1 00:00:02,160 --> 00:00:05,800 Speaker 1: You're listening to the Bloomberg Law Podcast. Catch us weekdays 2 00:00:05,840 --> 00:00:09,680 Speaker 1: at ten pm Eastern on Bloomberg dot Com, the iHeartRadio app, 3 00:00:09,720 --> 00:00:12,639 Speaker 1: and the Bloomberg Business app, or listen on demand wherever 4 00:00:12,680 --> 00:00:13,800 Speaker 1: you get your podcasts. 5 00:00:16,079 --> 00:00:19,439 Speaker 2: I'm Kimbilly Robinson and I'm Lydia Wheeler. We're filling in 6 00:00:19,480 --> 00:00:22,079 Speaker 2: for June Grasso, who's out this week ahead. In the hour, 7 00:00:22,239 --> 00:00:24,200 Speaker 2: we'll talk about the fight at the Supreme Court over 8 00:00:24,320 --> 00:00:27,280 Speaker 2: a six billion dollar bankruptcy settlement that could release the 9 00:00:27,280 --> 00:00:30,880 Speaker 2: billionaire owners of Purdue Pharma from all liability related to 10 00:00:30,920 --> 00:00:32,520 Speaker 2: the opioid overdose deaths. 11 00:00:32,720 --> 00:00:35,680 Speaker 3: But first we'll talk about the late Justice Saunder Day O'Connor, 12 00:00:35,800 --> 00:00:37,960 Speaker 3: the first woman to sit on the US Supreme Court. 13 00:00:38,520 --> 00:00:42,239 Speaker 4: So today I'm pleased to announce that, upon completion of 14 00:00:42,280 --> 00:00:45,760 Speaker 4: all the necessary checks by the Federal Bureau of Investigation, 15 00:00:46,320 --> 00:00:48,920 Speaker 4: I will send to the Senate the nomination of Judge 16 00:00:48,920 --> 00:00:53,000 Speaker 4: Sandra Day O'Connor of Arizona Court of Appeals for confirmation 17 00:00:53,640 --> 00:00:57,160 Speaker 4: as an Associate Justice of the United States Supreme Court. 18 00:00:57,440 --> 00:01:01,040 Speaker 4: She is truly a person for all seasons, possessing those 19 00:01:01,120 --> 00:01:05,720 Speaker 4: unique qualities of temperament, fairness, intellectual capacity, and devotion to 20 00:01:05,760 --> 00:01:08,800 Speaker 4: the public good, which have characterized the one hundred and 21 00:01:08,800 --> 00:01:10,840 Speaker 4: one brethren who have preceded her. 22 00:01:11,440 --> 00:01:14,600 Speaker 3: That was President Ronald Reagan, who nominated O'Connor in July 23 00:01:14,840 --> 00:01:17,840 Speaker 3: nineteen eighty one. The justice died last week at the 24 00:01:17,840 --> 00:01:20,240 Speaker 3: age of ninety three. Joining us to talk about her 25 00:01:20,240 --> 00:01:23,119 Speaker 3: trailblazing time on the bench is New York University law 26 00:01:23,160 --> 00:01:26,080 Speaker 3: professor Melissa Murray, who co hosts a podcast on the 27 00:01:26,080 --> 00:01:29,240 Speaker 3: Supreme Court called Strick Scrutiny. Thanks so much for joining us. 28 00:01:29,560 --> 00:01:30,479 Speaker 5: Thanks for having me. 29 00:01:31,120 --> 00:01:33,080 Speaker 3: Hey, Melissa, I was wondering if you could start by 30 00:01:33,120 --> 00:01:36,000 Speaker 3: telling us a little bit about how Justice O'Connor got 31 00:01:36,040 --> 00:01:38,200 Speaker 3: on the High Court bench. Just wondering what was the 32 00:01:38,240 --> 00:01:42,040 Speaker 3: moment like when she was nominated to the Court as 33 00:01:42,080 --> 00:01:43,840 Speaker 3: the first female justice. 34 00:01:44,080 --> 00:01:47,360 Speaker 5: Well, obviously, this is a campaign promise that Ronald Reagan 35 00:01:47,600 --> 00:01:51,000 Speaker 5: made in sort of the wake of the women's rights movement. 36 00:01:51,520 --> 00:01:54,720 Speaker 5: But when he had to actually go about finding a 37 00:01:54,760 --> 00:01:58,640 Speaker 5: Republican women to nominate, he didn't have a lot of choices. 38 00:01:58,720 --> 00:02:01,840 Speaker 5: On the federal bench didn't really have a great track 39 00:02:01,880 --> 00:02:04,920 Speaker 5: record of putting women on the bench, and in fact, 40 00:02:04,960 --> 00:02:07,640 Speaker 5: most of the women who had been on the federal 41 00:02:07,680 --> 00:02:10,560 Speaker 5: bench at that point had been appointed by Jimmy Carter, 42 00:02:10,680 --> 00:02:14,280 Speaker 5: and that included Ruth Bader Ginsburg. So while there were 43 00:02:14,360 --> 00:02:16,920 Speaker 5: a number of choices on the federal bench, they weren't 44 00:02:16,960 --> 00:02:22,480 Speaker 5: necessarily ideologically aligned with Reagan and his electorate. So he 45 00:02:22,520 --> 00:02:24,960 Speaker 5: had to look a little further afield. He cast his 46 00:02:25,160 --> 00:02:29,040 Speaker 5: gaze across the state courts, and he settled on Arizona, 47 00:02:29,080 --> 00:02:33,840 Speaker 5: where Sandra D. O'Connor had been a politician. She had 48 00:02:33,880 --> 00:02:36,399 Speaker 5: been the majority leader of the Arizona Senate and from 49 00:02:36,400 --> 00:02:38,720 Speaker 5: there she had gone on to be a trial judge 50 00:02:38,720 --> 00:02:41,320 Speaker 5: in the Arizona State system and then a judge on 51 00:02:41,360 --> 00:02:44,440 Speaker 5: the Intermediate Court of Appeals in Arizona. And she'd been 52 00:02:44,520 --> 00:02:48,359 Speaker 5: very active in Republican politics in the state, worked very 53 00:02:48,360 --> 00:02:52,560 Speaker 5: closely with the Goldwater Campaign, a real mover and shaker 54 00:02:52,600 --> 00:02:56,760 Speaker 5: in Republican circles in Arizona, and she really rose to 55 00:02:56,840 --> 00:02:57,160 Speaker 5: the top. 56 00:02:57,440 --> 00:03:01,160 Speaker 2: Now, despite being appointed by a Republican and Justice O'Connor 57 00:03:01,240 --> 00:03:04,120 Speaker 2: became really a decisive vote on a number of big issues. 