ROBERT SIEGEL, HOST:
The Supreme Court wrapped up its term yesterday with a blockbuster decision on abortion rights, plus the important decisions limiting public corruption, prosecutions and gun rights. It has been an extraordinary term marked prominently by the death of conservative icon Antonin Scalia. Joining us to talk about the term are Tom Goldstein, publisher of SCOTUSblog and NPR legal affairs correspondent Nina Totenberg. Hi to both of you.
TOM GOLDSTEIN: Hello.
NINA TOTENBERG, BYLINE: Hello.
SIEGEL: Tom, you've been crunching the numbers about this term looking for trends. What kind of patterns have you seen?
GOLDSTEIN: So this term we saw many fewer of those cases that turn on just one vote, the super close cases. We saw the justices in the center, not just Justice Kennedy, but also Justices Kagan and Breyer really being the justices who voted closest together, not a bloc of liberals or a bloc of conservatives.
And we saw the chief justice, the leader of the Supreme Court not getting involved in very divisive cases writing those opinions, but instead sticking to things that seem to be 9 to 0 or 8 to 0.
TOTENBERG: There are plenty of cases this term - the biggest cases - affirmative action, abortion - where Justice Kennedy, once again, is sort of the king swing vote. But there are other cases that got less attention where this cluster of centrists - one at least of them makes the difference.
So there was a big and very important case involving the search of somebody who's illegally stopped. Then you find out there's a warrant out for his arrest. Can you use what you search? When you search him, can you use the bad stuff you find? And the answer from the court was yes. And Justice Breyer moved over to be with the conservatives and be the linchpin in that case.
SIEGEL: Now, usually we talk about lots of 5-4 decisions. Obviously there haven't been a lot of 5-4 decisions because there've only been eight justices this time. How has that affected what's happened, Tom?
GOLDSTEIN: Well, I think you've seen the court try and avoid huge disputes. A couple of things either happened. One is that the conservatives were disappointed, and you got a more liberal outcome in, say, the affirmative action case or the abortion case, where the left won or the court just tried to come up with some big compromise, where it was that they rejected a major challenge to the contraception mandate of the Affordable Care Act, but still left open the need to come up with something to accommodate the religious objections.
TOTENBERG: We've heard privately and even publicly this term from the justices saying, look, we know we're eight justices. We know there are some cases we're inevitably going to be tied. But we want those to be minimal, and we don't know when we're going to fill that seat. So we really need to do our very best to come up with something.
SIEGEL: What do the decisions of this term tell you about the individual justices? And, you know, why don't you start with Justice Anthony Kennedy whom you've both already mentioned seems to be a very important figure in this job?
TOTENBERG: Well, this was supposed to be the term that was sort of the revenge of the right where they would prevail on affirmative action, where they would prevail on abortion, and it didn't happen in large part because of Scalia's death.
But interestingly, Justice Kennedy was not only the linchpin in those cases. He was, I would say, more comfortable with his position on abortion and affirmative action - more, if you can say so, slightly to the left on those - in those cases.
And there's a conspiracy theory that I've gotten from a lot of court watchers and scholars, and they think, well, he knows that the court is likely to be more liberal if Clinton wins. And, therefore, he's moving to the left, so he can preserve his influence. I just think that's a crock. What do you think, Tom?
SIEGEL: But thanks for introducing us...
TOTENBERG: Yeah, but you're going to hear more of it. Tom, what do you think?
GOLDSTEIN: Yeah, I agree with Nina here. I think what's going on is that conservatives who had such high hopes for this term, as Nina suggested, were these hot-button issues. And they had a conservative majority - were disappointed, and they've been disappointed a lot over the past few years either in Justice Kennedy or in Chief Justice Roberts
And so they - want to say is I never really believed he was with us anyway. He was always a flip-flopper. He was never our guy, when, in fact, Justice Kennedy's views can be quite nuanced on these things.
SIEGEL: Well, in reading opinions by Justice Kennedy and watching how he votes over the years, would you say that he has actually changed, that he's - his thinking is different today than it was 10, 20 years ago?
TOTENBERG: Probably. That was true with Justice O'Connor. And I think sometimes when you have a hard right or a hard left, they can push the other side more in the other direction. And I think that's happened a bit with justices who are basically conservative, but not that conservative.
SIEGEL: Well, the court will be back in the fall, still with just eight justices. What impact is that having on the court's docket for next year?
GOLDSTEIN: Well, for a while it looked like the court was just going out of business, that it just wasn't going to take many cases at all. They did...
SIEGEL: How much is a lot of cases, by the way?
GOLDSTEIN: Well, you know, usually they have about 35 cases at this point in the year, and they were down in the 15-20 range. Now, at the very end, they picked up a bunch of cases, so they're not going out of business. They're just trying to put us to sleep, I think is the way of looking at it.
TOTENBERG: They're really boring. I got to cover a lot of the election.
SIEGEL: So, Nina, what's your best guess as to when we might get a ninth justice actually sitting on the court?
TOTENBERG: Well, I think the prospects after the election if Clinton wins are about 50/50 that there's a lame-duck vote and Merrick Garland can take his seat probably in December. If that doesn't happen, we won't get somebody next term because you have to wait for a new president.
There won't be hearings until probably February or March on anybody. And then by the end of April, they've - they're done hearing cases and somebody gets sworn in in April. We'll have to wait 'til the next term to do the real work.
GOLDSTEIN: Yeah, my guess is that if Hillary Clinton wins, there will be a race by Republicans to confirm the more centrist Merrick Garland who's also 63-years-old. They are not going to want to take the chance that Hillary Clinton's going to put up somebody much younger and much more liberal.
SIEGEL: Tom Goldstein publisher of SCOTUSblog, NPR's Nina Totenberg, thanks to both of you.
GOLDSTEIN: Thank you.
TOTENBERG: Thank you.
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