The NPR Politics Podcast - The Docket: The First Term With A New Conservative 6-3 Majority On The Supreme Court

Episode Date: July 3, 2021

Chief Justice John Roberts used to be seen as a solid conservative, but as the center of conservative politics moved to the right so did the justices appointed after him. Now with a 6-3 conservative super majority on the court, what role does the chief justice play?This episode: Congressional correspondent Susan Davis, legal affairs correspondent Nina Totenberg, and special guest Tom Goldstein.Connect:Subscribe to the NPR Politics Podcast here.Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Listen to our playlist The NPR Politics Daily Workout.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey there, it's the NPR Politics Podcast. I'm Susan Davis. I cover Congress. And I'm Nina Totenberg. I cover the Supreme Court. And this is The Docket, our ongoing series where we break down the biggest legal stories of the day. And Nina, the Supreme Court has just wrapped up its first term with its new conservative 6-3 supermajority. We've talked through all the major decisions in recent weeks on the podcast, but today we wanted to look at the term as a whole, and in particular the role Chief Justice John Roberts has played in shaping the decisions we saw this year. So to start, can you just take a step back and tell me what you think about when you look at the term as a whole?

Well, in order to understand this term, Sue, I think you have to go back to a year ago when Chief Justice Roberts was riding high. Not only was he the chief justice, but with the retirement of Justice Anthony Kennedy in 2018, Roberts became the controlling vote and the shaper of opinions in many of the court's most pivotal cases. He was the deciding vote and wrote the court's opinion blocking the Trump administration from manipulating the census, from ending the program that currently protects the so-called dreamers from deportation, and he crafted the seven to two majority opinions rejecting President Trump's claims of immunity from grand jury and congressional subpoenas. But, but, but now we're in 2021.

And there are five justices on the court now, even more conservative than he is. So they don't need him. He's not the controlling vote anymore. And we've seen hints of this, this term. For most of 2020, Roberts wrote the decisions that in the name of public health and safety deferred to state and local government COVID rules that limited church attendance. But once Amy Coney Barrett arrived, Roberts found himself overruled by the other conservatives. Can I ask you before we get into more of Roberts specifically, this role of chief justice, how big of a role do chief justices tend to play in swaying the court or deciding the direction of the court? And frankly, I think of a lot of it as being a ceremonial role in a lot of ways, more than a practical one, but maybe that's wrong. And there have been chief justices who've been very powerful because they knew how to use their power and their persuasion to what they call mass the court on many important decisions. And there were others who were much more ceremonial and dragged along by other members of the court.

Chief justices also have the power of assigning opinions if they're in the majority. And that means that the decision might be written broadly or narrowly. So it is not merely a ceremonial position. So when I think of Roberts specifically, he was appointed by former President George W. Bush. And I recall it, I recovered the confirmation process. In my memory of it, he sort of sailed through and he was held up as this sort of paragon of conservative justice. And he didn't really meet much conflict. I mean, is that how you remember it? I just remember him being sort of seen as this widely respected conservative jurist at the time.

Well, he was widely respected, but he really had only been a judge for a couple of years. He was a very charming and knowledgeable Supreme Court nominee, and half of the Democrats supported his nomination. So he was enormously successful, and he had always been a person on the move and viewed by the conservative movement as the guy to watch if there was a Supreme Court opening. But what it means to be a conservative has shifted in the 16 years since Roberts was appointed. That's an understatement. And Trump and his supporters have championed far more aggressive conservative activism embodied not only by the three Trump appointees, but by Justice Clarence Thomas, appointed by the first President Bush, and Justice Samuel Alito, appointed by the second President Bush. And Roberts, while plenty conservative, tends to be more of an incrementalist

and an institutionalist. And some of the other conservatives on the court have joined him in some decisions this term. But one has the sense that this was a getting-to-know-you term, with the justices sort of feeling their way. And while some conservatives like justices Thomas Alito and Gorsuch were sometimes champing at the bit to get on with their conservative legal agenda, others, including Trump's last two appointees, Amy Coney Barrett and Brett Kavanaugh, look to me at least to be holding their fire a bit. You know, I see an echo here of what's happened in politics happening on the court, because there's this question of Roberts, who 16 years ago was this emblematic guy of conservatism. And now the question is, has Roberts moved more to the center, or has the center point of conservatism moved more to the right?

