Transcript for FiveThirtyEight Politics: Conservatives didn't get the SCOTUS they wanted this term
Hello and welcome to the 530 politics podcast I'm Gayle and the US Supreme Court wrapped up its term today issuing too big rulings on whether president trans financial records can be subpoena. And in the case of New York prosecutors the answer was yes in the case of congress the answer was. To be determined. Both rulings were seven to two opinions authored by Chief Justice John Roberts with conservatives Thomas and the veto dissenting. The rulings have been highly anticipated in large part because the answer the question of whether voters will see president Trump's tax returns before the November election. And it appears that the answer to my question. Is narrow so today we're gonna dig into those decisions and other consequential decisions during this longer than usual term. Will also take a look at the role John Roberts is playing on the court and compared the court's opinions to public opinion more broccoli. And you're need to do that is 538 senior writer and legal reporter and nearly tops and about and the idea. You. Let's start we have this specifics. The trop financial records cases. What does the ruling it say about presidential power and immunity. Senator recap for people who haven't been following these cases religiously. This is the result. A link. I am resulting from a couple different attempts to get trucks tax returns at the subpoenas were not to trump himself. They were too its accounting firm and tanks and one of them was from. And three at network prime Perry's house committees. And probably in those cases need some pretty sweeping arguments. About his own immunity from ST each acts press an. In the case involving. You can't investigate me criminally sorry. Take that is the penis and ash. And with congress he was making the argument that I am. Asking for his personal financial records doesn't fall under Congress's oversight power because they are they can conduct oversight. For the purpose of legislating. And this doesn't fill that her S. I and the Supreme Court sad to both of those arguments like basically. Oh that's not how it works. I in the case involving in the arc prosecutors dates and pretty clearly that trump does not get special treatment because he's press. And in the case involving congress base and you know congress does have this power to issues subpoenas for oversight. We he think that the courts to load didn't really consider the separation of powers. Issues in this case well enough basically both sides are presenting unsatisfying arguments so that goes back to the. Our courts for more case. Enter you mentioned that in the case of congress this has to go back to lower courts and it'll be determined there may be going back to the Supreme Court eventually. In the case involving of the district attorney in Manhattan. Does it seem like trumps accounting firm will now have to turn over its financial documents to them. So I think what's going to happen if there's gonna be a little bit more equal. Because in their ruling the Supreme Court did you open the possibility that from late. Throws more arguments at this just based in kind of than normal arguments you're high ads citizen could throw at subpoena. You know it's not clear whether this will hold water especially since the subpoena it's not actually directed against trumped themselves which has been one of the challenges for him all of this that's about it accounting firm. So it's Hartford the state may just burdensome for him parties these documents because he literally asked to do nothing. But I think it's sort of the first order effect would be there's going to be some more delay and he's more equal biting as this gets worked out but our core apple. And then. You know maybe the prosecutors Jimmy Vickers pretty quickly and prosecutors do you actually get their records. Word darkness. Because this was subpoenaed as part of a broader grand jury investigation. And eyes lawyers need pre clear during oral argument. Anything that happens during grand jury investigation used. So the chances that. A the documents actually her over to patent day. Somehow that investigation of twisting it repairs would be made public which actually may never happen that all of that would happen before the election eats. She. So in a practical sense. Whether or not NC president on tax returns. No unless there's a leak eyes. Right and is currently I mean you know anything is possible that would be. It's pretty embarrassing her aunt's so I would seem that there to EU. What they can't make sir that those returns to eke out to. Newspapers for T. What the Supreme Court did today in part is set up a standard for you know. The circumstances in which congress can subpoena the president's Brecher its. What did it. What kind of decision did it come to you in. You know when congress can subpoena the president's documents and when it's it's really overstepping its bounds as the oversight. Branch of government. So. Eat out some pretty specific. Considerations. For at our courts and what are basically saying EU's you know it's not insignificant. That you are asking. That congress is asking for the president's personal records. And you have to have a good reason to do it. And you have to make sure that this is not over we rot you're not asking for wage more. And you have to basically find a balance between respecting congress' legitimate oversight powers which. You know may include subpoena saying personal documents of