WEBVTT - With or Without Kavanaugh, Court Prepares for Big Term 0:00:03.480 --> 0:00:07.560 Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 0:00:07.640 --> 0:00:10.440 day we bring you insight and analysis into the most 0:00:10.480 --> 0:00:13.399 important legal news of the day. You can find more 0:00:13.480 --> 0:00:18.040 episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud, 0:00:18.320 --> 0:00:22.200 and on Bloomberg dot com slash Podcasts. We're live from 0:00:22.239 --> 0:00:26.240 the Bloomberg Interactive Broker Studio with over that Brett Kavanaugh. 0:00:26.320 --> 0:00:29.000 The Supreme Court will begin its new term on October one, 0:00:29.360 --> 0:00:31.880 and the justices will take on a number of seemingly 0:00:32.040 --> 0:00:35.920 ordinary cases that could have wide ranging implications for the country. 0:00:36.200 --> 0:00:39.680 Speaking to reporters this week, Louisiana Senator John Kennedy said 0:00:39.720 --> 0:00:42.320 he and his fellow Republicans were working to make sure 0:00:42.440 --> 0:00:45.640 Kavanaugh would be on the court from day one. We've 0:00:45.640 --> 0:00:47.920 got a deadline of October one, and that's when the 0:00:47.960 --> 0:00:51.200 Supreme Court starts, and I think we all the needed 0:00:52.080 --> 0:00:55.800 Joining me is Kimberly Strawbridge Robinson, Bloomberg Law, Supreme Court 0:00:55.840 --> 0:00:59.240 reporter Kimberly, this might be a sleeper term at the 0:00:59.280 --> 0:01:04.080 Supreme Compare this term to last term. Well, last term 0:01:04.200 --> 0:01:07.360 was really just an incredible term where we saw so 0:01:07.400 --> 0:01:11.200 many headline grabbing cases. We had cases where the judges 0:01:11.240 --> 0:01:14.520 were going to potentially decide such as you, as big 0:01:14.520 --> 0:01:18.440 as partisan gerrymandering of course, the controversial travel ban, and 0:01:18.560 --> 0:01:22.520 even a really high profile of dispute between religious freedom 0:01:22.600 --> 0:01:27.280 rights and LGBT protection. So, uh, it was quite monumentous term, 0:01:27.360 --> 0:01:31.199 but not totally out of uh, out of the realm 0:01:31.240 --> 0:01:33.440 of what we've been seeing from the Supreme Court over 0:01:33.480 --> 0:01:36.959 the last several terms. Now, it's not always the cases 0:01:37.040 --> 0:01:40.319 that start with the big headlines that have the most effects. 0:01:40.360 --> 0:01:43.800 In your latest piece, you quote Professor Jonathan Turley of 0:01:43.840 --> 0:01:47.760 the George Washington University Law School calling one of the 0:01:47.800 --> 0:01:51.440 cases coming up this term a trojan horse. Let's start 0:01:51.440 --> 0:01:55.160 with that. Well, sir, this case is called Gundy versus 0:01:55.280 --> 0:01:58.440 United States, and it really involves kind of a sleeping 0:01:58.520 --> 0:02:02.080 giant among constitution no law. And that's what's known as 0:02:02.720 --> 0:02:06.560 the non delegation doctrine. And it's really simply just that, 0:02:06.680 --> 0:02:11.239 you know, Congress can give some of its lawmaking authority 0:02:11.360 --> 0:02:15.239 away to administrative agencies that are in the executive branch, 0:02:15.520 --> 0:02:18.280 but it has to give the agency some guidance. It 0:02:18.360 --> 0:02:21.560 can't give away all of its lawmaking authority. Uh. And 0:02:21.639 --> 0:02:25.560 so the Supreme Court has cited this rule often, but 0:02:25.639 --> 0:02:29.040 it hasn't very often struck down laws based on this rule. 0:02:29.080 --> 0:02:31.320 And need the last time and only time that the 0:02:31.360 --> 0:02:35.520 Court has done it, uh, was in the nineteen thirties. Now, 0:02:36.080 --> 0:02:39.080 what effect might the case have if the Court does this? 0:02:39.240 --> 0:02:42.160 The United States and its briefing noted that nearly a 0:02:42.240 --> 0:02:45.760 dozen laws that the Court has the courts have upheld 0:02:45.919 --> 0:02:51.480 under this lenient standard might might be subjected to this. Well, 0:02:51.520 --> 0:02:54.280 that's right, and it really depends on how the Supreme 0:02:54.280 --> 0:02:57.400 Court ultimately comes down how broadly they say is a 0:02:57.480 --> 0:03:01.320 nondelegation doctrine applies? And so you know, if the Court 0:03:01.400 --> 0:03:05.480 is going to hold Congress to task very tightly and 0:03:05.480 --> 0:03:08.600 and make it, you know, make a really clear guidance 0:03:08.639 --> 0:03:11.400 to the agencies, then that could put you know, virtually 0:03:11.440 --> 0:03:15.880 unlimited laws um in play. If instead, the Court says, well, 0:03:16.000 --> 0:03:18.920 in general, Congress had a lot of leeway, but here 0:03:19.040 --> 0:03:22.760 it went too far. That's gonna affect fewer laws, So 0:03:23.280 --> 0:03:26.480 double jeopardy. It's a concept that most people are familiar 0:03:26.520 --> 0:03:29.480 with from TV and the movies at least, but they 0:03:29.520 --> 0:03:32.600 don't often understand all the implications of it. And there's 0:03:32.639 --> 0:03:35.640 a case asking the court to overturn a sixty year 0:03:35.640 --> 0:03:38.720 old precedent. Tell us about that, Well, that's right. This 0:03:38.760 --> 0:03:41.480 is gamble versus the United States, and it does involve 0:03:41.520 --> 0:03:45.200 the very confusing doctor and of double jeopardy. And this 0:03:45.280 --> 0:03:47.760 is really, at its most simplest, just the idea that 0:03:47.800 --> 0:03:51.160 an individual can't be tried over and over again for 0:03:51.200 --> 0:03:53.600 the same crime. At some point, Uh, you know, the 0:03:53.640 --> 0:03:56.600 government has to stop. They really only should get one 0:03:56.640 --> 0:03:59.720 bite of the apple. But there has been this long 0:04:00.000 --> 0:04:03.720 standing six year old exception to that doctrine, and that's 0:04:03.720 --> 0:04:06.960 called the separate sovereign's doctrine, the idea that if you 0:04:07.680 --> 0:04:11.120 a state could try you for the same crime as 0:04:11.200 --> 0:04:14.280 the federal government is trying you for. Now, in this case, 0:04:14.560 --> 0:04:18.400 people are saying that doctrine, that separate sovereigns doctrine, it 0:04:18.480 --> 0:04:21.880 has to go. So would that mean? We've seen civil 0:04:22.000 --> 0:04:25.720 rights cases where the federal government has used this in 0:04:25.839 --> 0:04:28.560 order to be able to pursue civil rights cases after 0:04:29.120 --> 0:04:32.640 a federal case was lost at the criminal trial with 0:04:32.839 --> 0:04:37.200 this effect that well, again it depends on how broadly, uh, 0:04:37.279 --> 0:04:41.080 the Supreme Court comes down, and so uh, there is 0:04:41.160 --> 0:04:44.960 some concern that whenever there's a failed state criminal action 0:04:45.360 --> 0:04:47.920 that we would like the federal government to be able 0:04:47.960 --> 0:04:51.240 to come in and punish the same conduct under civil 0:04:51.360 --> 0:04:55.640 rights violations. The most famous example probably is that of 0:04:56.160 --> 0:04:58.839 UM the officers and the Rodney King beating where this 0:04:59.000 --> 0:05:02.520 happened U. But you know, the court could rule a 0:05:02.680 --> 0:05:05.920 bit more narrowly if it wants to overturn this doctrine 0:05:06.200 --> 0:05:08.520 and just say that, you know, it can't be the 0:05:08.600 --> 0:05:13.279 exact same laws that these states are operating under that 0:05:13.360 --> 0:05:15.800 it has that if you can find just a slight difference, 0:05:16.000 --> 0:05:18.120 then that's going to be enough to get around double jeopardy. 0:05:18.200 --> 0:05:20.799 So again, it depends on what the Supreme Court ultimately says. 0:05:21.000 --> 0:05:25.000 And last term, kimberly, did the Court issue a lot 0:05:25.080 --> 0:05:29.600 of narrow rulings. Well, they had a lot of rulings 0:05:29.600 --> 0:05:32.560 that really got around a lot of the big merits 0:05:32.640 --> 0:05:35.919 questions um that they were asking. And so you know, 0:05:35.960 --> 0:05:38.400 the travel ban is one exception where the court came 0:05:38.480 --> 0:05:42.320 down and uh, you know on the merits of that decision. 