More. How are things going in Austria? There good very good, although I do miss the hot girl somewhere in New York. How do you say Hocker summer, in German as hot for airlines summer? maybe high some regions are its utter, depends on whether the hot is referring to the summer the girl. This boy has both the houses on the hassle meets him we'll take her hello and welcome to the five thirty eight politics pod cast Iron Galen track on Thursday, the Supreme Court wrapped up its term issuing opinions in two cases related to election. Both decisions split the port along ideological lines. Six to three with serve. It is in the majority the opinion and burn aurettes versions. The Democratic National Committee ruled the heiress No laws invalidating ballots cast in the wrong precinct and barring collection of Alex by most third parties did not

violate the voting rights, opinion and Americans for prosperity versus bond, ruled that Caliph your law requiring nonprofits to disclose their major donors is a violation of the first amendment that wrapped up the first term of a six three conservative, mature, and justice. Amy Coney bear its first term on the bench prior to Thursday's decisions, analyse have largely seeing the court as avoiding a hard great turn, with more unanimous decisions and idiosyncratic squids than expected tonight. We're gonna take a look at what the data can tell us about. The ideological direction the court and will dig into some of the specifics of the terms major cases, particularly on election law. So first we're gonna talk to five thirty eight contributor, more broader and then later ABC, contributor and law. Professor Kate shot will join us Laura welcome to the shout hey thanks for having me great to have you. So what data do we rely on to get a sort of quantitative picture of the ideological?

one of the Supreme Court. So there's a bunch of data mostly the way that justice is decided. Each of these cases, the most common. Used are the Martin Quinn scores which scale these justice. ANA one dimension, which is generally considered the left right dimension. You can also look at how often each justice agreed with each other justice You can look at how often each justice was in the majority, and you can also look at the percentage of each case that was done did unanimously, or that was decided particularly closely. Later on, will also have other data. Looking at witnesses where conservative, liberal and issue area. Then we can look at that more realistically, but right now those are the main things we have already shown were here at five thirty, eight years data for every they give us a picture of what this path Supreme Court term. What white from what the data can tell us,

so there's a six three conservative majority now, but a lot of ways, it's quite similar to the five for conservative majority that existed before it's a very conservative court decisions like the ones you mentioned on the Voting Rights ACT or on union access to work places, for example, made that clear, but also both of those are issues on which the court has ruled in Athens. of direction in the past. One of the main differences when you look at the data is actually in this kind of paradoxical. We see more splits among the conservatives, so splits between, say, Cavanaugh Roberts, on the one hand, Alito Thomas, on the other hand, so if you think it is actually make sense. It's easier to see these ideological differences among the conservatives because they no longer need to vote together to win cases, and in particular we can see that conservatives this agree on the pace that they want to move the court to the right should now

We're seeing clear splits within the conservative majority. Are we able to sort of rank the justices in terms of whose most conservative, just from an outside perspective, observing the core? I think it's pretty clear that a leader and Thomas are the most conservative on the core in most situations, but the newer Justices Cavanaugh Go Research Barrett. What can we say about their ideological positioning? That's basically what the mutton, when school have they have Thomas and a NATO sort of on the far side of the court. They have less to say about the four justices courses bear cabin on Roberts, the scores of those for justice, as are all a lot closer together and the confidence intervals around the scores. Overlapped. Some extent We know that the scores have them is course edge to the right and then bear it Cavenaugh Roberts, but the uncertainty. There means that it is possible that that's not the exact right way to think about it. Orders for them

this is in the middle of the right left spectrum and an let's also take a look at the liberals. How do they rank after this most recent term? It's difficult to say. is what's in the middle of the court as it currently exists, isn't necessarily the middle of the ideological spectrum, so Cavanaugh is currently estimated to be the median justice on the court and Roberts is very, very close in terms of the ideological position but neither of them have moved to the last at all since the last estimate last year, so the court itself has just shifted to the which is understandable, given that kinsfolk was replaced by Amy, Coney bad, and so the centre of gravity has changed, but that doesn't mean that the justices have changed position. And when you look at the liberal wing of the court, those three they do, vote together? A lot of the time their agreement scores should around ninety percent, which is very high. You do see that sort of my Eyes, seemingly a little bit to the last of the other two Brian Kagan, but they