Well, the center has definitely moved more to the right. And now the question is, can he persuade other conservative justices moved more to the right? Well, the center has definitely moved more to the right. And now the question is, can he persuade other conservative justices to move a few inches closer to him? Is it part of his job to position the court so that it doesn't incite a growing counter movement against the court and its legitimacy? And can he maintain some semblance of control over the desire by many of the court's conservatives to undo what previous courts have done? All right, well, let's take a quick break. And when we get back, we're going to look at the term's decisions and what it says about the chief justice's role in shaping the court. And we're back.

And Nina, you've brought us a special guest to the podcast, Tom Goldstein. So please, why don't you do the honor of introducing him to our listeners? Well, Tom Goldstein began his career, his career of fame, as my intern 25 years ago. Oh, I did not know that. He is today known and has been for a couple of decades now as the publisher of the leading blog on the Supreme Court, SCOTUS blog. He's the founder and publisher. And so take it away, Sue. Wait, Tom, what was it like interning for Nina 25 years ago? Oh, if these walls could talk. Tom, we were just talking about Chief Justice John Roberts and his role in how the court has evolved. But I know that you look at the court, you've looked at a lot of numbers of the court. So can you give us sort of

your analysis of this past term? Sure. So we do try and take a look at the end of every term. And it was Nina who taught me this. At, you know, where is the court in its five-four decisions? Are they ideologically divided? Are there a lot of them or are there fewer of them? And it tells us how narrow the majority is at the court. And what we see this term is that there are fewer and fewer five-four decisions, but that that matters less and less when you have a six-justice Supreme Court majority. So if you use our old method of calculating, because for decades, it's really been the case that it was, you know, a conservative who sat dividing the court between four liberal justices and five more conservative justices, it's just not true. So you really have to look at the six, three

decisions and the five, four decisions. And there we have about one in every five cases coming out with a conservative majority against a more liberal dissent. And that number is actually pretty consistent across time. The conservatives winning about one fifth, the big free speech cases. And it's just emblematic of what's happening in the law. And that is there is a decade decades long move in the Supreme Court of making American law more conservative and dragging society along with it to some extent. The late Justice John Paul Stevens used to say, I didn't move, the court moved. And he was a forward appointee, a moderately conservative judge promoted to the Supreme Court. And I think it's fair to say he changed on a couple of subjects, probably most of all the death penalty.

But other than that, he became the court's most liberal member by the time he retired. And that's not because he changed. It is because the court changed. The center of gravity of the court changed. Tom, there's also been a fair number of unanimous decisions in the past term, right? Sure. So it's always the case that between 30 and 50% of the cases are nine to nothing. That's because, you know, to be honest, a good bit of what the Supreme Court does is relatively

boring stuff. It's having to bring uniformity to American law when there are disagreements in the lower courts about energy policy, about some random regulation, the kind of non-sexy workaday job of judging. And so we saw that, of course, this term too. And the other thing is that, you know, we have a large number of decisions that are kind of mixed up. You just put them in there and the justices scramble around, and that should give the American public some confidence that the place is just not a, you know, political factory churning out decisions that are good for conservatives and the progressives hate. A lot of the court's work is not this kind of ideological hardcore warring. It's just that on some very, very, very important things to Americans, it is. But clearly the 6-3 supermajority,

as you noted, has having a real impact on the court. And I wonder, as both of you look to the next term, where we know a lot of these, I want to say, culture war sort of issues are going to come up, that seems to be something that should make conservatives feel pretty emboldened right now. Well, it should, and it probably does. I mean, it only takes four justices to grant a case, to say we're going to hear this case. So that's not a majority. But usually there's a fair amount of strategic decision making about should we actually agree to hear this case if we're going to lose it? You might say that if you're a liberal or a conservative. And if you're not sure, the court very often punts for a very long time.