0:05:42.760 --> 0:05:44.640 But in the other ones that I mentioned, the court 0:05:44.680 --> 0:05:47.120 really side steps the issue and kind of kick the 0:05:47.160 --> 0:05:50.280 can down the down the way for another day. So 0:05:50.560 --> 0:05:52.680 we we did see a lot of narrow and kind 0:05:52.720 --> 0:05:57.200 of circular decisions from the Court last year. So Sherylyn 0:05:57.320 --> 0:05:59.920 Eiffel of the n double a CP Legal Defense Funds, 0:06:00.160 --> 0:06:04.080 there could be cases this term with lasting effects on minorities. 0:06:04.720 --> 0:06:08.240 Tell us about one of those cases. Well, right, the 0:06:08.279 --> 0:06:11.039 Supreme Court has already agreed to hear a case called Abendski, 0:06:11.720 --> 0:06:15.560 which deals with the Fair Debt Collections Practices Act. Now, 0:06:15.600 --> 0:06:18.600 this is a longtime statue that is meant to curb 0:06:19.360 --> 0:06:23.080 deceptive practices in in lending, and it's very important for 0:06:23.240 --> 0:06:27.039 minority groups because studies have shown that they are more 0:06:27.080 --> 0:06:31.240 often uh, the target of kind of predatory lending, and 0:06:31.279 --> 0:06:34.320 so this is an issue of whether how broadly those 0:06:34.360 --> 0:06:38.800 protections apply in certain floor closure proceedings. Now, is the 0:06:38.880 --> 0:06:44.279 Court taking up any cases that have already made headlines? Well, 0:06:44.400 --> 0:06:47.800 the Court isn't done yet filling out it's it's docket, 0:06:47.839 --> 0:06:50.240 and so we don't have those just yet. But there 0:06:50.240 --> 0:06:53.520 are several that are waiting in the pipeline. In particular, 0:06:53.680 --> 0:06:57.599 there's one about how much federal law UH protects against 0:06:57.680 --> 0:07:02.080 discrimination based on sexual orientation both in schools and an 0:07:02.080 --> 0:07:05.200 employment and that's something to keep an eye on if 0:07:05.200 --> 0:07:08.120 the justices decided to grant that case. Now, if the 0:07:08.200 --> 0:07:11.640 Justices go into the October term with just eight justices, 0:07:11.680 --> 0:07:14.960 if Kavanaugh has not been confirmed yet, how will that 0:07:15.040 --> 0:07:18.840 affect what cases they decide to take as the term 0:07:18.880 --> 0:07:21.800 goes on. Well, we have a pretty good idea about 0:07:21.840 --> 0:07:24.040 how this will affect that. And that's because you know 0:07:24.080 --> 0:07:27.080 the court that recently with just eight members, and we 0:07:27.120 --> 0:07:30.080 could see a real effect that that had on its stocket, 0:07:30.360 --> 0:07:32.440 both in the terms of the number of cases that 0:07:32.480 --> 0:07:34.960 it took. It didn't take as many cases, and also 0:07:35.000 --> 0:07:37.360 in the kinds of cases that it took. And so 0:07:37.600 --> 0:07:40.720 what we saw was that they had uh cases that 0:07:40.880 --> 0:07:45.800 weren't as controversial, that didn't risk getting these evenly split decisions. 0:07:46.440 --> 0:07:50.160 Always a pleasure to have you on Kimberly. That's Kimberly Strawbridge, Robinson, 0:07:50.240 --> 0:07:58.160 Bloomberg Loss Mean Court reporters. We're alive from the Bloomberg 0:07:58.280 --> 0:08:03.000 Interactive Brokers studio and in Washington today, US antitrust enforcers 0:08:03.000 --> 0:08:05.920 are kicking off a second day of hearings to explore 0:08:05.960 --> 0:08:10.440 whether their playbook needs revamping because of rising industry concentration 0:08:10.600 --> 0:08:14.400 and the dominance of tech giants joining me is Joel Mitnick, 0:08:14.600 --> 0:08:18.760 a partner at Cadwalader. So, Joel, have mergers made the 0:08:18.800 --> 0:08:23.119 American economy less competitive? Or is something else at work? 0:08:24.720 --> 0:08:27.400 Thank you June, first of all for for having me 0:08:27.880 --> 0:08:31.640 on the show. Uh So, I don't think mergers have 0:08:31.880 --> 0:08:35.720 made the American economy less competitive, and I think that 0:08:35.800 --> 0:08:40.120 the merger standard at the agencies are actually pretty rigorous 0:08:40.120 --> 0:08:43.360 in terms of the review. I think that there are 0:08:43.400 --> 0:08:45.680 probably a lot of other factors at play, but I 0:08:45.800 --> 0:08:50.719 don't think competition or lack of competition enforcement is the 0:08:50.760 --> 0:08:54.560 reason for any lack of competitiveness. I'm not sure that 0:08:54.600 --> 0:08:57.120 there is a lack of competitiveness, by the way, So 0:08:57.200 --> 0:09:00.439 you disagree with the economists and lay years who have 0:09:00.600 --> 0:09:06.880 called for more aggressive enforcement. So it's not actually more 0:09:06.920 --> 0:09:10.439 aggressive enforcements so much as I think the interesting thing 0:09:10.520 --> 0:09:13.600 about the current hearings in Washington is that people are 0:09:13.640 --> 0:09:21.720 calling for different enforcement and the key standard that antitrust 0:09:21.800 --> 0:09:25.439 lawyers have been using since probably the mid nineties, when 0:09:25.480 --> 0:09:29.120 the so called Chicago School developed this theory of consumer 0:09:29.160 --> 0:09:33.440 welfare has focused on whether a given merger or a 0:09:33.480 --> 0:09:38.800 conduct can result in higher prices, less choice, less innovation, 0:09:39.400 --> 0:09:42.280 And the question is whether that should continue as the 0:09:42.400 --> 0:09:46.800 standard or whether in the newer economy, particularly with these 0:09:46.920 --> 0:09:53.360 huge tech web giants like Amazon and Google, have they 0:09:53.800 --> 0:09:59.800 changed the landscape with for example, um low cost re 0:10:00.040 --> 0:10:05.760 production of digital files or giving away products at below cost. 0:10:06.240 --> 0:10:09.240 Has it changed the nature of what it means to 0:10:09.360 --> 0:10:13.960 gain dominance because they can gain dominance now with a 0:10:14.120 --> 0:10:17.720 very very low cost structure, which traditionally would be viewed 0:10:17.720 --> 0:10:20.800 as pro competitive. And so that's really the question. It's 0:10:20.840 --> 0:10:23.880 not so much as more aggressive as it is do 0:10:23.920 --> 0:10:27.000 we have the right standard? So what kind of standard 0:10:27.040 --> 0:10:32.160 would you use if you don't want to use price effects? Well, 0:10:32.200 --> 0:10:34.920 I think that's what the hearings are trying to explore. 0:10:35.400 --> 0:10:39.920 Uh and this is probably consistent with the progressive movement 0:10:40.000 --> 0:10:43.960 that's been going on throughout America. UH. In in opening 0:10:44.000 --> 0:10:49.360 up today's hearing, I understand Commissioner slaughter Um made an 0:10:49.400 --> 0:10:53.760 observation that, UH, it can't possibly be the case that 0:10:54.280 --> 0:10:58.240 these lengthy conclusion, these lengthy hearings would lead to quote 0:10:58.240 --> 0:11:02.400 a conclusion that nothing should change. So uh and and 0:11:02.480 --> 0:11:06.480 she came from uh Senator Schumer's staff, and Senator Schumer 0:11:06.840 --> 0:11:10.480 is on record for expanding the kinds of analysis and 0:11:10.480 --> 0:11:13.720 the kinds of effects that and I trust law takes 0:11:13.720 --> 0:11:18.360 into account. For example, people today are wondering whether an 0:11:18.400 --> 0:11:24.000 I trust standards should take account of labor, effects of 0:11:24.320 --> 0:11:29.359 labor on effects on labor of a merger, or other conduct, 0:11:29.480 --> 0:11:33.560 whether it should be looking at concentration of wealth. So 0:11:33.800 --> 0:11:36.720 in a way, it's kind of a return to the 0:11:36.840 --> 0:11:41.120 populist an I trust movement that existed before the nineties 0:11:41.160 --> 0:11:44.640 for a very long time that essentially rested on the 0:11:44.640 --> 0:11:49.880 notion biggest bad. And today I think the analysis that 0:11:50.440 --> 0:11:55.840 commission Slaughter and Commissioner