like it, you call it lawless. But they're doing a lot of radical things. It's no surprise that when you put forward a radical program you get sued a lot. Franklin Roosevelt was sued a great deal and he put forward a radical program. Abraham Lincoln was sued a lot when he put forward a radical program, so we shouldn't be surprised by that. And saying that the Trump administration is being burdened in a way that priorate administrations that followed our political and governance customs were not really isn't a very persuasive argument. It is true the Supreme Court is getting many, many more petitions from the Trump administration than priorate administrations filed, but that really is attributable to the Court itself. It grants a great many of them, which causes more to be filed. I'm aware of cases in prior administrations where there was a strong desire to file one and the Solicitor General basically said, we don't get to do this very often, and this isn't one of the few cases I'm willing to do it on. There's no one saying that in this administration, they just file, file, file, And.
00:11:25
Speaker 1: Actually, Justice so to Major during an appearance last Thursday, said the Court had itself to blame for the flood of emergency appeals, and she pointed to what you were just saying. Stay with me, David. Coming up next, we'll talk about the rumors that Justice Alito is going to retire. You're listening to Bloomberg. Justice Sonya so To Mayor has been on the road making public appearances speaking about her latest children's book and her experiences as a Supreme Court Justice. So To major took an unusually public public and pointed swipe at fellow Justice Brett Kavanaugh while speaking at the University of Kansas Law School. It related to a September eighth emergency order issued on the shadow docket, where the justices paused lower court rulings that had temporarily barred immigration agents from targeting people based solely on their language, occupation, race, or presence at locations such as car washes or bus stops. In a concurrence, Justice Brett Kavanaugh said legal residents promptly go free after typically brief encounters with authorities. Well, without naming him, Sotomayor said, quote, I had a colleague in that case who wrote, you know, these are only temporary stops. This is from a man whose parents were professionals and probably doesn't really know any person who works by the hour. I've been talking to constitutional law professor David Souper of George Law. David Sotomayor has vented her frustrations at public events before, But this surprised me because it seemed to be a personal attack on Kavanaugh. And you don't usually see justices criticizing each other in public. They always claim that they get along wonderfully.
00:13:21
Speaker 2: You don't usually hear that, and I think the reason you don't is because they're afraid that it will interfere with their ability to work with one another in the future. But when justices believe that there already is no ability to work together, frustration can boil over. There are not a lot of controversial cases on with Justice Sodomaior and Justice Kavanaugh have been on the same side, and there have been quite a few where it's been otherwise. But I think that the point that she's making, perhaps more bluntly than some would is an important point. And about the shadow docket. Just as Kavanaugh asserted as a indisputable fact that US citizens and legal permanent residents are immediately let go, there's overwhelming evidence that's not true. And if the Supreme Court was taking cases that were properly developed in the lower courts on the facts, it would know that's not true, and it could say we don't care, or it could say we will allow orders designed to make that se or it could say this means these stops are inappropriate, but it wouldn't be able to make absolute assertions of fact that are simply false. And if you want to decide cases on the law, maybe there's an argument for an emergency docket, although I don't agree with it. But if you want to decide cases on the fact, which he's doing there, then you have to let the lower courts develop the facts by.
00:14:59
Speaker 1: The wa are now referred to as Kavanaugh stops. Two days later, Sodomayor said in another appearance that she has civil relationships with virtually all of her fellow justices and that she regards many as friends. I mean, what happens. Do you think the next time they go into conference, which is Friday, is there frostiness in the room on ease or is it just you know, another conference.
00:15:25
Speaker 2: I mean, these are professionals, and I'm always a little skeptical about the claims that these people are big friends of one another. I know Justice Ginsberg and Justice Cleia went to the opera together, but I think that in many ways, these are nine independent offices, each in the same building, that interact mostly through paper and occasionally in fairly formal ways, like oral arguments and conference. So I'm not sure that this changes a great deal. You know, I don't see a lot of outward evidence of much comedy. The Court is working very very fast. I'm sure it is jamming that the descending justices to work to all hours to get their descents out, rather than holding up and giving them a little bit of time, which has been done on very very big cases in the past.