And it did that for over a decade about gun rights. But next term, it's taken an important gun rights case. And it did that pretty much for at least a while on abortion rights. And next term, they've taken a big, big abortion case. And for years, over and over again, the court would take an affirmative action case with conservatives hoping to get rid of it, and then it would somehow end up reaffirming affirmative action in higher education. And now it's very likely that they will take an affirmative action case in the coming term. And if they do that, John Roberts hates affirmative action. He's always an affirmative action case in the coming term. And if they do that,

John Roberts hates affirmative action. He's always hated affirmative action. And I would think he would be right there with everybody else to get rid of it. Well, that also begs the question when they're deciding to take up these more controversial issues, does the Chief Justice ever play sort of an outsized role in cajoling or coercing the court to take up some of these questions like affirmative action, if they feel strongly about it. Tom, I don't know what you think. I've never actually been part of a Supreme Court conference. It's only the nine. And I haven't bugged the Supreme Court yet. So I don't actually know whether the chief is hugely instrumental in that. But my sense is that he was very relieved

to be able to keep the Supreme Court out of the election wars this year. And that, but he is not a fan of the Voting Rights Act. He was Reagan's point man against the Voting Rights Act, trying to get it done in. And he's done pretty well this term, coming pretty close to that. Now, a lot is at stake next term. And Tom, what do you think? The Chief Justice produces the list of cases that the justices will discuss as potential cert grants that they would hear. And when they meet, he's the one who introduces the cases and describes them and gives the first opinion on whether they ought to hear them. That said, he's just got one of the votes, and it takes four to grant, as Nina has said.

And so he doesn't have an enormous power in setting the agenda at the court. It really is a combination of, is there some reason that the court has to take a case because there are divisions in the lower courts? And is this viewed by a potential majority of the Supreme Court as part of its agenda, things that the court or its conservative majority here really believe they need to get into and change the law? The six three decisions, especially the more controversial ones in recent weeks, I'm thinking of the voting rights decision in particular, have also highlighted, though, how much more closely the progressive left is playing to the

court and trying to influence the court. And because I'm a political reporter talking to legal reporters, I have to ask you what the view is about Justice Stephen Breyer. He's the oldest justice on the court. There's a lot of pressure coming from the left to have him step down while Joe Biden is president and Democrats control the Senate to guarantee that they won't face a 7-2 possible conservative majority if Joe Biden were not to win re-election. And I wonder from the legal community view, is this something that people are watching closely for a possible retirement? Well, yeah, we're watching. We're not hearing much of anything as we tape this. There has been no indication that Breyer is going to retire. Of course, he could retire

anytime during the summer. He could announce a retirement next term at the beginning, or in the middle, or at the end. He's about to turn 83, but he's hired law clerks. He's one of the most fit 83-year-olds I've ever laid eyes on. And if we can keep him off his bike, because that's where he keeps getting hurt if he falls off his bike or runs into somebody. If we can keep him off his bike, he'll probably stay around. But we, you know, the truth is, maybe Tom knows, but I don't know. Yeah, nobody knows. But I would say that Justice Breyer is, you know, fighting against two different instincts. Number one is, he is politically

sophisticated. He worked in the Senate, he recognizes the prospect that Democrats will lose the Senate in 2022. At the same time, he doesn't want the court to look political and that he is just getting out because we now have a Democratic president. And the balance between those two things almost certainly leads him to retiring next term in the summer before there is an election in which Republicans could take back control of the Senate. All right. Well, Tom Goldstein, thank you so much for joining the Politics Podcast. We really appreciate it. Thanks for having me. I'm Susan Davis. I cover Congress.

I'm Nina Totenberg. I cover the Supreme Court. And thanks for listening to the NPR Politics Podcast.