58 00:03:04,200 --> 00:03:08,040 Speaker 2: We're talking abortion, affirmative action. So I'm wondering, can you 59 00:03:08,040 --> 00:03:10,040 Speaker 2: tell us about a few of those notable decisions? 60 00:03:10,560 --> 00:03:15,040 Speaker 5: Sure, even straight away when she joined the court, she 61 00:03:15,240 --> 00:03:19,400 Speaker 5: definitely had some decisions that really have become canonical the 62 00:03:19,440 --> 00:03:22,200 Speaker 5: things that you know we teach now in constitutional law. 63 00:03:22,360 --> 00:03:24,880 Speaker 5: One of them was a decision in the nineteen eighties 64 00:03:24,880 --> 00:03:28,480 Speaker 5: called Mississippi University for Women Versus Hogan, which was a 65 00:03:28,600 --> 00:03:32,520 Speaker 5: challenge brought by a man, Joe Hogan. He sought admission 66 00:03:32,560 --> 00:03:36,200 Speaker 5: to a nursing program at the University of Mississippi for women, 67 00:03:36,280 --> 00:03:39,120 Speaker 5: and he was denied admission because the program was exclusively 68 00:03:39,200 --> 00:03:41,480 Speaker 5: for women. So this is a sort of predecessor to 69 00:03:41,680 --> 00:03:43,840 Speaker 5: the VMI case that was later decided by the Court 70 00:03:44,160 --> 00:03:48,240 Speaker 5: in nineteen ninety six. In that case, the University of 71 00:03:48,240 --> 00:03:51,920 Speaker 5: Mississippi said, this program is exclusively for women because we 72 00:03:51,960 --> 00:03:55,600 Speaker 5: are trying to remedy the historic exclusion that women have 73 00:03:55,800 --> 00:03:59,080 Speaker 5: faced in the employment market. And just as that's on 74 00:03:59,160 --> 00:04:01,320 Speaker 5: our kind of smell tests on this, and was like, 75 00:04:01,360 --> 00:04:03,680 Speaker 5: you know, women really haven't had a lot of barrier 76 00:04:03,960 --> 00:04:08,160 Speaker 5: to being nurses. This actually seems like a program that's 77 00:04:08,280 --> 00:04:11,240 Speaker 5: rooted in a stereotype that the only kind of medical 78 00:04:11,280 --> 00:04:14,640 Speaker 5: profession for which women are well suited is nursing. And 79 00:04:14,680 --> 00:04:17,599 Speaker 5: so on that ground, she said this was not really 80 00:04:17,720 --> 00:04:21,760 Speaker 5: a program where a gender classification could be upheld. This 81 00:04:21,839 --> 00:04:26,040 Speaker 5: was something more insidious, more of a stereotype, and she invalidated, 82 00:04:26,080 --> 00:04:28,279 Speaker 5: and she got a majority of the court to do so. 83 00:04:28,320 --> 00:04:31,760 Speaker 5: She would later go on to broker some really important 84 00:04:31,839 --> 00:04:36,080 Speaker 5: compromises on landmark issues like abortion. For example, as a 85 00:04:36,240 --> 00:04:40,679 Speaker 5: justice of the Court, she evinced a real skepticism of abortion, 86 00:04:41,080 --> 00:04:44,240 Speaker 5: not necessarily in whether or not in right existed, but 87 00:04:44,400 --> 00:04:47,479 Speaker 5: whether or not the right existed and could coexist with 88 00:04:47,520 --> 00:04:51,280 Speaker 5: the state's interests in regulating the procedure itself. And recall, 89 00:04:51,720 --> 00:04:54,680 Speaker 5: she had been a legislature at the state level, and 90 00:04:54,720 --> 00:04:57,640 Speaker 5: so she very much believed in the prerogatives of states 91 00:04:57,640 --> 00:05:00,520 Speaker 5: over certain things like health and welfare. And so she 92 00:05:00,640 --> 00:05:04,560 Speaker 5: really brought this to her judging on the issue of abortion. 93 00:05:05,000 --> 00:05:07,840 Speaker 5: And she was the one who articulated in a series 94 00:05:07,880 --> 00:05:11,000 Speaker 5: of separate opinions in cases like Webster and Thornberg, this 95 00:05:11,200 --> 00:05:13,960 Speaker 5: idea of an undue burden. And then in nineteen ninety two, 96 00:05:13,960 --> 00:05:17,040 Speaker 5: when the Court took up Planned Parenthood versus Casey, this 97 00:05:17,240 --> 00:05:21,520 Speaker 5: challenge to versus Wade, she really had an opportunity to 98 00:05:21,640 --> 00:05:24,440 Speaker 5: put that into practice. It seemed to everyone that the 99 00:05:24,440 --> 00:05:28,400 Speaker 5: Court was poised to strike down Row versus Wade, But she, 100 00:05:28,760 --> 00:05:32,640 Speaker 5: along with Justices Kennedy and Suitor, formed detroika that really 101 00:05:32,720 --> 00:05:36,560 Speaker 5: compromised on this question. Reading the public mood, recognizing the 102 00:05:36,600 --> 00:05:40,000 Speaker 5: interest and story decisive, they broke her to compromise that 103 00:05:40,040 --> 00:05:44,480 Speaker 5: would give states the opportunity to broadly regulate abortion while 104 00:05:44,600 --> 00:05:47,719 Speaker 5: still upholding the idea that there was a constitutionally protected 105 00:05:47,839 --> 00:05:50,560 Speaker 5: right of a woman to choose an abortion. And that 106 00:05:50,680 --> 00:05:53,200 Speaker 5: was one of her most significant decisions, and you see 107 00:05:53,240 --> 00:05:56,159 Speaker 5: some real glimmers of her interests in women's rights in 108 00:05:56,160 --> 00:05:59,880 Speaker 5: that opinion. One of the provisions of the broader abortion 109 00:06:00,120 --> 00:06:03,599 Speaker 5: law that was invalidated in that decision was a spouthal 110 00:06:03,680 --> 00:06:07,560 Speaker 5: notification provision that she said really endangered the lives of 111 00:06:07,560 --> 00:06:11,839 Speaker 5: women in abusive relationships and made clear that women who 112 00:06:12,120 --> 00:06:15,839 Speaker 5: were in marriages were not necessarily equal to their husbands 113 00:06:15,839 --> 00:06:18,960 Speaker 5: in terms of decision making authority. And so she did 114 00:06:18,960 --> 00:06:21,680 Speaker 5: not like the idea that women would be subservient to 115 00:06:21,760 --> 00:06:24,120 Speaker 5: husbands or would depend on husbands for making such a 116 00:06:24,120 --> 00:06:27,480 Speaker 5: decision like this, and so she invalidated it and then 117 00:06:27,560 --> 00:06:30,880 Speaker 5: again really emphasized the threat to women who were in 118 00:06:30,880 --> 00:06:32,320 Speaker 5: an abusive or violent. 119 00:06:32,040 --> 00:06:35,919 Speaker 3: Relationship you started off talking Melissa about barriers from women 120 00:06:35,960 --> 00:06:39,000 Speaker 3: that may or may not exist in the nursing space. 121 00:06:39,720 --> 00:06:42,440 Speaker 3: Even once Justice O'Connor got on the bench, there must 122 00:06:42,440 --> 00:06:45,680 Speaker 3: have been some barriers to being the first woman on 123 00:06:45,720 --> 00:06:47,480 Speaker 3: the court. Can you talk a little bit about what 124 00:06:47,520 --> 00:06:49,320 Speaker 3: that must have been like for her day in and 125 00:06:49,400 --> 00:06:49,839 Speaker 3: day out. 126 00:06:50,440 --> 00:06:53,279 Speaker 5: She mentioned this a few times when she talked about 127 00:06:53,279 --> 00:06:55,000 Speaker 5: her tenure on the floard, like it was hard to 128 00:06:55,040 --> 00:06:57,000 Speaker 5: be the first. I think she very much felt the 129 00:06:57,040 --> 00:07:01,599 Speaker 5: weight of her historic appointment. She said, you know, very frankly, 130 00:07:02,080 --> 00:07:03,640 Speaker 5: it was great to be the first, but she didn't 131 00:07:03,680 --> 00:07:05,840 Speaker 5: want to be the last. She didn't believe that her 132 00:07:05,920 --> 00:07:11,200 Speaker 5: gender necessarily said or influenced the way that she judged. 133 00:07:11,200 --> 00:07:12,760 Speaker 5: She said, you know, a wise old man and a 134 00:07:12,760 --> 00:07:15,320 Speaker 5: wise old woman would reach the same conclusions. But it 135 00:07:15,360 --> 00:07:19,200 Speaker 5: was really clear that in some of these cases, particularly 136 00:07:19,320 --> 00:07:24,160 Speaker 5: in cases involving women's rights and gender rights, she very 137 00:07:24,320 --> 00:07:28,000 Speaker 5: much came down in favor of women's rights and had 138 00:07:28,160 --> 00:07:31,920 Speaker 5: perhaps a more keen eye for the kinds of injustices 139 00:07:31,960 --> 00:07:36,440 Speaker 5: that women had experienced, and she experienced some of them herself. 140 00:07:36,520 --> 00:07:39,360 Speaker 5: Very famously. She graduated near the top of the class 141 00:07:39,360 --> 00:07:42,280 Speaker 5: at Stanford Law school and could not find a job 142 00:07:42,320 --> 00:07:45,160 Speaker 5: in the legal field as a lawyer. She was told 143 00:07:45,280 --> 00:07:47,640 Speaker 5: to get a job as a legal secretary, was offered 144 00:07:47,720 --> 00:07:51,440 Speaker 5: jobs as as a legal secretary. So I think she 145 00:07:51,600 --> 00:07:54,320 Speaker 5: understood that very well, and she also spoke about how 146 00:07:54,960 --> 00:07:58,000 Speaker 5: much of a relief it was and a joy when 147 00:07:58,160 --> 00:08:01,360 Speaker 5: Ruth Bader Ginsberg joined the Core in nineteen ninety three, 148 00:08:01,400 --> 00:08:04,080 Speaker 5: which she was no longer the only woman on the court. 149 00:08:04,120 --> 00:08:07,160 Speaker 5: And you know, they were two very different jurists in 150 00:08:07,200 --> 00:08:10,880 Speaker 5: some cases diametrically opposed in terms of their jurisprudence, but 151 00:08:11,040 --> 00:08:13,920 Speaker 5: on the question of women's rights they were often in 152 00:08:14,040 --> 00:08:17,520 Speaker 5: its alignment and voted together ninety percent of the time 153 00:08:17,560 --> 00:08:18,720 Speaker 5: in women's rights cases. 