the president. And not just quietly. Using Nance acts. You know what again. Fishing expedition attempts to go after the president asked for Lee Mort and you need and Latin you know sort to take a long time. So that's the lower courts are going have to consider. Annie does suggest. And unions all have to play out in the lower courts will see it happen. But that the strong message Supreme Court use you know. Congress has oversight power were state that Dan. By it's not women less and you know they're really asked to peace and balancing. What's necessary. And once each. Both of these decisions. Were. 72 opinions we have only Alito and Thomas the most conservative justices on the court. Dissenting. Was that kind of split surprising. I'm surprised that that actually. Obviously eaten cases involving. The president personally and this Supreme Court. You know has historically tied. You know thinking about cases involving the Watergate heats. Wear them. Excellence harassment lawsuit against Bill Clinton the court really wants to come out with you know. Full show were on the same page Baptist because those cases here. That being said I was really expecting at least one of these rulings to be fired for work is because the house at the court is right now. And united we can talk a little more out what this term looked like for corsets and cabin on. Our attempts to you appointees. But I think it's particularly significant that both of them were in the majority. In these cases speak eyes. You know eat eat. Means something to act on its own nominees saying basically. You know we don't high it's extremely expansive. Vision of presidential power. Or art or. Yet let's dig into what we weren't about to jurisprudence. Kavanagh and searched this term. So we saw a little bit of how they faint. Last year at last term. Although arguably this year's cases were significantly more consequential and in greater numbers. So what did what did we weren't immediately let's start with gore searcher was perhaps more surprising event capital. Yeah that. Court Krstic is is a little more. Interesting this term at least if year. Answered looking deeper for people who surprised. So. Term link corset she really tapped. Carving out its reputation as someone who's at tax journalist who really cares about figuring out exactly what the loss and it's. And that came out in especially strongly. In a ruling. Involving this question of whether sexual orientation. Is covered under title in key Civil Rights Act whether I am. The terms acts includes sexual orientation and they're more and plain discrimination used Bard on the basis app sexual orientation and gender. And this is very easily case weird you could imagine. Conservatives saying now. You know this is really an an old her reading of this holidays it's taxpayer. About women. I'm not talking at sexual orientation. Hand you know this decade. Achievement expert get rates with an app that that is how it happened both corsets Robert's rules along with the four liberals. That sexual orientation EU's covered. For the purposes. Employment discrimination and course a trip the opinion which is a big deal that he was the most junior justice. I'm on bats. In act majority. And he basically said you know I am I am reading this opt. Carefully and I am looking at the words and these words mean that sexual orientation is comfort. And then he did that again and it today. In a 54 ruling where he actually joined the liberals aren't any conservatives in the majority. Involving a case about hands in Oklahoma and that case to he basically said no. We're looking at the language of this contract that the US government need wit that creek nation. And that contract is pretty clear that they act as land and working in sports that can't act. And so you know I think it's worth noting that course excuse from the west. And this is a place for act I kind of love to point out like geographic diversity can that are on the Supreme Court because courts its title lot at Indian markets is. When he was a chads on the tenth circuit. And so he tends in general to be more sympathetic to that claims. You know let's try this. Win every argument without them. Landon and contracts so you know I don't think it was a terribly surprising ruling for corset but the way he did it. Was very much in mind and wit this. Him act text list. I'm so I think course which is gonna continue to. You know I mean I don't want to oversee eight. How much of a surprise he is for the most part he is a pretty it's man you know solid member of the conservative bloc. But I think we will continue to see he's kind did you know maybe a little surprising maybe a little idiosyncratic. Rulings where he breaks with the conservative bloc and he uses this textual list offering to tease out. And when it comes to a cabinet are you mentioned that perhaps it's a surprise day he'd joined roberts' court's it's and the liberals in these cases involving. President Trump's financial records. Were there any other cases this term where we learned. A significant amount about his jurisprudence that we didn't already now. I now like if you're a legal nerd there's always more to learn from. You know every term where we get more opinions and written test to show more about how they think but at a very high apple I think. But Wheeler an attack happened on its terms that he's a pretty solid conservative. And now. The fact that he ruled with the majority in the cases involving trucks tax returns is definitely know Ricky. But it's not like he was