no vote together much more than they vote with any of the conservatives, which is to be expected there also in the majority a lot less, which again is to be expected, given that therein, the liberal minority, I mention four, The watchers there seem to be more unanimous opinions and more idiosyncratic splits, particularly amongst the conservatives and also amongst the liberals. Then you might have expected. Does the data back that up to some extent? Yes so you can see that the liberals do vote together more than they vote with any of the conservative justices. That's basically what you would expect pay. You can see also that Thomas votes less frequently with, for example, cabin on Robards than Cavanaugh of its vote with each other or Barrett boats with cabin on Robert said some, those splits are above all in the agreements scores and also in the number of times that each justice is in the majority. Thomas, for example,

an elite or a lot less than Cavenaugh Roberts are one of the things court watches pointed out is that certain decisions, this term, including high profile decisions like the folding decision on catholic Foster agencies and the institute, will aid decision on student, needs were actually unanimous and that was to some extent unexpected and some have written that. That shows that the court has transcended partisan device their ideological divides. There were about forty four percent of the decisions as term were unanimous in that's pretty much in line with the past ten years. So the last three years actually had a low fraction of decisions that were unanimous, I think in the authorities, but over the past ten years. Forty four percent is pretty much right. Where you would expect in terms of unanimity, is I dont think that there is damaged data backing up the idea that

this is a particularly unanimous court yeah. I mean it's important to point out here that we're looking at overall data and that often times what can leads to the narrative is more high profile cases. So our high profile cases being decided by a clear conservative, liberal split or by a unanimous decision in that, as may be going to impact people's perceptions of the court more than some of the lower profile cases. They don't get a lot of attention and also, in this case, looking at this aggregate data. At least at this point we can't yet say which parts of the law of the court is moving, particularly in one direction or another before Europe up here I'm curious. We got some sense of berets ideological orientation, as you mentioned in her first term,

What do we expect this data to change going forward? Why? This is the first term of a six three conservative majority? Do we see that people are pretty consistent from their first term? Honour should be for these things to evolve. We have seen doesnt boy were changed from the first term and later on, for example, in contrast, first term on the quiet he actually agreed as much with Kagan as he did with joy search, but in by the second time you could say that the agreed much while of course, that's pretty much where he stayed much more than with Kagan. So there are ways in which justices do change their behaviour. To some extent, I think it's less commonly. Does it reflect a shift in what they believe and more We need their just sort of like finding their footing and their figuring out how they feel in all these cases one,

important thing is that a lot of the cases that were decided this term were selected before just a spare? It was on the court and so that something that now that the cases that the court has picked for next term might give us a pretty good of the direction in which the court is heading and they ve already selected cases on abortion cases on gun rights. So we can expect that there are going to be quite some hot button topics that the court is going to be deciding on next term that this term they didn't realize that they would have this x three majority at all right. Well, we will keep track and the data they you so much for now worth thinking size. Your browser is a contributor here at five. Thirty eight up next: where did you hear from war professor Kate Shop, but for

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calm, flash five three eight now that we have a sense of the court's ideological orientation overall, let's do get to some of the specifics of the cases. This term, in particular Thursdays decisions regarding election related law and hearing me to do that is ABC contributor, Kate, Shaw, she's, a professor of law at the Cardoso School of LAW and co host of the pod cast strict scrutiny. Welcome backache thanksgiving, let's begin with the case out of

resumed, I known as the burnt a rich verses, democratic National Committee, so Republicans in Arizona Pass laws that require all ballots cast in incorrect precincts to be discarded and then band third parties like campaign workers and community members from collecting ballots and delivering them to pull in places that are sometimes known as ballot harvesting. The democratic National Committee shewed alleging that these restrictions adversely affected minority voters. The laws were originally upheld in lower court, then overturned and now the Supreme Court has upheld them with a six three split along ideological lines. So take what was the court trying to determine in this case, specifically will essentially whether these two Arizona laws violated section two of the Voting Rights ACT, so the vote

exact rate from nineteen. Sixty five is the single most important piece of voting legislation, pro democracy legislation that the country has ever known that role the history clock back a little bit. The fifth amendment is added to the constitution in eighteen, seventy eight and that purports to prohibit denying or a bridging the right to vote on the basis of race, but for about a hundred years, that's basically an empty promise. Until the voting rights active nineteen sixty five action, reiterate the prohibition on racial discrimination in voting, but also creates enforcement mechanisms, rights or gives actual ways to get into court, to challenge the denial of the right to vote and the two big provisions in nineteen sixty five are section five at which basically subject some states to specialise procedure whereby the federal authorities had to approve any changes in voting procedures before they could go into effect and section to this nation. Wide prohibition on racial discrimination in voting, so in twenty thirteen Supreme Court essentially struck down section five right. This pre Clarence

Ireland that apply just to some parts of the country. So the part that was at issue in yesterday's case was the last big remaining part of this Denmark, piece of legislation that, as I said, really was restored in many ways for bringing about a genuine multiracial democracy. So the Supreme hasn't had a lot of section. Two cases in the post shall be county, arrogant, pre shall becoming section. Five was we're locked. The action was section to his. What remains so. It is this in some cases involving things like redistricting, so called vote, dilution claims, but not a case involving the denial or abridgment of the right to vote through restrictions, like the two that you just mentioned this out of prison policy and the prohibition on ballot collection and the difficult here and now we upheld these restrictive voting laws, the knights forget, reversing, you know, sort of found, look this out of precinct. policy results in voters of color in particular, need of Amerika. Eighteen o voters having their balance discarded at a truly one rate compared to white voters and then also

This ballot collection prohibition bears very heavily on voters of color and disproportionately heavy heavily on matters of color in Arizona and somehow the both of these requirements violated section two so that here in a pretty sweeping opinion by Justice SAM Elite over himself and the other five conservative justices said. No. These laws don't violate section two. may even burden disproportionately burden voters of color, but they're, not bad enough to violate section two and essentially so with a cordon, do is to say no law violate section to the core purported to leave intact. The prohibition on Rachel was donation in voting, but what it did was to really ratchet up the difficulty of six. As for making out a case right that there has been a section to violations are successfully challenging esteem floating law busily said we have to look space.

We in future cases law courts have to look at all these factors like what other ways to vote does estate provide Arizona. The opinions has again and again actually makes a pretty easy to phone. You can vote by male sort of setting aside the fact that, for a lot of residents of Arizona Sancho easier by mail, if you don't have reliable mail service and even have a post office nearby, but because there are lots of ways to vote according to Justice Alito, these two restrictions weren't enough to constitute a violation. of the Voting Rights ACT. The court also said something that I think are quite significant about the importance of a state's interest in preventing fraud which had been this report. The basis on which Arizona enacted. This was, of course, a lot of these restrictive voting rules are being enacted, ostensibly on the same logic. We seem to say that an important state interests, and even in the absence of real evidence, that it's a problem and in this state that can justify states implementing restrictions like these.

I want to dig into some of the arguments here and then talk rather broader implications of today's we're. So, first of all, the two laws that are in question in Arizona are not unique to Arizona their other states, that ban voting and other precincts or having third parties collect ballots, and things like that. In fact, some states like Vermont or Delaware, that you don't think of us, particularly conservative, don't count How that are cast out of precinct one of the reasons there is because you may end up voting in an election. For example, they do want qualified devoted right like if I go ten blocks over in New York City, I met the eunuch different congressional district. and therefore have a waste on my ballot that I can actually voted so There are other states out there that have these restrictions in place. Where is the line in terms of what restrictions are? Okay and what restrictions art? Okay, now that the court has given this appeal

Bob, it's not entirely clear it. It doesn't matter what other states do so how much of an outlier practices, I think, will be an important factor in, accords analysis of the possibility of restriction or regulation under the Voting Rights ACT, so the court that you know these are not really outlier practices. Regulations in Arizona, and so how come? They are something that is gonna matter in the court's ultimate resolution of these future challenges, so that those suggested Can it be? This kind of like one way ratchet quality to future litigation? Annual Legislative action in the spheres of a bunch of states move to enact pretty restrictive voting laws. They're gonna be easier to defend. As their happening on mass as opposed to an isolation and there's another part of it, I didn't mention that in terms of we're, just as we always out some of these factors and one of them, in addition to kind of her common or unusual. A regulation is, is how much a dick as from the basic situation on the ground in nineteen, eighty two so as

in the Voting Rights ACT, was passed in nineteen sixty five but amended insignificant part a night able to actually in response to another Supreme Court decision, so nineteen, eighty Supreme Court decision city of mobile verses, bold in this or held that in order to show that there are violation of section to need to be able to establish basically discriminatory intent, not just that of voting practice. Disproportionately whore the voters of color, but that was intended to do so and combat responded pretty decisively to rewrite part of the Voting Rights ACT. To say no it shows that the effect is discriminatory, as opposed to the intent is discriminatory in that way, nineteen? Eighty two as an important date here, just as leader settled You know we're gonna see how different acts as to the ballot is under whatever regulation were looking at from access it existed, making any two there wasn't it for by meal in many states in eighteen, eighty, two and so dancer. he's lying, that's gonna, be great for stated. So because the one is there, not rolling things back to a priest,

nineteen eighty two state of affairs, they're gonna, be in a pretty good position, different There was no. This is not the only factor that illegal identified that it was an important one. So so I think its right to the extent that so there is a conservative backward looking quality to that part of the analysis, but also the sort of comparative were dimension. Other states doing is gonna, be something that I think is gonna to go to the benefit of states. Now, if there is real outlier restrictions that our past I think plaintiffs are gonna, have some good ammunition from this opinion to say this is not the sort of thing that other states, doing, and for that reason the state should have to work harder to justify a bit so long as the kind of moving in lockstep which, in this way the restrictive voting. decision that we ve seen since January

in a number of states, there's a lot of similarity and overlap. I think the states are gonna be much better able to defend their laws after this decision than they were before. I want to read from the opinions today that really gets at this question of how much a law can adversely impact minority voters without being deemed illegal unconstitutional secures a quote from Teddy's opinion. The racial disparity in burdens, allegedly caused by the out of precinct policy, is small in absolute terms of the Arizona counties that reported out of precinct balance in the two thousand. Sixteen general election, a little over one, percent of hispanic voters. One percent of african american voters and one percent of native american voters who voted on election day cast an out of precinct ballot for non minority voters. The rate was around half a percent, a procedure that appears to work for ninety eight percent or more of voters to whom

applies minority and non minority alike is unlikely to render a system unequally open. So essentially saying this doesn't seem like enough of a disparity to violate section two of the voting ransacked. Then this is from the descent seemingly directly countering that argument quote today. The core undermine section two and the right it provides. The majority fears that the statue Congress wrote is too radical that it will invalidate too many state voting laws, so the majority rights its own set of rules limiting section two from multiple directions. Wherever it can, the majority gives a cramped reading too broad language, and then it uses that reading to uphold two election laws from Arizona discriminate against minority voters. I could

ay and will in the following pages that this is not how the court is supposed to interpret and apply statutes. So it actually is an argument about. Is the core allowed to see some disparity and say that that disparity is not big enough? How is the court going to determine what is big enough to violate the constitution in the future? that the portion of the majority opinion that you read write the talks about the two to one disparity, both not being an relish terms large enough and the fact that only one percent for these voters of color and half per cent for white voters, not in absolute terms. Large enough for two of these factors that a leader in the majority opinion points two, and I think that Kagan is right. to point out that there is nothing in the Voting Rights ACT that suggest that only the disenfranchisement of significant numbers or percentages of voters in particular groups, arise. The level of violence the Voting Rights act right so tat. One is, I think you know pretty large to relative.

Number and any very close election? And when you go to the data guys, but like airs, was really close. No less presidential election. So, like a one percent difference in we're talking about, What in many states presidential election was decided by a few thousand or a few tens of thousands of votes, dance, on trivial number about so in terms of the potential consequences I think elite. Was a little hasty in suggesting that this is all trivial, but kings points a deeper one about the I read the statute, contains the prohibition on the trial or abridgment of the right to vote on the basis of race, and that doesn't seemed to allow on her reading of the language of the statute. This glass thoroughly oh offers, which is the denial arrangement of the right to vote. Even on account of race, is ok. So once we're not talking about an enormous group anything, she thinks that for a court that purports to be a textual must coordinate. Leader was really of unavowed textual, as everybody else in the majority says the way we interpret stature, dismay hewing very closely to their text. There is not