154 00:08:19,640 --> 00:08:22,040 Speaker 2: So, you know, Justice O'Connor was known for being the 155 00:08:22,040 --> 00:08:24,600 Speaker 2: first female justice on the Court, but she was also 156 00:08:24,680 --> 00:08:27,720 Speaker 2: known for being the last justice to have any prior 157 00:08:27,840 --> 00:08:30,640 Speaker 2: elected political experience, you know, before she was confirmed to 158 00:08:30,680 --> 00:08:32,360 Speaker 2: the court. Can you tell us more about that. I 159 00:08:32,400 --> 00:08:35,000 Speaker 2: know you mentioned it before about you know, her time 160 00:08:35,720 --> 00:08:38,839 Speaker 2: in Arizona, but can you walk us through what her 161 00:08:39,080 --> 00:08:40,040 Speaker 2: background was there? 162 00:08:40,280 --> 00:08:40,439 Speaker 6: Well. 163 00:08:40,559 --> 00:08:44,240 Speaker 5: I think to today's listener, the idea of a judge 164 00:08:44,240 --> 00:08:46,720 Speaker 5: who was also a politician seems a little far field, 165 00:08:46,760 --> 00:08:49,520 Speaker 5: because we just don't have that profile on the Court anymore. 166 00:08:49,520 --> 00:08:52,240 Speaker 5: I think the person who comes closest to it is 167 00:08:52,280 --> 00:08:56,280 Speaker 5: someone like Justice Kagan, who had to be relatively political 168 00:08:56,440 --> 00:08:59,120 Speaker 5: as the dean of Harvard Law School, but certainly was 169 00:08:59,160 --> 00:09:02,559 Speaker 5: not an elected in that way. But for a very 170 00:09:02,559 --> 00:09:05,920 Speaker 5: long time, this was not an unusual profile for a 171 00:09:06,080 --> 00:09:10,600 Speaker 5: justice to have. Earl Warren very famously came from California politics. HUGO. 172 00:09:10,640 --> 00:09:14,040 Speaker 5: Black had been a senator from Alabama, and Jessice O'Connor, 173 00:09:14,120 --> 00:09:17,800 Speaker 5: of course, spent a lot of time in the Arizona 174 00:09:17,840 --> 00:09:22,480 Speaker 5: State legislature, and it did inform her judging. She very 175 00:09:22,559 --> 00:09:26,640 Speaker 5: much believed in this question of federalism. She was one 176 00:09:26,640 --> 00:09:30,040 Speaker 5: of the stalwart people on the Court on the sort 177 00:09:30,040 --> 00:09:33,319 Speaker 5: of new federalism that really sought to make a clear 178 00:09:33,360 --> 00:09:36,400 Speaker 5: divide between the progatives of the states and that which 179 00:09:36,480 --> 00:09:38,679 Speaker 5: was then reserved for the federal government, and making sure 180 00:09:38,679 --> 00:09:41,600 Speaker 5: there was a clean line and that states maintained their 181 00:09:41,640 --> 00:09:47,200 Speaker 5: regulatory progatives. She also, i think applied those clients of 182 00:09:47,480 --> 00:09:51,800 Speaker 5: political experiences in the way she approached her colleagues and 183 00:09:52,040 --> 00:09:55,840 Speaker 5: the way she approached judging with an eye toward where 184 00:09:55,920 --> 00:09:59,520 Speaker 5: the public mood was right, so she was very good 185 00:09:59,600 --> 00:10:02,920 Speaker 5: at broke compromises. I think the Casey decision stands out 186 00:10:03,160 --> 00:10:06,800 Speaker 5: in that way. But she also was very adapt at 187 00:10:06,840 --> 00:10:09,440 Speaker 5: sort of understanding where the mood of the country was 188 00:10:09,520 --> 00:10:12,120 Speaker 5: on hot button issues and making sure the Court didn't 189 00:10:12,120 --> 00:10:14,920 Speaker 5: get too far out ahead of the country or lag 190 00:10:15,000 --> 00:10:18,839 Speaker 5: too far behind. And that often meant that she wasn't 191 00:10:18,840 --> 00:10:23,800 Speaker 5: advancing a broad ideological or theoretical agenda about what the 192 00:10:23,840 --> 00:10:27,840 Speaker 5: Constitution should mean, but rather was making very incremental, narrow 193 00:10:27,920 --> 00:10:30,920 Speaker 5: decisions that really huge to the four corners of each 194 00:10:31,000 --> 00:10:32,040 Speaker 5: case that was presented. 195 00:10:32,320 --> 00:10:34,680 Speaker 2: Coming up on the program, we'll talk more with Melissa 196 00:10:34,760 --> 00:10:38,160 Speaker 2: Murray about the late Justice Sandradale O'Connor. Remember you can 197 00:10:38,200 --> 00:10:40,360 Speaker 2: always get the latest legal news by listening to our 198 00:10:40,400 --> 00:10:43,880 Speaker 2: Bloomberg Law podcast on Apples, Spotify, or wherever it is 199 00:10:43,960 --> 00:10:47,560 Speaker 2: you get your podcasts. I'm Lydia Wheeler and I'm Kimberlee Robinson. 200 00:10:47,840 --> 00:10:48,880 Speaker 2: This is Bloomberg. 