the tie breaker in the act place at two other conservatives in the majority and so you know I think Cabot on it's just kind it. In a lot of ways what people expected him to be very solidly conservative. Notables the voted. Onions than with the conservatives indicates about abortion I'm sure talk about. Which you now an aide. Is something that I think was was pretty predictable based on his history but it's still noteworthy. That he doesn't seem sympathetic to abortion rights generally weak mr. So we've been talking about too conservative justices who at times have split wins bearer. Conservative colleagues on the bench. What are some of the divide that we saw a month's liberals this term if there were. Yeah. It's really you know every focuses on the conservatives and that's for good reason community they really happen more on the core rate now. Interesting too because you know conservatives they don't vote in lock step they don't all think the same way. And ice in particular this term with some cases involving I'm religious liberty. People listening name he surprised to hear that the east soccer the contraception in eight. He is still continuing. A lot of legal cases about the contraception mandate. From Affordable Care Act and this group or hurt one's term that was basically out on whit Ayers and exemptions that the track. Administration. Act. For religious players ever Kosher. And on Breyer and Kagan who work but part of the parole block. Voted with the conservatives in the case and they also noted that the conservatives Ian there slippery case. And Alina heat in. Continue to write and at least one other opinion about her her desire to respect and she's really cart mean for herself. As someone says that precedent should really matters to the court. I'm attempts to call out other justices. She thinks they're not respect precedents which. Still you know I think like. Those divides are worth watching to be kind. This is a very divided quarry and any place where there's compromise is no wearing knee. Answer me prior and eat in seem willing to come over Angelina conservatives at least sometimes. It's it's. Now the Kennedy. Is off the bench and walking act. We whole host of cases that the justices considered this term is it fair to say that. The court has be calm more conservative now that Roberts is the swing justice. So. I wanna say first of all we are still leading force in theory important. That will help us analyze exactly what was happening with all the justices ideologically this term. Where they are on the ideological spectrum can't promise you agree with each other's so. You know TVD on that check the site a hot stories on that next week. But I think is fair to say that he be conservative revolution. That. You know conservatives were excited about and liberals were kind of Reading it when Kennedy was replaced by Kavanagh -- nine year yet. I'm there were definitely some significant. Conservative decisions but you know in some at these very important cases. That we talked about a little more in a bit. I'm Chief Justice John Roberts in particular was holding the line against the cord. Tiki. Propped rates. And what were some of the keys or treason which he did that. Yes of what the big cases this term ways and abortion case. Or involving outlaw in cuisine and that was basically identical to a lot that was struck down. In 2016 by the Supreme Court as abortion restriction. And I'm. Well I think. The people in the pro in the anti abortion movement and the conservative legal movement were kind of hoping you know yes there is this precedent from four years ago. By me he can make an argument did make an argument that this law is different enough that it should get three. And you know maybe. Supreme Court with its new conservative majority will be willing to unity yes Applewhite friend pat precedent that was fairly recent. I'm and Chief Justice hunt Roberts. Two in the liberals in that opinion he didn't write the majority opinion that he did rated concurring opinion where he basically said. I didn't agree with the ruling in 2016 and I don't agree with it now. But. A precedent to precedent the sliced the same so we're striking. And now I think on the one hand not a huge surprise for the Supreme Court say it not be eager to you you know. Overturn or dramatically but wait for something neat item four years ago that's not a good look for the Supreme Court in a lot of ways. But. Eight was a sort of signal that. John Roberts at least es not willing to move as fast to the right. Adds a lot of people in the conservative legal and probably would like to. In fact actually saw on scotus blog this morning the statistic that John Roberts has sided we have the majority. Opinion in 62. Out of 64 cases this tour. So. He is you know often refer to your house the swing justice or you're gonna have a 54 decision Beebe it's not surprising today he's the one who's joining the majority. Is that. High number you know almost 100% of the time. He is on the deciding block on the court is not unprecedented and and why is he doing. If it added is it I guess could you say its intention. I wish I had like window into John Roberts and could tell you why he's Dick didn't exactly. Ended its. Billion usual opt to have an individual justice in the majority matched. I'm looking into this more with our editor our honor and we'll have more about this am in peace next week. But we looked at it yet and basically you know Kennedy did approach. That. Apple of being in the majority a few times he was