1 00:00:03,480 --> 00:00:07,560 Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 2 00:00:07,640 --> 00:00:10,440 Speaker 1: day we bring you insight and analysis into the most 3 00:00:10,480 --> 00:00:13,399 Speaker 1: important legal news of the day. You can find more 4 00:00:13,440 --> 00:00:18,040 Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud, 5 00:00:18,320 --> 00:00:22,200 Speaker 1: and on Bloomberg dot com slash podcasts. When the Trump 6 00:00:22,239 --> 00:00:25,360 Speaker 1: administration appears at the Supreme Court, it's represented by the 7 00:00:25,400 --> 00:00:27,960 Speaker 1: Solicitor General's Office. You can think of them sort of 8 00:00:28,000 --> 00:00:31,520 Speaker 1: as the government Supreme Court legal team. And this past term, 9 00:00:31,600 --> 00:00:34,599 Speaker 1: the federal government's lawyers did post a better record than 10 00:00:34,720 --> 00:00:36,960 Speaker 1: last term in cases in which it was a party, 11 00:00:36,960 --> 00:00:40,400 Speaker 1: but it's still barely passed the fifty fifty mark, winning 12 00:00:40,440 --> 00:00:43,920 Speaker 1: twelve cases and losing ten. Joining me is Josh Blackman, 13 00:00:44,000 --> 00:00:47,240 Speaker 1: Professor of Constitutional law at the South Texas College of Law. 14 00:00:47,280 --> 00:00:51,199 Speaker 1: His new book is called Unraveled Obamacare, Religious Liberty, and 15 00:00:51,280 --> 00:00:55,640 Speaker 1: Executive Power. So, Josh, this isn't just the Trump administration. 16 00:00:55,760 --> 00:00:59,720 Speaker 1: It's a decades long slide for the Solicitor General. Can 17 00:00:59,720 --> 00:01:02,920 Speaker 1: it be explained by the kinds of cases, the quality 18 00:01:02,960 --> 00:01:06,880 Speaker 1: of the lawyers, or something else entirely well, thanks for 19 00:01:06,920 --> 00:01:10,440 Speaker 1: having me back, um. The US government has an office 20 00:01:10,520 --> 00:01:13,880 Speaker 1: called the Slicitor general, and this is usually a lawyer 21 00:01:14,520 --> 00:01:17,800 Speaker 1: and his staff who are trained to practice only before 22 00:01:17,800 --> 00:01:21,399 Speaker 1: the US Supreme Court. And for decades, the US government 23 00:01:21,480 --> 00:01:23,800 Speaker 1: had a bit of a monopoly. They were the only 24 00:01:23,840 --> 00:01:26,880 Speaker 1: ones who had the sort of specialized practice. UM. But 25 00:01:26,920 --> 00:01:29,880 Speaker 1: over the last two or three decades, private law firms 26 00:01:29,959 --> 00:01:34,400 Speaker 1: have begun to staff up and become competent to argue 27 00:01:34,480 --> 00:01:37,240 Speaker 1: for the Supreme Court. Indeed, a lot of these law 28 00:01:37,319 --> 00:01:41,920 Speaker 1: firms will hire outgoing stream court clerks and the competition 29 00:01:42,000 --> 00:01:44,520 Speaker 1: is fierce, believe it or not. They pay bonuses up 30 00:01:44,560 --> 00:01:47,800 Speaker 1: to three dollars or more. However, someone fresh to have 31 00:01:47,840 --> 00:01:51,520 Speaker 1: a clerkship from the Supreme Court. It's extremely competitive, and 32 00:01:51,520 --> 00:01:53,120 Speaker 1: they do this to be able to go head to 33 00:01:53,160 --> 00:01:55,840 Speaker 1: toe or gets head to head with the government. And 34 00:01:55,880 --> 00:01:58,040 Speaker 1: they're starting to actually win a lot more cases at 35 00:01:58,040 --> 00:02:02,680 Speaker 1: the High Court. So the numbers of wins when the 36 00:02:03,720 --> 00:02:07,280 Speaker 1: government is a party to the case is contrasted to 37 00:02:07,520 --> 00:02:10,840 Speaker 1: the record of twenty two wins and six losses when 38 00:02:10,840 --> 00:02:13,920 Speaker 1: the