201 00:10:56,679 --> 00:11:00,160 Speaker 1: You're listening to the Bloomberg Law Podcast. Catch the program 202 00:11:00,160 --> 00:11:03,520 Speaker 1: weekdays at ten pm Eastern on Bloomberg Radio, the tune 203 00:11:03,559 --> 00:11:06,520 Speaker 1: in app, Bloomberg dot Com, and the Bloomberg Business app. 204 00:11:06,559 --> 00:11:09,360 Speaker 1: You can also listen live on Amazon Alexa from our 205 00:11:09,400 --> 00:11:14,120 Speaker 1: flagship New York station. Just Say Alexa play Bloomberg eleven thirty. 206 00:11:15,720 --> 00:11:19,439 Speaker 2: I'm Lydia Wheeler and I'm Kimberly Robinson in for June Grosso. 207 00:11:20,360 --> 00:11:25,000 Speaker 7: You may be surprised that I'm promoting civics teaching and 208 00:11:25,120 --> 00:11:29,199 Speaker 7: learning using online media. I'm not an expert in it, 209 00:11:29,360 --> 00:11:32,880 Speaker 7: but these are the new tools of civic engagement for 210 00:11:33,000 --> 00:11:37,319 Speaker 7: the digital generation, the young people, and even a retired 211 00:11:37,480 --> 00:11:40,520 Speaker 7: cowgirl like me knows that we need to use these 212 00:11:40,559 --> 00:11:44,160 Speaker 7: tools to educate if we're going to inspire an interest 213 00:11:44,240 --> 00:11:48,840 Speaker 7: today's young people to become active and knowledgeable civic leaders. 214 00:11:49,440 --> 00:11:52,720 Speaker 3: You just heard Justice Sunderday O'Connor introducing her online teaching 215 00:11:52,720 --> 00:11:56,280 Speaker 3: tool is Civics. We've been talking to New York University 216 00:11:56,360 --> 00:11:59,480 Speaker 3: law professor Melissa Murray about the life of Justice O'Connor, 217 00:11:59,720 --> 00:12:03,280 Speaker 3: who passed away last week. Melissa, Justice O'Connor's legacy was 218 00:12:03,320 --> 00:12:06,240 Speaker 3: solidified long before she retired in two thousand and six, 219 00:12:06,600 --> 00:12:08,920 Speaker 3: but she continued to be a public servant for many 220 00:12:09,040 --> 00:12:13,280 Speaker 3: years after her retirement, champion causes like judicial independence and 221 00:12:13,320 --> 00:12:16,040 Speaker 3: civics education. Can you tell us a little bit about 222 00:12:16,080 --> 00:12:18,160 Speaker 3: some of the things that she did after she left 223 00:12:18,160 --> 00:12:21,240 Speaker 3: the court, and you know how that sort of compares 224 00:12:21,320 --> 00:12:23,840 Speaker 3: with what we see from you know, justicis who have 225 00:12:23,880 --> 00:12:24,679 Speaker 3: recently retired. 226 00:12:24,840 --> 00:12:28,640 Speaker 5: Well, I mean isavics Is perhaps the cornerstone of her 227 00:12:28,880 --> 00:12:31,680 Speaker 5: post retirement work. And she did retire in two thousand 228 00:12:31,679 --> 00:12:35,800 Speaker 5: and five, and she wanted to be engaged. I think 229 00:12:35,840 --> 00:12:38,200 Speaker 5: at this point in time, I'm only speculating here, but 230 00:12:38,760 --> 00:12:41,520 Speaker 5: you know, at this point, I think she probably realized 231 00:12:41,679 --> 00:12:45,200 Speaker 5: that her vote in Bush versus Gore in two thousand, 232 00:12:45,240 --> 00:12:48,600 Speaker 5: which propelled George W. Bush to the presidency and set 233 00:12:48,640 --> 00:12:52,360 Speaker 5: the stage for John Roberts and then Samuel Alito to 234 00:12:52,360 --> 00:12:54,800 Speaker 5: be appointed to the cord and in d Justice Alito 235 00:12:54,840 --> 00:12:58,280 Speaker 5: took her seat, I think she understood that that had 236 00:12:58,320 --> 00:13:01,319 Speaker 5: really changed the tenor of the court, had really sort 237 00:13:01,320 --> 00:13:03,840 Speaker 5: of pushed the court in a right word direction, And 238 00:13:03,840 --> 00:13:06,640 Speaker 5: it was really clear, even before the addition of the 239 00:13:06,679 --> 00:13:09,840 Speaker 5: Trump justices that the addition of Justice Alido in her 240 00:13:09,960 --> 00:13:14,320 Speaker 5: seat had really moved the court to the writing. She 241 00:13:14,400 --> 00:13:18,400 Speaker 5: had been among the majority in a decision to pull 242 00:13:18,520 --> 00:13:22,360 Speaker 5: the McCain fein gold campaign finance law in McConnell, and 243 00:13:22,679 --> 00:13:25,560 Speaker 5: that was principally undermined by a big part of the 244 00:13:25,600 --> 00:13:29,120 Speaker 5: decision and Citizens United in twenty ten, and so, you know, 245 00:13:29,200 --> 00:13:32,280 Speaker 5: I think perhaps we might understand her work in civic 246 00:13:32,440 --> 00:13:36,440 Speaker 5: education and focusing on young people. This was an opportunity 247 00:13:36,480 --> 00:13:38,880 Speaker 5: for her to sort of re engage this question about 248 00:13:38,880 --> 00:13:41,680 Speaker 5: what democracy is, what is required of a democracy, and 249 00:13:41,760 --> 00:13:44,360 Speaker 5: what is the role of a judge in a democracy. 