the text of section two of the Voting Rights ACT. That says anything like what Justice Alito reads it to mean. In this opinion, shoot from here do we expect that there is going to leave future litigation, tries to nail down exactly what is too much, and is there any indication of what it could be in the middle, the opinion that we saw today. I think that for advocates of voting rights and litigators who have been and will continue to challenge the sum of the new and some longstanding state laws that restrict the right to vote. All is not lost. Section two remains a part of our law, end does say that this kind of totality the circumstances test, which is in the stance, remains the task he just offers a bunch of additional overlay on top of the totality the circumstances again. These factors that I think are very favourable to states defending their vote

laws, but I think where you can show eight substantial disparity, so I don't think don't mix and absolute pronouncement that to the one is not sufficient, I think maybe, if you had to the one, but where the apple Numbers were greater. That might still be able to at least get a hearing, I'm not sure what the ultimate outcome would be in warfare report of the Supreme Court blessings. That remains very much a possibility, certainly a disparity. That is greater than to the one in terms of the disproportionate burden on minority voters that voting restriction imposes. a wire or unusual kinds of voting restrictions that are not currently in place in other states. Recasting has about this a good amount but part of there were some concern on the part of some voting rights advocates about this challenge, because these are not so unusual as voting restrictions go. That's me, that they're not problematic and meaningful for people whose right to vote was denied because of one of these two laws, but there is certain that, with this newly constitute a very conservative supreme court. These

fairly borderline Arizona laws might be the occasion the court would use to really ratchet up the difficulty of making on a successful section to claim, and indeed that is what we have seen and so I think that there are other more serious voting restrictions that its have enacted again within the last six months, or so so think. Anyone should be prepared to say that all of those survive under this new opinion, but I do think it absolutely mixed. The work of voting rights advocates much harder than second election law decision that came down on Thursday was Americans for prosperity versus bondage. The attorney general of California, the courts will again along ideological wines in six three ruling that charity organisations in the state would not have to disk I their there, major donors, citing that mandating companies to release identifying information, would be a violation of the first amendment. So of course, the first matter what was being debated there. What are the arguments on either side, so

is charitable organisations basically argued that this kind of compelled disclosure violated there. their donors first, amendment rights primarily to associate rights on different speech and religion. The first met and protects the right to associate, and the logic of the argument here is that by Taking this kind of disclosure there's going to be, potentially the effect on donors willingness to give money, because they do not necessarily wished to be publicly associated with these organizations, although they may support them. There is also the stability and there was some evidence introduced a trial that donor Susan. then it is our disclosed by virtue of this requirement, may be subject to harassment or reprisal, potentially even threats they take and popular positions or support unpopular causes and all of these effects organisations argued meant that this requirement violated the first amendment. So California, for its part, basically says look. This disclosure Wire meant is actually not a public disclosure requirements. It was a requirement, basically

these charitable organisations doing business in the state of California just report, their major donors to the attorney general of California. Basically, anti fraud and corruption purposes so think about if you're holding so far as a nonprofit, that does credit counselling for low income people, but all of your major donors or credit card companies, like maybe there's some concern that fraud may be a foot and twenty general might want to investigate an organization like that's it. That's the kind of logic that the attorney general at of California offered in defence of this work. I went and one that sort of complicated this case is that, although in theory at least these for confidential disclose To the attorney general? There was a good amount of evidence. The California had mistakenly disclose

based on a number of occasions, the identity of some of the donors that had collected pursuant to this regulation and that that's how some of the harassment that there is evidence of came about you. I think this was seen as conservative core basically sides with wealthy donors. There were some Amoco reefs in this case from, for example, of the way, so you are under way, cp, progressive, liberal causes that also thought that this was a violation of first amendment freedoms, so is this more complicated than it appears at first blush. What's going on there you're right that there was kind of across ideological coalition of advocates, Brace one found agreed jointly by the issue and L B F, the anyplace he beheld, the affright in support of Americans for prosperity. dont, typically see those organizations as fellow travellers on the same side of a case, and I'm not sure, I'm completely understand the decision by the issue you in and out of the earth to file this amethyst brief. So the big con oppressed