the swing justice and it seems like Earl Warren who is it Chief Justice back in the fifties and sixties. They also hats or come close to that. When he was Chief Justice. By it certainly unusual. It mania unprecedented. And I think it just signals. You know John Roberts really has control of this court. For now and he's trying. You know to sort it. Happen it's balancing act. He you know he's still a very conservative guy. I think it would be mystique to say that this term is evidence that he's you know. Change that we he thinks ideologically. I mean when we get the and still. We don't really have any evidence that he's becoming dramatically less conservative Richard. He's a class of rulers. And they think what it does mean eased that the court is very polarized. Were in an extremely polarized political moment. We're. You know the quarry use. Correctly perceived as having image or conservatives and weird Democrats are out about pat. You know it was there was a significant amount of tock quirk acting during the democratic primary and whether that actually pull off is a whole other discussion. But I. L lake this court has been in the news and discussion at changes to the Supreme Court had been in the news in ways that. John Roberts probably does out. And so. Being able to. Issue. Sort of as a whole group of rulings that lake. Don't really move outside public opinion. And appear kind of balanced between liberal in conservative. Is good if you're concerned about preserving idea that the Supreme Court. During their countries hearings. And that. You know you can trust these people who have lifetime appointments to you not be making decisions that art chest in line with fair political beliefs. And so you know with the cat got that obviously clicked on roberts' my friend and I don't know exactly why he's doing. These things he does have a reputation for caring about the institution the court and I think this term makes a lot of sense. If you see him at someone. Who is trying to kind. Preserve the court's reputation. In a moment and he now it it it is a little bit more fragile and it has been passed. It doesn't back in and out of it sells. Fly in the face of the idea that there is a sort of correct interpretation of the law that justices are supposed to you. You know spell out for us in their decisions if if presumably. A Chief Justice could be. Making some decisions. With the goal of matching public opinion like is it shouldn't that make. Last in this facade. Like there is a correct way to interpret the law and justices are just doing that correct thing. So you're question. I wouldn't be here that I do not think it John Roberts is Blake. Going to. By 38 or are other you know like perusing the polls to try to figure out exactly where public opinion is on giving issues he has. The and that pretty ski thing about social science it and general Ian the past so. Oh yeah we talked about this during gerrymandering. Sociological. Gobbledygook. Yeah athlete I don't think the guy's a poll watcher. Not sure he reads the site. But. I think in general lake. That's an argument you can make and I think there are probably conservatives who are out there. Thinking to themselves. A shot Roberts is supposed to be conservative and look. All the other conservatives went one way on the abortion ruling and are on the ruling involving doc now we're. Another big case where Roberts. Rule with the liberals to use it at the tram administration basically not followed the correct process. In trying to ban and the dock a program. And so. That I mean you can totally make the argument. That I am eighties it is it stealth political. Team technique. Into account even the equally when you're making it decisions. On hand. I don't sought anything this term that he's. Really you or rather cool. From. Roberts you know the idea that he would follow precedent in the abortion case lake that was a real Leigh. Aggressive move to ring basically identical walk to the supreme court for years after that he had or decided it. You know he might have ruled differently on another portion. And with doc it does sort it seemed to be important. To tell the transit administration that C really plant get away with. But completely ignoring the rules and procedures that the executive branch is supposed to follow win they are. Changing policies are issuing policies that act people's lives and serious ways so. You heard in that case. Base that herb Robertson resent that yes you know the top administration Karen and docket if it wants to it is did the wrong where. Right right exactly and the trumpet ministers in the please just follow the rules which is the kind of subtext of Roberts Israel does not keep his liking and no doc has great program and it should continue and an eight doc. So you know. About that on the other hand I mean this is this is it debate that's been going on for a long time out. Whether the Supreme Court is a political institution. And whether the Supreme Court is responsive to public opinion and whether it should be. And you know I think this is something that. Roberts isn't unique position. Being at this utter the words. I'm being the Chief Justice whose unit whose name is on the legacy at an escort so you know he sort it out like. How to write what want to be perceived as the Chief Justice he acts. I and also being in this you know moment where ideological polarization the other justices. Really strong. And we're conservative. Lock I think we stop this term. We'd go pretty far to write it Roberts would go