250 00:13:44,520 --> 00:13:48,439 Speaker 2: Now you mentioned her retirement before. At the time, the 251 00:13:48,480 --> 00:13:51,840 Speaker 2: circumstances were a little tumultuous, particularly as it came to 252 00:13:51,880 --> 00:13:54,480 Speaker 2: the timing of her retirement. So can you tell listeners 253 00:13:54,520 --> 00:13:55,160 Speaker 2: a bit about that. 254 00:13:55,520 --> 00:13:58,560 Speaker 5: So back in two thousand and five, this as O'Connor 255 00:13:58,640 --> 00:14:02,480 Speaker 5: was dealing with this family situation. Her husband was suffering 256 00:14:02,559 --> 00:14:07,000 Speaker 5: from Alzheimer's and his needs had sort of ballooned, and 257 00:14:07,040 --> 00:14:10,000 Speaker 5: she really did need to be with him more frequently. 258 00:14:10,080 --> 00:14:12,640 Speaker 5: But she was also at the height of her authority 259 00:14:12,760 --> 00:14:15,680 Speaker 5: on the court, and she really was the fulcrumbs around 260 00:14:15,720 --> 00:14:18,000 Speaker 5: which the entire court pivoted. And you know, if you 261 00:14:18,040 --> 00:14:20,880 Speaker 5: wanted to form a majority, you needed Sandra J. O'Connor 262 00:14:21,000 --> 00:14:24,560 Speaker 5: in most instances. But she didn't make the decision to 263 00:14:24,600 --> 00:14:29,080 Speaker 5: step back because of these family responsibilities when she stepped down. 264 00:14:29,720 --> 00:14:33,080 Speaker 5: John Roberts was nominated by George W. Bush to fill 265 00:14:33,160 --> 00:14:37,520 Speaker 5: her seat, and then very quickly thereafter, William Renqlist, she 266 00:14:37,640 --> 00:14:40,640 Speaker 5: was the Chief Justice at the time, unexpectedly passed away 267 00:14:40,840 --> 00:14:45,120 Speaker 5: from complications from syroid cancer. And O'Connor and Renklist were 268 00:14:45,360 --> 00:14:47,880 Speaker 5: very good friends. They had known each other at Stanford 269 00:14:47,920 --> 00:14:52,160 Speaker 5: Law School. Apparently, according to her biographer Evan Smith Evan Tannas, 270 00:14:52,160 --> 00:14:55,000 Speaker 5: they had dated at one point time and that when 271 00:14:55,120 --> 00:14:59,040 Speaker 5: christ had proposed marriage and was rejected. So they were 272 00:14:59,120 --> 00:15:01,120 Speaker 5: very good friends. But it seemed to come as a 273 00:15:01,160 --> 00:15:03,880 Speaker 5: surprise to a lot of people, and no more so 274 00:15:03,960 --> 00:15:08,920 Speaker 5: than her. And so when that vacancy presented itself, the President, 275 00:15:08,960 --> 00:15:13,080 Speaker 5: George W. Bush, nominated John Roberts to fill the seat 276 00:15:13,800 --> 00:15:18,800 Speaker 5: that Renquist had left unoccupied, and that left O'Connor seat available. 277 00:15:19,560 --> 00:15:22,080 Speaker 5: There was a lot of tumult around this. The first 278 00:15:22,080 --> 00:15:25,240 Speaker 5: person nominated to fill that seat with Harriet Meyer, who 279 00:15:25,720 --> 00:15:28,120 Speaker 5: was part of the White House Council team and someone 280 00:15:28,280 --> 00:15:32,920 Speaker 5: that President Bush knew very well from his time in Texas. 281 00:15:33,760 --> 00:15:37,480 Speaker 5: She was viewed with considerable skepticism from those in the 282 00:15:37,480 --> 00:15:41,440 Speaker 5: then nascent conservative legal movement. She didn't really have a 283 00:15:41,440 --> 00:15:44,480 Speaker 5: lot of bonus fides with conservatives, she wasn't a member 284 00:15:44,480 --> 00:15:49,800 Speaker 5: of the Federal Society. Ultimately, she withdrew from the process, 285 00:15:49,840 --> 00:15:53,920 Speaker 5: and Samuel Alido, who was perhaps a more conventional pick, 286 00:15:54,400 --> 00:15:58,440 Speaker 5: was identified and was nominated to fill her sieede. And 287 00:15:58,520 --> 00:16:01,160 Speaker 5: you know, when asked about it, she made all of 288 00:16:01,200 --> 00:16:04,240 Speaker 5: the very familiar gestures praising the nominee, but she did 289 00:16:04,320 --> 00:16:06,280 Speaker 5: note that she wished it had been a woman. 290 00:16:07,400 --> 00:16:09,200 Speaker 3: Interesting. Yeah, I do want to make sure that we 291 00:16:09,240 --> 00:16:12,680 Speaker 3: talk a lot about that swap for Justice O'Connor for 292 00:16:12,880 --> 00:16:14,560 Speaker 3: Justice Lito and sort of all the things that have 293 00:16:14,600 --> 00:16:17,800 Speaker 3: happened since then and what that means for her legacy. 294 00:16:17,840 --> 00:16:21,240 Speaker 3: But first, just want to give listeners a little idea 295 00:16:21,440 --> 00:16:24,200 Speaker 3: about you know, I think most people know a lot 296 00:16:24,200 --> 00:16:27,320 Speaker 3: about her trow blazing career, but what about her upbringing? 297 00:16:27,720 --> 00:16:30,120 Speaker 3: What was that like, because that seems very different from 298 00:16:30,320 --> 00:16:31,800 Speaker 3: a lot of the justices that we have on the 299 00:16:31,800 --> 00:16:32,680 Speaker 3: bench today as well. 300 00:16:32,880 --> 00:16:35,920 Speaker 5: Well, by her own admission, she was a cowgirl from 301 00:16:36,080 --> 00:16:39,800 Speaker 5: the American stuff. Last. She grew up principally on her parents' 302 00:16:39,920 --> 00:16:44,800 Speaker 5: ranch out in Arizona, and not a super populated place, 303 00:16:44,840 --> 00:16:48,560 Speaker 5: but you know, ranches are notoriously isolated. This was no exception. 304 00:16:48,720 --> 00:16:51,120 Speaker 5: She grew up with her her brother, and her mother 305 00:16:51,200 --> 00:16:54,680 Speaker 5: and father, and you know the ranch cans who were there. 306 00:16:55,520 --> 00:16:59,000 Speaker 5: There wasn't really an opportunity for formal schooling on the ranch. 307 00:16:59,120 --> 00:17:01,240 Speaker 5: So when it was time for her to go to school, 308 00:17:01,400 --> 00:17:04,480 Speaker 5: she went to El Paso, which is the nearest large city, 309 00:17:04,480 --> 00:17:07,000 Speaker 5: which at the time I think wasn't what we think 310 00:17:07,040 --> 00:17:10,439 Speaker 5: of as El Paso today, but that was the nearest 311 00:17:10,600 --> 00:17:13,480 Speaker 5: larger city where she was able to attend school, and 312 00:17:13,480 --> 00:17:17,080 Speaker 5: she attended school while living with an aunt in El Paso, 313 00:17:17,240 --> 00:17:21,240 Speaker 5: and then from there she went on to Stanford University 314 00:17:21,320 --> 00:17:25,439 Speaker 5: for college. She graduated early and matriculated at Stanford Law School, 315 00:17:25,440 --> 00:17:28,639 Speaker 5: where she had a very distinguished career, more distinguished than 316 00:17:28,680 --> 00:17:31,920 Speaker 5: her husband apparently, and was a member of the Law Review. 317 00:17:32,000 --> 00:17:36,760 Speaker 5: And then found as she graduated that despite her impeccable credentials, 318 00:17:36,760 --> 00:17:41,040 Speaker 5: despite her amazing training as a young woman, she could 319 00:17:41,040 --> 00:17:43,240 Speaker 5: not actually get a job as a lawyer. 320 00:17:43,440 --> 00:17:46,439 Speaker 2: Kimberly alluded to this before about you know, how a 321 00:17:46,440 --> 00:17:48,840 Speaker 2: lot has changed in some of the legal areas that 322 00:17:48,880 --> 00:17:52,280 Speaker 2: we've talked about. Can you tell us, like how consequential 323 00:17:52,320 --> 00:17:55,200 Speaker 2: it was that Justsice O'Connor was replaced by Samuel Alito 324 00:17:55,280 --> 00:17:55,800 Speaker 2: on the bench. 325 00:17:56,320 --> 00:17:58,919 Speaker 5: I think lots of ink will be spilled in the 326 00:17:58,960 --> 00:18:00,760 Speaker 5: next few months of how you know, sort of what 327 00:18:00,800 --> 00:18:05,480 Speaker 5: it meant to shift from a Justice O'Connor to a 328 00:18:05,640 --> 00:18:09,840 Speaker 5: Justice Alito. First, Justice O'Connor very much was sort of 329 00:18:09,840 --> 00:18:12,159 Speaker 5: the media and justice the center of the court, the 330 00:18:12,240 --> 00:18:15,800 Speaker 5: swing justice. I don't think anyone would describe Justice Alito 331 00:18:15,880 --> 00:18:18,440 Speaker 5: in that way. I mean, he is very firmly on 332 00:18:18,640 --> 00:18:23,240 Speaker 5: the court's right wing, right flank. He's never really been 333 00:18:23,520 --> 00:18:25,760 Speaker 5: in the middle during his time on the Court, and 334 00:18:25,800 --> 00:18:29,040 Speaker 5: in fact, I think he's probably moved more salsily to 335 00:18:29,200 --> 00:18:32,639 Speaker 5: the right as his tenure on the Court has progressed. 336 00:18:32,800 --> 00:18:36,480 Speaker 5: In twenty twenty two, we saw Justice Alito write the 337 00:18:36,520 --> 00:18:41,840 Speaker 5: majority opinion in Jobs versus Jackson Women's Health Organization, overruling 338 00:18:41,840 --> 00:18:45,359 Speaker 5: on a five to four vote Roe versus Wade, and 339 00:18:45,520 --> 00:18:48,879 Speaker 5: Planned Parenthood versus Casey, and of course Justice O'Connor was 340 00:18:48,960 --> 00:18:53,800 Speaker 5: absolutely pivotal in upholding Row and brokering that compromise in Casey. 341 00:18:54,359 --> 00:18:57,800 Speaker 5: We also see a very different set of votes from 342 00:18:57,800 --> 00:19:00,879 Speaker 5: that seat in the arena of a firmative action mean 343 00:19:01,200 --> 00:19:06,159 Speaker 5: Justice O'Connor was very skeptical of race conscious remedies. She 344 00:19:06,800 --> 00:19:09,400 Speaker 5: was in the majority in Croson in nineteen eighty nine 345 00:19:09,480 --> 00:19:12,440 Speaker 5: case that determined that strict scrutiny was the appropriate standard 346 00:19:12,480 --> 00:19:16,240 Speaker 5: of review for any kind of racial classification, even ones 347 00:19:16,320 --> 00:19:20,440 Speaker 5: that supportedly benefited minorities, like affirmative action. In the most 348 00:19:20,440 --> 00:19:23,199 Speaker 5: recent Supreme Court term, we saw Justice Alito with that 349 00:19:23,280 --> 00:19:26,640 Speaker 5: six to three conservative super majority to dismantle affirmative action 350 00:19:26,720 --> 00:19:30,120 Speaker 5: in students with fair admissions versus Harvard. But I think 351 00:19:30,160 --> 00:19:33,560 Speaker 5: another place where you see the real shift from a 352 00:19:33,680 --> 00:19:36,800 Speaker 5: Justice O'Connor to a Justice Alito is just generally in 353 00:19:37,040 --> 00:19:40,480 Speaker 5: the collegialities of the group. Much has been made in 354 00:19:40,520 --> 00:19:43,320 Speaker 5: the last couple of years about us sort of eroding 355 00:19:43,760 --> 00:19:45,760 Speaker 5: collegiality on the Supreme Court. 