00:16:22
Speaker 1: I can imagine you must be frustrated because she's on the wrong end of the six to three decisions, you know, so often the liberals. And she was asked by a University of Alabama law student about how she's built bridges with the court's conservative majority, and she said, if you mean bridges, convince them that they're wrong. I descend so much, I'm not very successful. Do you think the liberal justices have sort of given up trying to convince their conservative colleagues.
00:16:50
Speaker 2: No, I don't. I think that all three of the liberal justices are very capable, very talented, and all three of them chose to take appointments on the Court at a time when they knew they would be in the minority. I see no evidence that they've stopped working and on cases where the majority doesn't have strong views, and some of these are very important cases. You do see seven to two, eight to one, nine to nothing decisions. And so the Court is functioning, and the liberals are functioning, and they have credibility with at least many of the Conservatives.
00:17:33
Speaker 1: You know what I do miss. I do miss the hot bench and also the laughs when Justice Scalia and Justice Bryer were on the court together and trading comments at times. Now the oral arguments are mostly very somber. Sometimes there's a laugh, but not often.
00:17:51
Speaker 2: Unfortunately, that's true of our political system more generally. You think of funny senators, and most of them are dead, and you think of funny presidents. I don't think any of the last several would count as funny. Our last funny president, I think was Ronald Reagan, who since then really so, I think it's not surprising that the Supreme Court's reflecting us in many ways. The Supreme Court reflects the country, and often in ways that embarrass us. Appropriately, it's a great point.
00:18:27
Speaker 1: Finally, there is speculation that Supreme Court Justice Samuel Leto, who's seventy six and has not announced his retirement, but that he might retire to give a Republican president the chance to replace him. He is the second oldest Justice, but he's years away from the age when other justice is retired. Justice Stephen Bryer was eighty three, Justice Anthony Kennedy was eighty two, and Justice John Paul Stevens was ninety. Do you think this talk of Alito retiring is just pure speculation? You're in DC tell us.
00:19:06
Speaker 2: And if there's one thing we love, it's pure speculation. I mean, I don't know. Justice Alito is, if anything, too young to be president of the United States, so I don't know what he thinks. He's doing it at age seventy six. Maybe he's gonna go for an internship somewhere, but it's hard to know. This is an amazing job for most of them. Justice Suitor didn't care for it, but most of them love it. And Justice Alito is still very sharp. He's writing opinions that reflect what he wants to do, so it would surprise me if he would walk away from it. And I can also imagine that some justice is certainly the Chief Justice, urging him not to do that because it would make it look like a political move like he's trying to give a seat to President Trump to fill rather than doing the job as long as he's capable of doing it. So I hope he's not planning to step down because that would be a further step towards the politicization of the Court, which does not need anymore.
00:20:16
Speaker 1: And also, Alito is finally in a super solid conservative majority where his views mesh with the majority.
00:20:26
Speaker 2: You know he is, and he's getting good assignments. He's the third most senior conservative on the Court, but the Chief Justice and Justice Thomas are both giving him really good assignments. From his perspective, he got to write Dobbs, he gets to write other important opinions. Some justice have talked about retiring because they were only given mundane cases, but that's not his problem.
00:20:51
Speaker 1: If he did retire, that would give Trump yet another chance to appoint a Supreme Court justice. It would be his full fourth Supreme Court appointee. I think that may be a record.
00:21:04
Speaker 2: Is first three appointees. They're not cookie cutters. They are different in meaningful ways, and justice score such in Capitol on statutory cases very often disagree with one another. But I think if you look at the kinds of people he's put in his cabinet this time versus the first time around. All the people in his cabinet first time around very conservative, but some of them are also very impressive. This cabinet is certainly conservative, but it's hard to say who is the most impressive member of his cabinet. There just aren't very many. And I'm afraid we will get a Supreme Court nominee who reminds us of Harold Carswell, who the Senate declined to confirm because he was too mediocre.
00:21:54
Speaker 1: I would love to hear that phrase mediocre as a reason given in some of the conference hearings for federal judges. We covered so many bases today, David, I always enjoy these conversations. Thanks so much. That's Professor David Super of Georgetown Law. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg
