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Why this Supreme Court term was so unusual

From landmark decisions on immigration and LGBTQ protections to virtual oral arguments amid the pandemic, the Supreme Court’s recent term was certainly one for the history books. Amna Nawaz talks to Paul Clement, former U.S. solicitor general under President George W. Bush, Neal Katyal, former acting solicitor general under President Obama and the National Law Journal’s Marcia Coyle for analysis.

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  • Amna Nawaz:

    From landmark decisions on immigration and LGBTQ protections, to virtual oral arguments amid the pandemic, the Supreme Court concluded a term last week that is certainly one for the history books.

    We take a deeper look into the Roberts court and its blockbuster term with Marcia Coyle, chief Washington correspondent for "The National Law Journal," Paul Clement, former U.S. solicitor general during the George W. Bush administration. And Neal Katyal, he served as the acting solicitor general under President Obama.

    Welcome to you all. And thank you for being here.

    Neal and Paul, we should point out, between the two of you, you have argued almost 150 cases before the court.

    Neal, I'm going to start with you, because I want to get a sense of how you're looking back on this term.

    Earlier in June, there was a sense that this is a court that's leaning actually quite liberal. There, within a couple weeks, they ruled workers can't be fired for being gay or transgender. They stopped President Trump's effort to end DACA. And they struck down a restrictive abortion law in Louisiana.

    How did you see that string of rulings? Was that an outright win for progressives?

  • Neal Katyal:

    Well, I agree that there have been an outright number of wins that progressives have had, the tax returns cases, DACA, the LGBT cases, the Louisiana abortion case.

    In all of them, Donald Trump lost. And I'm not aware of another president, outside of Richard Nixon, in our lifetimes and perhaps even beyond who has fared worse at the Supreme Court.

    But I really think of it that way, is much more about serious losses for Trump than I do about the court turning progressive or liberal, which I don't think is true.

    Paul and I both know this. We both represented presidents in the Supreme Court. It's pretty hard to lose if you're representing the president. You got to kind of try. It's like failing a class at Yale. You got to work at it.

    But, here, they have managed to lose a lot. And I don't think it's really as much the fault of the lawyers, but really outlandish positions by the Trump administration and outlandish process by the Trump administration.

    And so what look like liberal results are really just kind of basic rule of law results. And I will point you in particular to the tax returns cases, in which President Trump's own appointees totally rejected his position of absolute immunity.

  • Amna Nawaz:

    Paul, what's your take on that?

    When you look at those particular string of rulings, how did you assess them?

  • Paul Clement:

    Well, I think that, on a number of these cases, you really do have to look at the context of what the court is specifically wrestling with.

    Those tax return cases were very unprecedented cases. And I think, in some respects, it is not that unprecedented for a president to lose big, even with his own nominees, when it comes to executive power. President Clinton sort of famously lost Clinton against Jones 9-0 and lost two of his nominees along the way in that case.

    So I do think it really depends a lot on the nature of the particular issues. And I think that, if you look two weeks ago, before the end of the term, it was looking quite liberal. But, by the end of the term, there were a number of religious liberty cases in particular that kind of made it a much more nuanced story in the end.

  • Amna Nawaz:

    And I want to get to those in more detail in just a second.

    Before we do though, Marcia, I have to ask you. When you look at the abortion decision, for example, in that case, there were four liberal justices who voted to strike down the law. And it was Chief Justice John Roberts who sided with them.

    Talk to me a little bit about the role that Roberts has played on this court. And, at the same time, we should mention he had a very full plate. He was also presiding over the impeachment proceedings.

  • Marcia Coyle:

    That's right, Amna. It was an extraordinary term on many levels.

    But, as far as John Roberts goes, I will take the maybe 30,000-mile view of the term and say that this was a term that began with a number of cases that were fraught with political and partisan implications. And I think the Supreme Court emerged unscathed by or untarnished by either of those because of John Roberts.

    He was able, by forming cross-ideological majorities, to steer the court through those cases, and to sort of confirm what he has been trying to tell the public in some very rare public statements, that the court is an independent institution.