government just takes a position in the case despite 39 00:02:13,960 --> 00:02:16,320 Speaker 1: not being a party as an amiquus or a friend 40 00:02:16,360 --> 00:02:20,760 Speaker 1: of the court. How do you account for that difference. Well, 41 00:02:20,800 --> 00:02:23,160 Speaker 1: if you think about it, UM, the government can pick 42 00:02:23,200 --> 00:02:25,760 Speaker 1: and choose when they want to be friends at the 43 00:02:25,800 --> 00:02:30,720 Speaker 1: court what's called an amicus curier. Uh, But they can't 44 00:02:30,800 --> 00:02:33,880 Speaker 1: choose when someone else drags them to court. Right, So 45 00:02:33,960 --> 00:02:36,960 Speaker 1: let's say someone sues the federal government, the local court 46 00:02:37,040 --> 00:02:40,320 Speaker 1: rules for the federal government, and then the plaintiff appeals. 47 00:02:41,040 --> 00:02:43,320 Speaker 1: That means the Supreme Court is likely going to reverse 48 00:02:43,360 --> 00:02:45,919 Speaker 1: the government. So when the government can pick and choose 49 00:02:45,960 --> 00:02:49,960 Speaker 1: their cases, their win loss record is much better. When 50 00:02:49,960 --> 00:02:53,160 Speaker 1: they're being dragged the court involuntarily, they have a much 51 00:02:53,240 --> 00:02:59,440 Speaker 1: bigger chance of losing. So now, the Obama administration had 52 00:02:59,760 --> 00:03:02,680 Speaker 1: one of the worst records in modern history as far 53 00:03:02,720 --> 00:03:06,880 Speaker 1: as the success of a solicitor general. So is there 54 00:03:06,919 --> 00:03:12,160 Speaker 1: anything any correlation between the for example, how conservative a 55 00:03:12,240 --> 00:03:15,880 Speaker 1: president is and whether a Supreme Court is conservative or 56 00:03:15,880 --> 00:03:19,280 Speaker 1: a liberal, any correlation at all in that respect, You're 57 00:03:19,320 --> 00:03:23,080 Speaker 1: exactly right. When you have a very liberal administration, for example, 58 00:03:23,120 --> 00:03:27,560 Speaker 1: the Obama administration, and a somewhat conservative court, which is 59 00:03:27,600 --> 00:03:32,480 Speaker 1: a Robert's Court, the Obama administration is going to lose more. Um, 60 00:03:32,520 --> 00:03:35,800 Speaker 1: the Trump administration has fired perhaps a little bit better 61 00:03:35,920 --> 00:03:38,680 Speaker 1: than the Obama administration. I think that's more of a 62 00:03:38,760 --> 00:03:42,200 Speaker 1: factor that the court matches the Trump administration's ideology. So 63 00:03:42,240 --> 00:03:44,040 Speaker 1: you do have to match up the win loss record 64 00:03:44,080 --> 00:03:47,000 Speaker 1: based on who's judging and who's arguing. It's not always 65 00:03:47,080 --> 00:03:51,280 Speaker 1: a straight up fair contest. So I found this really interesting. 66 00:03:51,320 --> 00:03:54,640 Speaker 1: Of the current justices, not including the newest two justices, 67 00:03:55,080 --> 00:04:00,280 Speaker 1: only Justices Clarence Thomas, Stephen Bryer, and Samuel Alito mostly 68 00:04:00,360 --> 00:04:03,920 Speaker 1: vote in favor of the government. That's according to Imperial scotuses. 