Who hello and welcome to the five thirty politics. Podcast fine Galen undertook the? U S Supreme Court wrapped up its term today, issuing too big wings on whether President trumps financial records can be subpoenaed and in the case of New York. Secures the answer was gas. Case of Congress. The answer was to be determined. Both rulings were seventy two opinions, authored by chief Justice, John Roberts with Conservatives, Thomas and a veto dissenting the role have been highly anticipated in large part, because they answer the question of whether voters will see president trumps tax returns before the November elections, and it appears that the answer to that question is no. So today we're gonna dig into those decisions Other consequential decisions during this longer than usual term will all.

Take a look at the role John Robert is playing on the court and compare the court's opinions to public opinion. More broad, and you want me to do- that- is five. Thirty, eight senior writer and legal reporter Amelia Thompson Devout Hamley area, hey Galen. Let's start with the specifics of the Trump Financial records cases, What does the ruling it say about presidential power and immunity, yeah To recap for people who haven't been following these cases religiously, this is the result of a lengthy series of litigation resulting from a couple different attempts to get trumps tax returns to the subpoenas, we're not to trust himself. They were to his accounting firm and his banks, and one of them was from a district attorney in.

Happen and three of them were from various house committees and Trump in those cases, made some pretty sweeping arguments about his own immunity from investigation. As president, in the case involving the newer prosecutor, he basically said- hey. While I'm president, you can investigate me criminally sorry, take those subpoenas and thrown in the trash and with Congress he was making the argument that asking for his personal financial records doesn't fall under congresses oversight power because they can conduct oversight for the purpose of legislating, and this doesn't fulfil that purpose. And the Supreme Court said to both of those arguments like basically, no that's not how it works. In their case involving the New York prosecutor, they said pretty clearly that Trump does not get special treatment because he's president

and in the case involving Congress, they said you know, Congress does this power to issue subpoenas for oversight. We think that the court's below Didn, 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 lower courts for more, litigation in the case involving the district attorney in Manhattan? Does it seem like trumps, accounting firm will now have to turn over his financial documents to them. I think, what's going to happen, is there's gonna be a little bit more legal fight because in their ruling, the Supreme Court did leave open the possibility that Trump

would throw us more arguments at this just based in kind of that than normal arguments that you were, I, as a citizen could throw at a subpoena. You know it's not clear whether those will hold water, especially since the subpoena is not actually directed against Trump himself, which has been one of the challenges for him in all of this. It's about his accounting firms. So it's hard for him to say that you know this is really burdensome for him to produce these documents, because he literally has do nothing, but I think the first order effect will be. There's gonna be some more delay. There might be more legal fighting, as this gets worked out at the lower court level and then made

The prosecutors you'll be back, was pre quickly in the prosecutors. Do actually get the records, we're not gonna, see them, because this was subpoenaed as part of a broader grand jury investigation and, as the lawyers made pretty clear during the oral argument, anything that happens during a grand jury investigation is private, so the chances that aid the documents will actually be turned over to the Manhattan D, a and b that somehow that investigation will move to a stage where those would be made public, which actually may never happen, that all of that would happen before the election is vanishingly unlikely. So, in a practical sense of whether or not we're going to see president trumps tax returns, no almost

a leak. I assume right and if there were a league I mean you know anything is possible. That would be a pretty embarrassing for finance, so I would assume that they're gonna do whatever they can to make sure that those returns do not make it out into the newspapers or on tv what the Supreme Court did today in part. Set up a standard for the circumstances in which Congress can subpoena the president's records? What kind of disease did it come to in when Congress cans you, know the president's documents and when it really overstepping its bounds as the oversight branch of government

The faint laid out some pretty specific considerations for the lower courts and what they were basically saying is it's not insignificant. 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 overly broad, that you're not asking for way more than you need and that you have to basically find a balance between respecting congresses, legitimate oversight, powers which you know may include subpoena and personal documents of the president, and not just wildly using this. As you know, a kind of fishing expedition attempt to go after it

president ask for way more than you need and take a long time with it. So that's what the lower courts are going to have to consider, and it does suggest I mean you know this- will all kind of have to play out in the lower courts and will see what happens but that the strong message in the Supreme Court is Congress. Has this oversight power we're going to state that again by its not limitless? Both of these decisions were seven. New opinions with only a leader and Thomas, the most conservative justices on the court. Dissenting was that kind of split. So prizing yeah. I was a little surprised by that. Actually, obviously, in cases involving the president personally, the Supreme Court has historically tried to be unanimous. You know, thinking about cases involving the Watergate tapes or a sexual harassment lawsuit against Bill Clinton. The court really wants to come out with

full show of were on the same page about this, because those cases are really big deal. That being said, I was really expecting at least one of these rulings to be five forward. Just because of how split the court is right now, and you know, I think we can talk a little more about what this term looked like. Four Gore such Ann Cavanaugh, who are trumps to appointees, but I think is particularly significant that both of them were in the majority in these cases, because it means something to have trumps own nominees, saying. Basically, we don't buy this extremely expansive vision of presidential power that you are arguing for you let's dig into what we ve learned about the jurisprudence of Cavanaugh and go such this term, so we saw a little bit of how they think last term, although arguably this year's cases were significantly more consequential and in greater number

So what did we learn? And maybe, let's start with Gore Censure- was proud, more surprising, then Cavanaugh, course judges is a little more interesting, this term, at least, if you're looking for people who surprise. So I think this term gorse, it's really kept carving out this reputation as someone who's at textual, is to really cares about figuring out exactly what the law says and that came out especially strongly in a ruling involving this question of whether sexual orientation is covered under title. Seven of the Civil Rights ACT, whether the term sex includes sexual orientation. Therefore, employment discrimination is barred on the basis of sexual orientation and gender identity. You know this is very easily a case where you could imagine the conservative saying now

You know this is really an and over reading of this law, when they say sex they're. Talking about women are not talking about sexual orientation, and you know this big achievement for gay rights would not have happened. That is not what happened. Both Corsica and Roberts ruled along with the four liberals that sexual orientation is covered for the purposes of employment, discrimination and course toward the opinion, which is kind of a big deal, because he was the most jobs you're justice in that majority? And he basically said I'm reading this law carefully and I'm looking at the words, and these words mean that sexual orientation is covered, and then he did that again a bit today in a five four ruling where he actually join the liberals and there weren't any conservatives in the majority involving a case about indian lands

in Oklahoma and in that case too, he basically said nope we're looking at the language of this contract that the? U S, government made with the creek nation, and that contract is pretty clear that they have this land and working to enforce that contract. And so you know, I think it is worth noting that Gore such is from the west, and this is a place where I kind of love to point out, like geographic diversity can matter on the Supreme Court, because course, which had a lot of indian law cases when he was a judge on the tenth circuit. And so he tends in general to be more simple. To the claims of tribes when they're making arguments about landed and contracts. So you know, I don't think it was a terribly surprising ruling for Gore such but the way he did. It was very much in line with this sort of idea of him as a texture

As you know, I mean I dont want to overstate how much of a surprise he is. For the most part, he is a pre solid member of the conservative block, but I think we will continue to see these kind of idiocy Craddock rulings where he breaks with the conservative block and he uses this time. Choice frame to do so and when it comes to carbon. Are you mentioned that? Perhaps it's a surprise that he joined Roberts courses and the liberals in these cases involving president trumps financial rat words, were there any other cases. This term, where we learned significant amount about his jurisprudence that we didn't already now

if you're a legal nerd, there is always more to learn from every time where we get more opinions and brought the justices show more about how they think, but at a very high level. I think what we learned about cabinet this term is that he's a pretty solid conservative and the fact that he ruled with the majority in the cases involving trumps tax returns is definitely really noteworthy, but it's not like he was the thai breaker. In that case he had to utter conservatives in the majority with him, so I think cabinets just kind of in a lot of ways. What people expected him to be very solidly. Conservative, notably voted with the conservatives in a case about abortion, which is