here, actually on which the Americans for prosperity heavily relied on. The opinion to a degree that, as well as a case from the late nineteenth fifties and a voice you ve versus Alabama, in which the element The chapter of the end of lazy PETE raised a first amendment challenge to an Alabama water required to disclose its membership lists, and the argument that state chapter of end of life you ve made was weaker. Members are gonna, be in physical danger if they are known in the late nineteenth is now about to be members of her supporters of the end of lacy P and the court did uphold the corpses in that challenge, sided with the end of in this case on the there is a very real threat of palm reprisals, harassment and that their It's not a sufficiently compelling justification. State of Alabama had offered to justify that kind of burden on first amendment rights so The organization in the OECD at least has a track record of taking them fishing- that under some circumstances, compelled disclosure requirements on

additionally infringes speech in association rights it. This isn't some sort of a straight line. From that case, everything there is, of course, an important distinction in the kind of state interests there. be articulate, Alabama, didn't really have California as one but in other contexts the court has credited as compelling, and so you mentioned this- both isn't, isn't a campaign finance cates right on its face. It's about charitable organizations, donor disclosure, so it's not as a technical, at a rate about campaign contributions, but you're right that it is absolutely a campaign contribution or campaign finance case in at particularly poor citizens, United ERA, that in mechanism by which, in the federal system at least we regulate money in politics, is through disclosure, so there we still limit the amount you can contribute directly to campaigns and tax rates there are limitations that remain intact, but there are very few and who knows how much longer the squirrel allow them to stand before the court. always said. Is that robust disk

those requirements are perfectly constitutional onto the first amendment and in fact they do the work but in a constitutionally permissible way, that other kinds of regulations of money and politics said that they were trying to do. But the court found Those justifications weren't sufficient to justify the burdens on speech, writes that these kinds of limitations on contributions and expenditure is imposed since its united, what we understand their sphere of corruption and capture but there's a waiter, address that matters through disclosure, so we're gonna know where money is coming from where it's going and voters can track influence in the political process. ass their votes with full information about, I, whose behalf candidates elected officials, are working, so the court really an and has doubled down on that in several subsequent cases and some of the reasoning of this opinion, I think, calls very much into question how committed the courtiers to those pray statements about the possibility, under the first amendment of compelled disclosure in the campaign financed context, and so

I think that, to the extent that there are opponents of can be financed, regulation who have had disks pleasure in their sights basically said citizens. United, I think there's a ton of ammunition that this opinion provides its going to. We support a number of new challenges to campaign finance disclosure laws to these were the two final cases of the term and important to how elections essentially are conducted in the United States and perhaps therefore a bit more political and possibly partisan. Then some of the other cases, although there were a number of notable cases that were decided this torrential prior to Thursday, there were a lot of readings on the court this term. That said, actually this six three conservative court is more liberal. Then you might have expected were those readings.

two short sighted did those final two cases up and that reading, or is this sixth very conservative court, more liberal than you might have expected. I would say it is more incremental, then you might have expected, so it hasn't gone big in creating upheaval, organ Your changes in the law in a lot of areas, but I do think that has moved, the line subtle way is, and I think that the fact that the conservative court is this is a metaphor. I've used before, but it's clean, We on a path of some sort, and I think the question this, whether its takings, I'm in New York City like his in a desert, taking an express train or are we taking a local train right like the destination, is, I think, relatively clear. Some of its specific citing remains to be seen, but it's going to move the war in a decidedly conservative direction. The weather is gonna, take express written there local train, their think wasn't totally clear and I think this term had a lot of evidence that we are you're gonna, be on the local train examples are there was a big case that was a showed

and between religious liberty on the one hand and algae BT, Q rights, on the other hand and therewith. A real passion about whether this court, that has a very expensive conception of religious liberty, was going to formally announced. Freedom of religion under the constitution was a higher value than any other constitutional value or right. So, whenever There's a clash with something else. Religious exercised went out in the court. Didn't do that. In fact, the current actually unanimously, although with a few different writings, sided with this. Complex social service agency, the challenge to Philadelphia nondiscrimination law that it didn't want to comply with and its ratification of foster parents rate and want to certify. It seems ex couples as foster parents. So the court, including his lips sided with the Catholic Social Services Agency in a very, very narrow opinion. The basically said the court's existing precedent, which was paid

from a religious liberty, but also said the government could enact generally applicable laws that might even burden religion little bed, but in a basketball burden by laws, and we shall have to live together. realistic society to the core purported to uphold that precedent, but to say that it just in apply here and here, because this Philadelphia one question- contain the possibility of exemptions, but they wouldn't Brandon exemption to this agency. The wall was impermissible in that case folding versus the city of Philadelphia, which was the issue of the catholic Agency, whether they had to work the same sex couples and screening and foster parents. The liberals were on board. I think that the waiver that was perceived when the decision came out was that this is Roberts Grand Plan, as chief justice, to make the court feel more legitimate to the broad american public

