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A Recap Of The Supreme Court Term


The U.S. Supreme Court has handed down a lot of decisions in the past couple of weeks - opinions on juries and voting districts and census forms and a giant memorial cross. And if all that has left your head spinning, not to worry. We've got NPR's Supreme Court correspondent Nina Totenberg here in the studio. Hey there, Nina.


CORNISH: And she is joined by Tom Goldstein, publisher of SCOTUSblog. Welcome to the studio.


CORNISH: Now that this term is wrapped, you guys are going to help us make sense of what has happened. And I'm going to start with, let's say, a headline. Nina, for you, how would you headline this term?

TOTENBERG: Well, the chief justice really is the swing man now. For years and years, for his whole time as chief, it was Justice Anthony Kennedy. But Kennedy retired, and there are four solidly conservative justices on the court and the chief justice. And when he - I hesitate to use the word defects. It makes a huge difference. And also my subhead would be that people are not quite as predictable as you would think.


GOLDSTEIN: Well, I would say that the chief justice absolutely is in the lead, and he is moving the court to the right but not at a breakneck pace. He really does want to take it somewhat slowly so the court isn't perceived as too partisan a place.

CORNISH: So what are the bigger cases that would demonstrate, effectively, a slow march?

GOLDSTEIN: So two examples would be the Peace Cross case where the Supreme Court actually by a 7-to-2 majority upheld this large religious monument, the cross, that is to honor the war dead but did it in terms that don't invite a lot of government involvement with religion and then also the census case where the court did reject a lot of challenges to asking a question about citizenship on the census but did ultimately say you can't have the question now because we think the reasons the administration gave were lies. And then you would contrast that with something like the partisan gerrymandering decision in which the Supreme Court did take a big step to the right, which will have consequences for decades in saying that the federal courts will not decide the question of whether there was too much partisan gerrymandering.

CORNISH: Can we take a look at what happened with President Trump's appointees, the two newest justices, Brett Kavanaugh and Neil Gorsuch? What have we learned about them?

TOTENBERG: Well, Kavanaugh, I think, is really fascinating because he comes to the court after a really rocky confirmation hearing, to say the very least. But he has really played a pretty strong role for a junior justice, and he's gotten very good assignments from his colleagues on the right and the left. Justice Ginsburg, when she's in the majority and the chief is and she assigns, she gave him a big antitrust case to write, and he was thrilled to have it. And then the chief justice gave him a big race discrimination case to write. And it was a gift. It's good for his image, and it's something he's written about since he was a law student and he knows a lot about, so it was an appropriate gift.


GOLDSTEIN: The other thing about Kavanaugh is he kind of really kept his head down a little bit. He is the justice who voted with the majority the most this term. He really, really tried to find his way into majorities. With respect to Justice Gorsuch, we did see that though he's extremely conservative, we learned a lot more about him this term in that in several cases he joined with the left. But in two particular fields, he cares a lot about the rights of Indian tribes and Native Americans and also in some criminal law cases. And that showed Nina's point that things aren't always predictable at the Supreme Court.

CORNISH: What about the liberals? What have we seen among the newer justices there?

TOTENBERG: Well, I think Justice Kagan has had a real breakout term, both in her majority opinions, sometimes given to her by Justice Ginsburg to write, and in her very passionate dissent, for example, in the gerrymandering case. And what you're seeing, I think, is the beginning of the passing of the torch from Ruth Bader Ginsburg to Elena Kagan as a leader of a wing of the court. Justice RBG is not saying I'm out of here - not yet. But she is preparing a succession, which is a very interesting, generous and strategic thing to do.

GOLDSTEIN: The other thing I would say about the left agreeing with that is that they just don't break apart very often. They actually held together in a number of significant cases where they were able to peel one of the conservatives off. So if you look at which side of the court really sticks together the best, weirdly, it's actually the left.

CORNISH: Finally, what does this all say about what's ahead?

TOTENBERG: Ooh. Well, hold on to your seat. It's going to be a wild ride next year - guns, gay rights, religion, and today, the court agreed to review the case testing whether President Trump can revoke the Obama-era program that granted temporary legal status for the so-called DREAMers.

GOLDSTEIN: Well, I think it's going to be really incredible to watch. And you would expect more conservative outcomes, just that slow and steady pace to the right. I would say that the DACA program is really on life support at this point now that the Supreme Court has stepped in. The ones that'll be really interesting to watch are the kind of social cases. What will happen to LGBTQ rights when it comes to employment discrimination where we know Justice Kennedy would have been really concerned about discrimination? What does Brett Kavanaugh, our new fifth vote there, have to say?

CORNISH: All that heading into an election. Well, NPR's Nina Totenberg, thank you.

TOTENBERG: Thank you.

CORNISH: And Tom Goldstein of SCOTUSblog, thanks so much for coming on.

GOLDSTEIN: Thanks for having us. Transcript provided by NPR, Copyright NPR.

Nina Totenberg
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.