something that I think was pretty predictable based on his history but is still noteworthy knew he doesn't seem sympathetic to abortion rights generally and we we found that out this time. So we ve been dragging about too conservative justices who at times have sport with their conservative colleagues on the bench waters of the divide that we saw amongst liberals this term. If there were any everyone focuses on the conservatives and that's for good reason. You know they. They really have the power on the court right now, but

we also interesting to, because, just like the conservatives, they dont vote in lockstep. They don't all think the same way, and I saw that in particular this term, with some cases involving religious liberty. People listening may be surprised to hear that the saga of the contraception mandate is still continuing on their been a lot of legal cases about the contraception mandate from the affordable CARE Act and the Supreme Court heard one this term. That was basically about whether some exemptions that the trumpet

in a situation had put in for religious employers, were kosher and brighter and Kagan, who are both part of the liberal block, voted with the conservatives in that case them, and they also voted with the conservatives in another religious liberty case and Alina Kagan continue to write, and at least one other opinion about her desire to respect precedent and she sort of really carved out a lane for herself. As someone who says that precedent should really matter to the court and sometimes to call out other justices when she thinks they are not respecting precedent sufficiently. So those divides are worth watching too, because this is a very divided court and any place where there's compromise is noteworthy

certainly Briar and Kagan, seem willing to come over and joined the conservatives at least sometimes on pretty high profile cases. I wanna talk a little bit more about some of the consequential cases of this term and John Robert role in particular. Now that Kennedy is off the bench and looking at the whole host of cases that the justice has considered this. Is it fair to say that the court has become more conservative now that Roberts is this injustice. I want to say first of all, we are still waiting for some very important data that will help us analyze exactly what was happening with all of the justices, ideologically this term, where they are on the ideological spectrum and how much agreed with each other so tbd on that check the site. I have some stories on that next week, but I think it is fair to say that the big conservative revolution that can,

urban lives were excited about, and liberals were kind of dreading when Kennedy was replaced by Cavanaugh is not here yet there were definitely some significant conservative decisions by in some of very important cases. Chief justice, John Roberts, in particular, was holding the line against the court, taking a kind of abrupt right swing What were some of the key situations in which he did that? Yes, the one of the big cases, this term was an abortion case involving a lie in Louisiana that was basically identical to a law that was struck down in twenty. Sixteen by the Supreme Court is an abortion

restriction- and I think the people in the anti abortion move- men and the conservative legal movement were kind of hoping. You know. Yes, there is this precedent from four years ago by maybe we can make an argument or they did make an argument that this law is different enough, that it should get through, and you know, maybe the Supreme Court with this new conservative majority will be willing to take a step away from, that precedent that was fairly recent and chief justice, John Roberts, during the liberals. In that opinion he didn't write the majority opinion, but he did write a concurring opinion where he basically said I didn't degree with the ruling and twenty sixteen, and I don't agree with it now, but a precedent suppress it in this law is the same. So

We're striking- and you know I think, on the one hand, not a huge surprise for the Supreme Court to not be eager to overturn, are dramatically move away from something they decided for years ago. That's like not a good for the Supreme Court in a lot of ways by it was. This sort of signal that John Roberts at least, is not willing to move as fast to the right as a lot of people in the conservative legal movement. Probably would like him to actually saw on Scotus Blog this morning. This statistic that John Robert has sided with the majority opinion in sixty two out of sixty four cases this term, so he is often referred to as the swing justice or you're gonna have a five for decision baby. It's not surprising that he's the one who's joining majority by is that high number? You know almost one hundred percent of the time he is

the deciding block on the court is unprecedented, and why is he doing? That is it? I guess, could you say it's intentional well, I wish I wish I had window into John Robards mine and could tell you why he's doing it exactly needed. It's really unusual to have an individual justice in the majority that much I'm looking into this more with our current editor Laura Browner, and we will have more about this in a peace next week, but we looked at it a bit and basically you know Kennedy did approach that level of being in the majority a few times while he was the swing justice and it seems like Earl Warren who was the chief justice back in there if and Sixtys may also have sort of come close to that when he was chief justice by it- certainly unusual. It maybe unprecedented