69 00:04:04,080 --> 00:04:07,800 Speaker 1: Adam Fillman, and Brian just barely meets the threshold. He 70 00:04:07,880 --> 00:04:10,920 Speaker 1: votes for the government about percent of the time. How 71 00:04:10,920 --> 00:04:16,840 Speaker 1: do you account for those three justices agreeing with the government. Well, 72 00:04:17,000 --> 00:04:19,880 Speaker 1: those justices tend to be a little bit more deferential 73 00:04:20,120 --> 00:04:23,680 Speaker 1: to the government, and they're less skeptical of federal power 74 00:04:23,720 --> 00:04:28,640 Speaker 1: in certain context. Justice Brian particular worked in the Senate 75 00:04:28,680 --> 00:04:31,360 Speaker 1: for many years. He was a staffer for Senator Ted 76 00:04:31,440 --> 00:04:34,239 Speaker 1: Kennedy for for some time. So I think Justice Brian 77 00:04:34,279 --> 00:04:36,719 Speaker 1: in particular has a very strong affinity to laying the 78 00:04:36,760 --> 00:04:39,720 Speaker 1: democratic process of work its way out. Um. The other 79 00:04:39,800 --> 00:04:42,680 Speaker 1: justice might be more skeptical of how the government operates 80 00:04:42,680 --> 00:04:46,599 Speaker 1: in the myrolicance of government more often. So you mentioned 81 00:04:46,640 --> 00:04:50,279 Speaker 1: the private attorneys being one of the factors who are experts. 82 00:04:50,600 --> 00:04:54,880 Speaker 1: UM this term. Just five private d C attorneys argued 83 00:04:54,920 --> 00:04:58,039 Speaker 1: in a quarter of the Supreme Courts cases, each argued 84 00:04:58,040 --> 00:05:01,559 Speaker 1: about four or five times the term. Is there something 85 00:05:01,560 --> 00:05:05,480 Speaker 1: to be said for the justices knowing these lawyers and 86 00:05:05,520 --> 00:05:10,080 Speaker 1: perhaps trusting their legal reasoning over the years. It's a 87 00:05:10,200 --> 00:05:12,960 Speaker 1: very good point. UM. A lot of these attorneys are 88 00:05:13,000 --> 00:05:15,440 Speaker 1: what we call repeat players, where they argue for the 89 00:05:15,480 --> 00:05:18,520 Speaker 1: court over and over again, and the justices build a 90 00:05:18,560 --> 00:05:21,800 Speaker 1: familiarity with them and indeed a trust they know they 91 00:05:21,800 --> 00:05:23,920 Speaker 1: can count on them to give them fair arguments, a 92 00:05:24,520 --> 00:05:26,920 Speaker 1: good record of facts, and don't try and pull any 93 00:05:26,920 --> 00:05:30,520 Speaker 1: funny business. I think that really helps. UM. Several of 94 00:05:30,520 --> 00:05:34,080 Speaker 1: the justices have said they don't like newbies, arguing they 95 00:05:34,120 --> 00:05:37,359 Speaker 1: want someone they know, which isn't very good advice for 96 00:05:37,400 --> 00:05:40,359 Speaker 1: someone starting off from scratch, but suggest that they preferred 97 00:05:40,400 --> 00:05:44,120 Speaker 1: the specialized Supreme Court bar as a as a group 98 00:05:44,240 --> 00:05:46,480 Speaker 1: is known. Yeah, it's it's tough enough to appear at 99 00:05:46,480 --> 00:05:49,360 Speaker 1: the Supreme Court without having that hanging over you. So 100 00:05:49,640 --> 00:05:52,480 Speaker 1: you have you've written a book on executive power. In 101 00:05:52,680 --> 00:05:57,800 Speaker 1: cases involving executive power, this term if if there were 102 00:05:57,880 --> 00:06:00,520 Speaker 1: there were some I believe how did the government It's fair. 103 00:06:01,920 --> 00:06:06,000 Speaker 1: The biggest case this term at executive power was the 104 00:06:06,040 --> 00:06:10,120 Speaker 1: census case. You might recall that the Trump administration wants 105 00:06:10,120 --> 00:06:13,039 Speaker 1: to add a question to the to the census about 106 00:06:13,080 --> 00:06:17,000 Speaker 1: are you a U. S. Citizen? Um? And this was 107 00:06:17,160 --> 00:06:20,279 Speaker 1: a rare instance where the court held that the government 108 00:06:20,320 --> 00:06:23,400 Speaker 1: could add this question. It wasn't illegal, but that the 109 00:06:23,440 --> 00:06:27,520 Speaker 1: reason the Secretary of Commerce gave was not the real reason. 