Chopra and others are raising UH 0:11:55.960 --> 0:11:59.080 is much more sophisticated than simply biggest bad, but it 0:11:59.200 --> 0:12:02.680 is that popular, this notion that an I trust shouldn't 0:12:02.720 --> 0:12:05.880 be just focused on price to consumers but should look 0:12:05.880 --> 0:12:10.680 at broader economic interests. I'm not sure that anybody knows 0:12:10.760 --> 0:12:14.080 yet what the right standard is for the modern economy, 0:12:14.120 --> 0:12:17.280 but I think it's probably a good idea that it's 0:12:17.320 --> 0:12:20.600 being explored in these kinds of hearings. Do you agree, though, 0:12:20.679 --> 0:12:25.400 with the conclusion of many industry analysts that there are 0:12:25.440 --> 0:12:29.079 a lot of industries that have grown more concentrated, including 0:12:29.080 --> 0:12:35.360 even agriculture, healthcare, airlines. So I think that that is 0:12:35.400 --> 0:12:41.400 true UM and it's not clear why necessarily that is, 0:12:42.120 --> 0:12:45.800 but the fact that there is concentration I think in 0:12:45.960 --> 0:12:51.719 the older biggest bed analysis would probably be the equivalent 0:12:52.040 --> 0:12:58.520 of saying that those concentrations are in a competitive Again, 0:12:58.559 --> 0:13:01.440 I think with the economic tools that we have available 0:13:01.520 --> 0:13:05.200 to us, we're able to look at the industries that 0:13:05.240 --> 0:13:09.880 have concentrated and see that there are also a lot 0:13:09.960 --> 0:13:13.760 of efficiency gains. And then the question becomes, are the 0:13:13.800 --> 0:13:19.439 efficiency gains and the scale that the more concentrated competitors 0:13:19.440 --> 0:13:24.640 can achieve are they actually having more vigorous competition. So 0:13:24.720 --> 0:13:27.520 in a lot of areas, for example, old brick and 0:13:27.600 --> 0:13:33.920 mortar um UH companies and industries may have concentrated, but 0:13:34.160 --> 0:13:38.440 that concentration allows them more strength and more scale in 0:13:38.559 --> 0:13:41.600 order to compete against the Internet companies and the web 0:13:41.640 --> 0:13:44.959 based companies. So again, I don't think that we yet 0:13:45.040 --> 0:13:47.800 know what the answer is. I think it's very good 0:13:47.840 --> 0:13:51.920 that we're studying the question. The Justice Department's Antitrust Division 0:13:51.960 --> 0:13:54.240 has asked the U. S. Court of Appeals in DC 0:13:54.400 --> 0:13:57.400 to reverse the ruling by Judge leon in the A 0:13:57.520 --> 0:14:00.920 T and T Time Warner case out a minute here, 0:14:00.960 --> 0:14:05.600 What's what's your opinion of where that's going to go? Well, 0:14:05.640 --> 0:14:07.640 I think that was a case that probably should never 0:14:07.679 --> 0:14:12.920 have been brought, and having brought it, the division is 0:14:12.960 --> 0:14:15.440 between a rock and hard place because they have a 0:14:15.520 --> 0:14:18.840 terrible precedent on their hand, and so they have to 0:14:18.960 --> 0:14:23.040 roll the dice whether that precedent will become entrenched, maybe 0:14:23.080 --> 0:14:26.960 even made worse for them, or whether they can reverse 0:14:27.000 --> 0:14:30.800 it on appeal. Um. I think probably that's the reason 0:14:30.840 --> 0:14:34.360 that the Solicitor General of the United States reportedly opposed 0:14:34.360 --> 0:14:37.600 the appeal, because if they lose this appeal, it will 0:14:37.640 --> 0:14:43.120 have a much more entrenching effect in terms of the 0:14:43.280 --> 0:14:46.720 d J having a very hard time in the next 0:14:46.840 --> 0:14:49.200 vertical cave. All Right, we'll have to leave it there, Joel. 0:14:49.280 --> 0:14:53.120 That's Joel Mtnick of Cadwalader. Thanks for listening to the 0:14:53.120 --> 0:14:56.480 Bloomberg Law Podcast. You can subscribe and listen to the 0:14:56.520 --> 0:15:00.480 show on Apple Podcasts, SoundCloud, and on Bloomberg dot com 0:15:00.520 --> 0:15:10.520 slash podcast. I'm June Brosso. This is Bloomberg. M m HM.