I think it just signals that John Roberts really has control of this court for now and he's trying to sort of have this balancing act of he, you know he's still a very conservative guy. I think it would be a mistake to say that this term is evidence. That

changed. The way he thinks ideologically, I mean when we get the data, it may show that he's moved to the left a little bit, but we don't really have any evidence that he is like becoming dramatically less conservative or dramatically more liberal, that he's a closet, liberal or something like that. But I think what it does mean is that the court is very polarized were in an extremely polarize political moment, we're in a moment where the court is correctly perceived as having a majority of conservatives and where Democrats her mad about that, you know there was. There- was a significant amount of talk about core packing during the democratic primary aim in like whether that can actually be pulled off is a whole nother discussion.

The Supreme Court has been in the news, and discussion of changes to the Supreme Court had been in the news in ways that John robbers probably does not love and so being able to issue a sort of as a whole, a group of rulings that, like don't really move outside public opinion and appear kind of balanced between the Berlin conservative is good if you are concerned about preserving this idea that the Supreme Court is not just politicians in robes, as Supreme Court. Nominees are very fond of saying during their confirmation hearings and that you can trust these people who have lifetime appointments to not be making decisions that are just in line with their pets.

Call beliefs, and so you know with the carving out that, obviously, like John Roberts, it's not my friend and I dont know exactly. Why he's doing all these things? He does have a reputation for really caring about the institution of the court and I think this term makes a lot of sense. If you see him as someone who is trying to kind of preserve the court's reputation in a moment when it is a little bit more fragile than it has been asked weight, but doesn't that in and of itself fly in the face of the idea that there is a sort of correct interpretation of the law that justices are supposed to thou out for us in their decisions, if presumably a chief justice could be. Making some decisions with the goal of magic public opinion like is it should? even less in this facade of like there is are we to interpret the law and justice, as are just doing that correct thing, so fair question

Would it be clear that I do not think it? John Roberts is Lake going to five thirty or perusing the poles to try to figure out exactly where public opinion is on given issues, he has been pretty scathing about social science in general in the past. So, yes, we talked about this during gerrymandering, sociological, gobbledygook yeah, like I think, the guy's a pull watcher, not you're here, the site, but I think it in general, like you, That's an argument you can make, and I think there are probably conservatives who are out there thinking to themselves, John Robert supposed to be conservative and look all the other. Conservatives went one way on the

portion rolling and on the ruling involving Dhaka is another big case where Roberts ruled with the liberals to say that the Trump Administration had basically not followed the correct process in trying to end the dock, a programme and so yeah. You can totally make the argument that it is itself political to take the institutional reputation of the court into it. And even kind of vaguely when you're making decisions. On the other hand, I dont think we saw anything this term that is really radical from

Roberts, you know the idea that he would follow precedent in the abortion case, like that was a really aggressive move to bring a basically identical law to the Supreme Court for years after they had already decided it. You know he might have rural differently on another abortion law and with Doc. I it does sort of seem to be important to him to tell the Trump administration that they really can't get away with completely ignoring the rules and procedures that the executive branch is supposed to follow when they are changing, policies are issuing policies that affect people's lives and really serious ways right. In that case, those A broader recently said that, yes, you know that administration can and Dhaka if it wants to it just did it the wrong way right right, actually, unlike trump administrations. Please just follow the rules.