110 00:06:28,120 --> 00:06:30,800 Speaker 1: And Chief Justice Roberts perhaps suggested if he gave us 111 00:06:30,839 --> 00:06:33,400 Speaker 1: a real reason, you would have won. But now we 112 00:06:33,480 --> 00:06:35,359 Speaker 1: know that there was enough time to go back and 113 00:06:35,400 --> 00:06:38,160 Speaker 1: print the forms again. Um, so we're stuck with it. 114 00:06:38,200 --> 00:06:41,040 Speaker 1: But this was a huge defeat for the executive branch, 115 00:06:41,120 --> 00:06:44,320 Speaker 1: a huge defeat because this was a central of a 116 00:06:44,320 --> 00:06:49,520 Speaker 1: plank of President Trump's executive agenda. Even though Justice Roberts 117 00:06:49,520 --> 00:06:53,160 Speaker 1: said that, you know, he left it open if there 118 00:06:53,200 --> 00:06:55,120 Speaker 1: had been time, they could have come back, if they 119 00:06:55,160 --> 00:06:59,880 Speaker 1: had a different reason. Yeah, I mean, Roberts knew what 120 00:06:59,880 --> 00:07:01,839 Speaker 1: we all knew, and the governments of the deadline was 121 00:07:01,920 --> 00:07:04,600 Speaker 1: June thirty, and that was a deadline. The deadline came 122 00:07:04,600 --> 00:07:06,400 Speaker 1: and went, and that was it. And there was no 123 00:07:06,480 --> 00:07:10,120 Speaker 1: time to do a new printing of the forms. So um. 124 00:07:10,120 --> 00:07:13,600 Speaker 1: Trying to criminal cases, which there are always a lot 125 00:07:13,640 --> 00:07:17,160 Speaker 1: of it, Why is the court generally skeptical of the 126 00:07:17,240 --> 00:07:24,600 Speaker 1: government in criminal cases? Traditionally conservatives were very deferential to 127 00:07:24,600 --> 00:07:27,640 Speaker 1: the government in criminal matters. That has changed for the 128 00:07:27,720 --> 00:07:30,400 Speaker 1: last twenty years or so. And I give credit Justice 129 00:07:30,400 --> 00:07:34,040 Speaker 1: Scalia Um. Justice Glee was as conservative as they come, 130 00:07:34,720 --> 00:07:37,400 Speaker 1: but he was always very much concerned at the rights 131 00:07:37,400 --> 00:07:39,600 Speaker 1: of defendant that as it was accused of crimes. I 132 00:07:39,640 --> 00:07:42,000 Speaker 1: think this was based on his reading of the Constitution 133 00:07:42,560 --> 00:07:45,640 Speaker 1: and how our how our framing began, which was a 134 00:07:45,760 --> 00:07:48,920 Speaker 1: fear of an overreaching King of England who would often 135 00:07:49,040 --> 00:07:52,840 Speaker 1: lock people up without giving them process. Um. And for 136 00:07:52,880 --> 00:07:56,920 Speaker 1: that reason, even the court's conservatives, Justice Gorse, Justice Thomas 137 00:07:57,040 --> 00:08:01,040 Speaker 1: to a lesser degree. Um, there's tropical when the government 138 00:08:01,040 --> 00:08:03,640 Speaker 1: tries to advance a new reading a federal law that 139 00:08:03,720 --> 00:08:08,080 Speaker 1: affects their right celebrities and properties of people. Well, it's 140 00:08:08,160 --> 00:08:10,640 Speaker 1: it's fascinating when you look at the numbers after the term. 141 00:08:10,680 --> 00:08:14,080 Speaker 1: And thanks so much for your insights. That's Josh Blackman. 142 00:08:14,080 --> 00:08:16,920 Speaker 1: He's a professor of constitution law for South Texas College. 143 00:08:16,920 --> 00:08:21,280 Speaker 1: Of law, and his new book is Unraveled Obamacare, Religious liberty, 144 00:08:21,440 --> 00:08:27,360 Speaker 1: and Executive Power. Thanks for listening to the Bloomberg Law Podcast. 145 00:08:27,760 --> 00:08:31,840 Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud, 146 00:08:31,920 --> 00:08:35,800 Speaker 1: and on bloomberg dot com slash podcast. I'm June Basso. 147 00:08:36,280 --> 00:08:37,560 Speaker 1: This is Bloomberg