    Certainly, a number of conservatives did hope that, with the confirmation of Justices Kavanaugh and Gorsuch, that there would be a rock-solid conservative majority on the court. And that is not the case.

    It really does depend often on the nature of the cases that come before them. But I really think, if you wanted to look at winners and losers in the term that just ended, you would have to say that the winner was the U.S. Supreme Court, because it did emerge unscathed from so many of those cases that could have painted — if there had been 5-4 decisions in the normal ideological split, it could have been painted as a partisan institution.

  • Amna Nawaz:

    Well, Paul, I want to get back to some of those cases you mentioned involving religious freedom, because there were a few.

    And there seemed to be somewhat of a trend when it came to how those went. There was one shielding religious schools from lawsuits on employment discrimination, another one upholding the Trump administration rule that employers can deny contraceptive coverage on religious or moral grounds.

    When you look at the body of those decisions, what was the message you think the court was sending?

  • Paul Clement:

    Well, I think adherence of religion and people trying to vindicate rights to religious liberty did incredibly well in all of those cases.

    And in every one of those cases, they got the vote of Chief Justice Roberts. Some of those cases were more in the 7-2 department than the 5-4 decision. One of the most consequential, the Espinoza case about school choice and the role of state constitutions in limiting school choice, I think was a 5-4 decision and a big victory for religious liberty.

    So, I do think those cases underscore that John Roberts is not a liberal or even a moderate when it comes to some issues. And I think it really depends on the nature of the issues that come before the court in a particular term.

  • Amna Nawaz:

    Neal, what about you? When you look at those specific cases involving this one issue of religious freedom, which we know is very important to the Trump administration, how do you look back on this term?

  • Neal Katyal:

    Well, I think Paul's absolutely right. The religious freedom cases show the conservative, so-called conservatives won a lot.

    And I agree with him that you have to look to the overall context. It's just the number of cases here in which the Trump administration position lost is pretty extraordinary.

    And so Marcia puts it better than me when she says, the Supreme Court is the winner in last term. I would say a footnote to that is, I think the rule of law was also a winner. I mean, our country is so bitterly politically divided right now.

    And the Supreme Court, really, and because of Chief Justice Roberts' ability to steer the court, really points to a different way, a way of mutual respect, a way in which we can listen to those from the other side and be the — forge agreements with them.

    It was really, I think, a majestic thing to behold. And it's not a liberal thing. And I don't think the chief justice is some liberal. The best evidence of that is, at 2:00 a.m. this morning, he cast the fifth vote to resume the federal death penalty, when the litigants didn't even have a chance to brief and argue all their challenges.

    So I think everyone should be careful when they use liberal or conservative terms with respect to the court.

  • Amna Nawaz:

    Marcia, as we reported earlier, Ruth Bader Ginsburg is back in the hospital. Obviously, there have been some health concerns among the Supreme Court justices.

    As you look ahead to the next term, tell me a little bit about how we should be thinking about some of the cases ahead and some of the general concerns about the health of those justices.

  • Marcia Coyle:

    Well, I think, Amna, when you look at the ages of some of the justices, you have Justice Ginsburg now 86, I believe. You have Justice Breyer 81. Several other justices are over 65 and are in that age group that is most vulnerable to the COVID-19 virus, that you have to take pause and wonder if, next term, there could be some changes in the court's personnel on the bench.

    So that may very well be something to watch closely. I know that the Trump administration is hoping once again to make the court an issue in the presidential election.

    Right now, though, I don't think that is going to figure into how the justices deliberate at all. Don't count Justice Ginsburg out. She is — has been remarkably resilient.

  • Amna Nawaz:

    It is a court to watch.

    And, of course, I'm sure we all wish Justice Ginsburg a speedy recovery.

    That is Marcia Coyle, Neal Katyal, and Paul Clement.

    Thanks so much for being with us.

  • Marcia Coyle:

    My pleasure.

  • Paul Clement:

    Thank you.

  • Neal Katyal:

    Thank you.

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