The kind of sub text of of Roberts is ruling was not like. He was like no darkest great programme, and it should continue and and Yea Dhaka. But on the other hand I mean this is this. Is a debate has been going on for a long time about 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 is in a unique position of being at the

center of the court being the chief justice, whose unit whose name is on the legacy of anything this court does so you know he's sort of thinking about. Do I want to be perceived as the chief justice who did acts and also being in this. You know moment where the ideological polarization of the other justices is really strong and where the conservative block, I think we saw from this term, would go pretty far to the right if Roberts would go along with them, and I am sure there are people who are thinking. You know g in sort of having all these, these rulings on the left and the right that he's actually making political decision to try to make the court not seem political and you know, I think there is also an argument that maybe you know he's doing that because he really sees that as what the Supreme Court needs to be able to do its job and also maybe he's doing that so that three years from now

and another abortion restriction that the court has not just world on comes back to them. He the leeway and credibility to say. Ok well, three years ago you know, I said I followed precedent, and you also me do that. But in this case there is no precedent saying that this is this. Abortion restriction is an ok and in fact, I think this abortion restriction, constitutional and maybe sort of having that track record could help me something that would be more controversial, be less contracts. In theory, you know I'm all kind of speculating. I have no idea of this. What he's actually thinking, but these are the kinds of considerations that I think are on the mind of someone who has been appointed to the Supreme Court for life and presumably is thinking forward to a lot more terms than just this one. Is it fair to call John?

Aubert's the most powerful and maybe the second most powerful person in America. Given the dynamics that you ve laid out here I mean he is one of the most powerful

people in America right now for sure I mean Anthony Kennedy- was in this position for a long time to when you have one person on the court who is sort of consistently breaking ties. That person has a tremendous amount of power and the court can only rule on things that are brought to them. So it's not like John Roberts can decide that he wants to start weighing on anything that he thinks it's a problem or anything. That's interesting to him. But yeah he's 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 when it's not an election year and the conservatives and liberals on the quarters of continuing to kind of hash out where they are, and this ideological divide has had even more time to harden. You mentioned the. Of course, the Supreme Court is not

entirely making decisions in a vacuum and that public opinion can and sometimes 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 come some of the numbers this term? How often did their decisions line up with majority opinion I only have data on this for some of the highest profile cases. You know, as I am sure people know, there are lots of cases that are about more obviously important legal issues, but are knocking on the front page of the New York Times, but researchers this year asked a series of questions that were designed to actually figure out how Americans feel about the specific issues in the big Supreme Court cases, which is pretty cool, because you know just having those all in one place and having them designed to be specifically responsible

Supreme Court cases, not something that you always get and when I talk to one of the researchers who designed this, she said that when she got the results back, she was thinking you know. Oh, this is interesting because public opinion, basically when in a liberal direction, on a lot of those questions, not all of them, but a significant number of them and definitely Dhaka the public's reporting to keep dark. Not thinking trumps should be able to get rid of it and abortion, and what we see at the end of the day is that the Supreme Court, actually,

on the same side as public opinion in most of those cases, not all of those cases. There are a few exceptions, but you know this is not. It was a big term, but weirdly, it's not gonna, be a hugely controversial term, at least where the public is concerned, and you know it does make me wonder a little bit if this is gonna like take the wind out of the sails of some of the calls for court packing, because, especially for liberals, this could have been a really disastrous terminate was much less disastrous. That I think a lot of people on the left were fearing wondering if it didn't quite attract, show much pain listen rank, but by is interesting, especially for us here at five. Thirty, eight, given the name of our sight, was a decision about how delegates to the electorate, college our electors at the electoral college have to vote and whether or not They can be reprimanded for being a faceless elector, essentially voting against the person they are supposed to cast their vote, for how did that all come?

In the end, that was actually a rare, high profile decision, where all the justices were basically on the same page and they said yeah. It's ok for states to say electors, you have to vote for the person who slate your on and it was interesting, to see that that was a moment of unity, because you know ass. We talked about pike ass before and I'm sure talk about again issues around election law are often quite polarizing, but it seemed like this was one where actually the Supreme Court justices were pretty much all the same. All right. Well, let's leave things there and I look forward to seeing the rest of the data once you crunch it and read it up for the site next week, but thank you for now. May I thank them for having me Galen

Name is Galen droop Tony Chow is in the virtual control room. You can get in touch. My e mailing us at podcast at five, thirty, eight dot com. You can also, of course, tweeted us with questions or comments. If your family, shall leave us a rating or review in the apple pie, cast store or Someone about us thanks for listening and well her