There are some pretty rancorous confirmation, hearings and now that it has a six, three conservative court does not seem like what is going on. I think that is going on on Roberts part, I think both the kind of rancorous confirmation hearings, the court being at the centre of a lot of political debate right. There are ongoing hearings happening right now, right that binds commission on the Supreme Court is considering the question of Supreme Court reforms. I think I can well, Robert wanting a lot of unanimous or near unanimous opinions to issue from the court may be to take the wind. but the sales of all of that, so I think that probably is driving Robards, I'm not wagered explains. The liberals regions. In a number of these cases to go along with that plan, I mean they're all committed, I think the integrity of the institution, but it just be that they are concerned about other areas of law, the liberals being oppressed process. Even viruses Sonny's tomorrow, just Selina Kagan that their concerned enough about the needed.

together, a coalition of moderate justices for, Your cases that there were go along rather than against scream their dissent. Cost folding could have six three opinion in which the three of them said. The court says it is adhering to precedent really it is fundamentally changing. Our line. Elevating religion to this is sometimes referred to us kind of most favoured nation status, that religious entities and organizations will always be able to get exemptions. From generally the laws and ass a sea change. They could have settled that instead, it they joined the robbers majority in they didn't none of them wrote anything separate. You know we talk about public opinion. Five. Thirty, eight. To what extent are Supreme Court justices swayed by public opinion? they're not impervious to it, you know this when the same waters as the rest of us do not look, there's tons of literature on this. I think that, for what is worth my own view is that they try not

be too far ahead of or to lag too far behind what they perceive to be the broad consensus but they're, not spending a lot of I'm sifting through public opinion data in the way you off her. So I think that they're probably different answers for different This is, but I do think that they inhabit information. systems. Anything different ones, you can see on display just as agreed who gave a speech before the federal society last fall, in which much of the rhetoric really echoed Alot of a Europe wide news. It was clear that he spends a lot of time watching financing. That's true of a couple. The justices may not be true about the sort of more centre, right, justices, the chief justice, not sure about justice, cabin on Justice, Barrett they're gonna do enough it's! It was hard to know, but soldier, this sort of public opinion is obviously coloured by the sort of your mediate eyes. So I think that today send

they. Probably most of them is not all that you have read the New York Times and mainstream media coverage. I think that that cannot but have some influence on them. I think that they probably all try to limit the degree to which influence has done, but I think that none of them can do so completely, nor should they sure giraffe brings up here. The term is over. I think people expected there s justice prior were to retire. We would have received that news this week. Democrats, why, prior to retires of it, you can be replaced while Democrats have a majority in the Senate and Joe Biden is in the oval office. How do justices respond to kind of pressure and what do we expect from Briar over the next year and a half- and it looks at the public statements that he has made, it suggests that he thinks it's really important, both not act politically and not to appear to act politically. So I think there is a chance that the sort of chorus of cries for his retirement this week or at the end of this term, has

and counterproductive, and I don't think that ultimately he's going to decide one way or another. Based on what he hears. Others of urging him do, but I'm bet it's possible has been somewhat counter productive. Every justice things differently about when it's time to go right. I think that some of them quickly. It is fine to decide if you prefer to be replaced, or else equal by a president basic vision, views about the law in the country you share, and I think there are those who suggested all those kinds of considerations are wholly improper and I've been surprised to your briar strike that Can a ladder note recently, I'm not sure in his heart of hearts. If he believes that, if you just thinks it's a moment in which looked like there's something of a prison Faith in institutions anything so important that the court made an institution that the public believe has integrity and acts in a principled fashion, and so for that reason is concerned about police. The objects of departing in the middle of these cries for his

