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What's Ahead As The Supreme Court Term Ends


The 2017-2018 session of the Supreme Court of the United States is over, and by any measure, it's been historic - first, major decisions in cases with lasting impacts on cellphone privacy, unions and President Trump's travel ban. And then to cap it off - a retirement announcement from the court's swing justice, Anthony Kennedy. The battle over who will replace him is already underway, and it's a fight that will have ripple effects on the midterm elections and American life for decades to come.

To unpack all this, I'm in the studio with two people who know a lot about the court, NPR legal affairs correspondent Nina Totenberg. Hey there, Nina.


CORNISH: And Tom Goldstein of SCOTUSblog, welcome back.


CORNISH: Nina, when you look back on this term, what decisions stand out?

TOTENBERG: Well, first there are the big decisions, the marquee decisions that were not. The court punted on extreme partisan gerrymandering, and there's the Masterpiece Cakeshop case which ended up deciding really very little. Then there are the genuinely huge decisions, all 5-4. The Trump travel ban was upheld. There was a big labor union case testing the fees that are paid by non-union members to cover the costs of collective bargaining that non-union members benefit from. The court said those fees are compelled speech, and they're - are therefore unconstitutional.

CORNISH: You know, were there are a lot of 5-4 cases compared to other years, Tom? I mean, this is why people are talking so much about Justice Kennedy's retirement - right? - the idea of a swing vote.

GOLDSTEIN: Yeah, the number did tick up this term. We got about - slightly more than a quarter of all the cases were decided 5-4. And among those, most of them were on this 5-4 ideological axis of 5 conservatives versus 4 more liberal justices. And we talk about Justice Kennedy as the center vote, but in all of those cases, he voted with the conservatives this year, which was a big change.

CORNISH: Nina, I've heard the term scrambled vote in terms of looking at these right-left splits in these decisions. Can you give us an example of that, a key one?

TOTENBERG: My favorite one is the cellphone case where 5-4, the court said the police have to get a warrant if they want to get the cellphone location information that tracks where your cell phone has been. And it was written by the chief justice, definitely a conservative, and joined by the court's four liberals. So he is the hope now of the left. It's a pretty thin rail, but he's the only person who isn't pretty much going all the time in lockstep in one direction - one conservative direction.

CORNISH: Now, we've gotten to observe Justice Neil Gorsuch on the bench for his first full term. He was appointed by President Trump back in 2017. What did we learn about him as a jurist, Tom?

GOLDSTEIN: Well, it was an extraordinary term, maybe the most influential first term of any Supreme Court justice in at least a hundred years because he was the author of a huge number of these 5-4 decisions. We learned what we expected, and that is he's quite conservative. But there were a couple of times when he changed gears and was with the liberals on the court - for example, in a big case involving immigration. And also, he had some suggestions that he might be more favorably inclined to criminal defendants. So there were some cracks in this facade that he is a complete doctrinaire conservative straight down the line.

CORNISH: President Trump is going to get to nominate another justice for the court obviously with Justice Anthony Kennedy retiring. And, Nina, President Trump actually met with Justice Kennedy yesterday. Have we heard much about this meeting?

TOTENBERG: Why don't you listen to what he had to say?


PRESIDENT DONALD TRUMP: I get his ideas on things including - I asked him if he had certain people that he had great respect for that potentially could take his seat, which is a very hard seat to fill.

TOTENBERG: Well, let's just say, Audie - and this may not surprise you - that I have very good reason - unimpeachable reasons to believe that that is not the way Justice Kennedy viewed the meeting. You might think he would be worried about his legacy. He does not seem to be worried about his legacy. He believes that rights, once established, won't be taken away. And by that, I'm sure he means abortion rights, gay marriage and that sort of thing.

CORNISH: We'll know more what names the president is considering, but do we have an idea now what kind of person he is looking at to fill that seat, Tom?

GOLDSTEIN: We do. He has promised to work off the same list that he used last time, so there's been a lot of study of those people. And you would expect them to be like Neil Gorsuch so that it's not just a carbon copy of Justice Kennedy but someone who probably is going to be significantly to the right who's going to put into question at least narrowing Roe versus Wade, eliminating affirmative action, certainly not making progress on getting rid of partisan gerrymandering that's affected a lot of our politics. So the Supreme Court, while it's incredibly conservative, has a lot further that it could go. And this really does remove with this retirement the single biggest barrier to a big jump to the right.

CORNISH: That's Tom Goldstein of SCOTUSblog and NPR legal affairs correspondent Nina Totenberg. Thank you both.


TOTENBERG: Thank you, Audie. Transcript provided by NPR, Copyright NPR.