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Supreme Court Justices Continue To Struggle With Precedent


Tomorrow the U.S. Supreme Court is expected to hand down its remaining decisions. Over the past two weeks alone, it will have decided some 24 major cases. Nina Totenberg, NPR's legal affairs correspondent, has been burning the midnight oil to cover all this. She joins us now. Welcome to the studio, Nina.


CORNISH: Let's just start with today. What did the court do that was important?

TOTENBERG: Well, Audie, I promise you this is not boring. The justices spend a total of 75 pages and 4 opinions, including a passionate and sometimes snarky minority opinion from Justice Neil Gorsuch, and it's all about - (imitating drum roll), drum roll - how agencies enforce their own rules. There's this long line of cases that dates back three quarters of a century, and these decisions tell lower court judges that they're generally supposed to defer to an agency's reasonable interpretation of its own rules.

Now, for decades, some conservatives have been gunning for this agency deference rule. They see it as the ultimate representation of the administrative state or in the view of some government bureaucracy run amok. But today, the court, by a 5-to-4 vote, upheld the agency deference doctrine. Justice Elena Kagan writing for the majority reaffirmed the importance of deferring to agency expertise. But she also limited the deference in specific ways. What emerges, she said, is a doctrine not quite so tame as some might hope but not nearly so menacing as they might fear.

CORNISH: And it looks like the fifth and decisive vote came from Chief Justice John Roberts and that he joined the court's more liberal-leaning justices. Can you talk about that?

TOTENBERG: Well, even administrative law nerds noticed that first. Here's Case Western law professor Jonathan Adler.

JONATHAN ADLER: Chief Justice Roberts' decision to join Justice Kagan in upholding a very controversial precedent confirms that the chief justice, even with a conservative majority, is reluctant to overturn too many precedents.

TOTENBERG: And here's University of Chicago professor Jennifer Nou talking about Roberts' concurring opinion.

JENNIFER NOU: This opinion I think really reflects Roberts as an institutionalist, and indeed he's squarely rested on stare decisis.

CORNISH: That's a term we hear over and over again in confirmation hearings - stare decisis. Can you explain?

TOTENBERG: It means following precedent. It's the idea that as legal principles develop in the courts, there's a body of law that people can rely on. And this is something the liberal and conservative wings of the court have been fighting about all year with Kagan in particular occasionally lambasting her conservative colleagues for their willingness to, in her view, overturn longstanding precedents without any real justification except that they didn't like the original decision.

CORNISH: So what is this all really about?

TOTENBERG: First and foremost, it's about Roe vs. Wade and the court's other abortion precedents. It's about some race questions, affirmative action the, Voting Rights Act gutted in 2013 in an opinion by Chief Justice Roberts, separation of church and state questions. It's a battle royal between a new brand of conservatives on the court and the court's four liberals who are defending these precedents.

CORNISH: All right, Nina, before I let you go, what's the court going to be serving up tomorrow?

TOTENBERG: Whether extreme partisan gerrymandering can ever be unconstitutional and whether the Trump administration can add a citizenship question to the census.

CORNISH: That's NPR's Nina Totenberg. Thanks so much.

TOTENBERG: Thank you.

(SOUNDBITE OF CAIA'S "REMEMBRANCE") Transcript provided by NPR, Copyright NPR.

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.

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