our hand. You know like he saw that Justice Ginsberg waited. You know they were those colleagues were together for many years. I think saw that she desperately we should not be replaced by. President trumpeted course was, and so you think he would take pardon me. The other thing is just as is sometimes they have a close confidante, whom they will sort of asked to give them candid advice about when it's time to go both from the perspective of the country and the court and their own ability to do the job. You not always the best position to assess your fitness for a job like Supreme Court, just as I have seen no signs of any kind of decline and justice prior. So I dont think that there's anyone out there saying you can no longer do the job, but that's something that some happens without a whole lot of warning? So so imagine that those The considerations are at work as well, and it is true, as we expected. If we were in here, an announcement. There was a good chance that we would hear it on the last day of the term yesterday, but that's not an ironclad rule. We could hear

In what remains of this week, we could hear next week, occasionally justices have announced their intention to depart the court within a couple of days after the emperor term, so I wouldn't say that the door has closed this term, but obviously Pierre terms that he's going out and so right now. I think no one is actively expecting to hear from him the next couple of days, but I think it remains alive, possibility, chewed up point during the twenty twenty election. We heard plenty from the left and to some extent, from Joe Biden himself about possible reforms or changes to the Supreme Court, so I have some polling here on lifetime appointments and whether there should be a limited, Termer age limits. That's pretty popular

the Americans are sixty percent of adults, favour term or age limits, with only twenty two percent opposed. Meanwhile, packing the Supreme Court, expanding the size of the Supreme Court seems pretty on popular right. Thirty, eight percent in favour of forty two percent opposed. Does it seem like any of those changes or forms, are likely to come during the german presidency I think that many questions about what's possible, renewed alot, turns on the film us whether it will remain a requirement to overcome filibuster in order to get legislation enacted and you could Bixby the size of the Supreme Court by ordinary legislation right sort of an interesting thing. It feels like batch of require constitutional amendment, but no there's nothing the confusion about the size of the Supreme Court. All you need and be no. If a simple majority was enough, then you could tomorrow Adsum seized Supreme Court, although, as you say, it's not popular in the same way, term limits are popular term. Limits are complicated, you probably would need to amend the constitution to impose term limits than ever.

We agree with that, but there would certainly be vulnerable. The constitutional challenge, other or creative ways. You could structure. You would say you got a limited term, but you remain a Supreme court justice nominally and get the salary, and you just have a different kind of status Mediaset by designation and lower court, but you're not like forced out of the game entirely. Maybe could do that by statute Effie but a man in a constitution, you could certainly due to impose and beating year over, sometimes people now we're talking about even like a fourteen or twelve year term, forcibly we're just as if they went into effect in a prospectively. You couldn't probably kick out the ones. Ready on the court and we ve lost the habit of amending the constitution is not a thing. We have done much of late and I am not sure that term limit amendment is the sort of thing you know what there's always save our fight on going right now about the ratification of equal rights amendment. So I will not say that, as matter kind of constitutional culture, constitutional amendments on the table- but I do think for young people who just haven't seen the cost version amended in their lifetimes. It begins to feel like something that is

but not a reality that doesn't actually get done and lots of being a democracy them in their constitutions, much more freely No, we do. We have by design very difficult amendment process. So I think that, for all those reasons, expansion would be much more achievable. Three ordinary legislative process then term limits, but I think that there are to be a willingness to expend a lot of political capital and at the moment at least I'm not getting the centre. The by demonstration is in in doing that, but me The decisions in this particular section to voting Rights ACT case will change the gravity of that issue, or I will leave it. Therefore, today figure so much Kate thanks for having

Kate Shaw is a professor of law at the Cardoso School of LAW and co host of the strict scrutiny high canst. That's a rap for today. We're gonna be off on Monday for July. Fourth, so expect another five cast on Tuesday of next week. My name is given droop clear budgetary Curtis is on party editing and is in the control room. Alongside our into an M o Reilly. Pendant Stevens is on video editing. You can get in touch as usual by emailing us high costs at five, thirty eight dot com. You can also, of course, treated us with any questions comments. It's got a good use or bad use of pulling that you'd like to suggest for us to do with their. If your fan of the show leave us a rating or review in the Apple pie cast store, Tell someone about us happy July. Fourth, thanks for listening and we'll see, do

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