wrong. And I'm sure there are people who are thinking you know cheese eaten trying to present status you know in center. Having all these rulings on the left and right that he's actually making political decisions to try to make the court seem political. Can you know I think its art. And meet EU he's doing because he sees that and it's what the Supreme Court needs to be stopped and also. Needy he's doing that still it. Three years from now and another abortion restriction that the court has not just rule on comes back to them. Key has leeway and credibility to say. OK well three years ago you know ice that I college press and ends duels army to act but in this case there's no precedents and witnesses that supports restrictions OK in an act. I think that supports restriction use constitutional. Aunt meet Easter happy cat. And track record. Collate to help. Now something it would be more controversial. Eat less controversial in theory you know I kind of speculating had no idea this would actually thinking that these are the kinds of considerations that I think are on the mind of someone who has been appointed to the supreme court for light and presumably. He's thinking forward to you a lot more terms and justice. Is it fair to call. John Roberts the most powerful army be the second most powerful person in America given the dynamics that you've laid out here. He's one of the most powerful people in America right now for sure and Anthony Kennedy was in this position for a long time to. Met. The win you have one person on the court who is sort of consistently breaking ties. That person as a tremendous out of power and that can only rely on things that are brought to them. So it's not like John Roberts can decide that he wants to start weighing in on anything that he thinks it's a problem or anything it's interesting to him. But yes he is he's an incredibly powerful Chief Justice. And you know I think it's gonna be really interesting to see what happens in future terms win. It's not an election year and you know. There that conservatives. And liberals on the courts are continuing to hang it passed out where they are. And it's ideological divide that's had more time to heartened. You mentioned that. Of course the Supreme Court is not entirely making decisions in a vacuum and that. Public opinion cannons and lies does influence the court and also. You know whatever decisions the court makes have to function in a world where public opinion does exist so I know you've crunch some of the numbers. This tarmac how often did their decisions lineup where is the majority opinion in America. Yes why indeed on this for some of the highest profile cases in answer people there are lots of cases that are sort out more like obviously important legal issues that are not. But some researchers this year. Asked series of questions that where it designed to actually figure out how Americans feel about the specific issues in big Supreme Court cases which is pretty cool because I'm. You know having fallen one place and having designs he specifically response to the Supreme Court cases something that. And when it to one of the researchers who designed that she's at that when she got results back she was thinking you know all of this is interesting ties. Public opinion basically win in a liberal direction. Arnold why the news. Questions not all of them but significant numbers span and you know definitely he. Doc the public's going to keep dock pad not thinking traction vehicle to get rid of it. I and a portion. And what we see. At the end of today is that the Supreme Court actually on the side as public opinion in most cases not all of those cases there are few exceptions. But. You know this is not. Lake it was upbeat terms but. Lee it's not gonna be a hugely controversial. Term at least republic is concern. And you know it doesn't make me wonder if this is gonna take that we the sales of some that calls for court packing beacons. Especially for liberals this commitment really disastrous term and it is much less disastrous. A lot of people work a lot. I. One thing and it didn't quite attract so much partisan rancor by it is interesting especially for us here at 538 given the name of our site. Was a decision about how. Delegates to the Electoral College or a laughter is apt Electoral College. Have to vote and whether or not they can the reprimanded for voting. You know arrow for being a faithless elector essentially voting against the person they were surprised to cast their report. How did battle come down it. So that actually lake a rare high profile decision where all the justices were basically on the same page. And they'd say yeah. It's okay for states to say electors you active you know you have to vote for it the person mostly Iran. And it was interesting. To see. That that ways. A creative. Moment of unity because. You know as we talked. I cast the foreigners or real talk again. I'm issues around election law. Are often. Quite polarizing. But it seemed like this was one we're actually the supreme justices Supreme Court justices were pretty much. All right well let. Leave things better and I look forward to you were seeing the rest of the data once you question and rated. Think that your adding Alon. My name is Gail enter Tony chow is in the virtual control room you can get in touch by emailing us at pod cast at 538 dot com. Can also of course greeted us with questions or comments. If you're a fan of the show Revis a rating.
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