356 00:19:45,960 --> 00:19:49,640 Speaker 2: She just had a really, really remarkable career and definitely 357 00:19:49,840 --> 00:19:53,240 Speaker 2: very collegial. I'd heard that from from several sources, But 358 00:19:53,920 --> 00:19:57,280 Speaker 2: we really appreciate you joining us. That was a New 359 00:19:57,359 --> 00:20:00,840 Speaker 2: York University law professor Melissa Murray chatting with us about 360 00:20:00,880 --> 00:20:04,679 Speaker 2: Sandradale O'Connor's remarkable career. She's also the co host of 361 00:20:04,720 --> 00:20:08,119 Speaker 2: a podcast on the Supreme Court called strict scrutiny. Melissa, 362 00:20:08,119 --> 00:20:09,280 Speaker 2: thanks so much for joining. 363 00:20:09,040 --> 00:20:10,080 Speaker 5: Us, Thanks for having me. 364 00:20:10,240 --> 00:20:12,560 Speaker 2: Coming up next on the Bloomberg Law Show, we'll talk 365 00:20:12,560 --> 00:20:16,000 Speaker 2: about the six billion dollar bankruptcy settlement involving Purdue Pharma 366 00:20:16,080 --> 00:20:18,720 Speaker 2: that's being fought over at the United States Supreme Court. 367 00:20:18,800 --> 00:20:22,520 Speaker 2: I'm Lydia Wheeler and I'm Kimberly Robinson. This is Bloomberg. 368 00:20:30,560 --> 00:20:34,200 Speaker 1: You're listening to the Bloomberg Law Podcast. Catch us weekdays 369 00:20:34,240 --> 00:20:38,080 Speaker 1: at ten pm Easter on Bloomberg dot Com, the iHeartRadio app, 370 00:20:38,119 --> 00:20:41,040 Speaker 1: and the Bloomberg Business App, or listen on demand wherever 371 00:20:41,080 --> 00:20:42,159 Speaker 1: you get your podcast. 372 00:20:44,600 --> 00:20:48,199 Speaker 3: I'm Lydia Wheeler and I'm Kimberly Robinson in for June Grosso. 373 00:20:48,520 --> 00:20:50,600 Speaker 3: Let's now get to the Supreme Court fight over a 374 00:20:50,640 --> 00:20:54,480 Speaker 3: six billion dollar bankruptcy settlement involving Purdue Pharma, the maker 375 00:20:54,520 --> 00:20:57,040 Speaker 3: of the highly addictive opioid oxycotton. 376 00:20:57,640 --> 00:21:01,120 Speaker 8: In the views of the opioid victims and their family is. 377 00:21:02,640 --> 00:21:05,280 Speaker 6: Doesn't matter. I'm not saying it doesn't matter. Right you are. 378 00:21:05,320 --> 00:21:07,639 Speaker 8: I think your position is saying it doesn't matter. 379 00:21:08,280 --> 00:21:11,520 Speaker 3: That was Justice Brett Kavanaugh expressing skepticism with the federal 380 00:21:11,560 --> 00:21:15,080 Speaker 3: government's argument that the settlement should be scuttled. Bloomberg News 381 00:21:15,119 --> 00:21:19,320 Speaker 3: reporter Jonathan Randalls joins us to discuss. So, Jonathan, can 382 00:21:19,320 --> 00:21:21,880 Speaker 3: you start by telling us what exactly the settlement does 383 00:21:21,960 --> 00:21:24,119 Speaker 3: and why the Biden administration is fighting it? 384 00:21:24,359 --> 00:21:30,919 Speaker 6: Sure? So, the settlement would resolve tons of litigation against 385 00:21:30,920 --> 00:21:33,840 Speaker 6: Purdue Pharma and members of the Sackler family that own 386 00:21:33,880 --> 00:21:41,400 Speaker 6: Purdue Pharma related to produce aggressive marketing of oxyconton. And 387 00:21:42,040 --> 00:21:46,200 Speaker 6: the reason the settlement is controversial is because it forces 388 00:21:46,960 --> 00:21:52,119 Speaker 6: opioid victims who would be otherwise against the plan into 389 00:21:52,160 --> 00:21:56,159 Speaker 6: the deal and forces them to drop their claims and 390 00:21:56,200 --> 00:21:59,320 Speaker 6: their ability to present their case against the Sacklers to 391 00:21:59,400 --> 00:22:01,840 Speaker 6: a jury, regardless of they want the deal or not. 392 00:22:02,160 --> 00:22:06,600 Speaker 6: So that's why it's being challenged by the Biden administration. 393 00:22:06,960 --> 00:22:09,840 Speaker 2: Is there anybody that supports the settlement and if so. 394 00:22:10,000 --> 00:22:14,960 Speaker 6: Why, Yeah, it's widely supported by different creditor groups, so 395 00:22:15,040 --> 00:22:20,680 Speaker 6: like state attorneys general like uniformally support the deal. Different 396 00:22:20,800 --> 00:22:24,440 Speaker 6: counties and cities, municipalities that are all trying to get 397 00:22:24,480 --> 00:22:30,200 Speaker 6: money from Purdue and the Sacklers to pay for opioid 398 00:22:30,720 --> 00:22:36,200 Speaker 6: abatement programs support the deal, and groups and personal injury 399 00:22:36,240 --> 00:22:41,240 Speaker 6: lawyers that represent tens of thousands of opioid victims or claimants. 400 00:22:41,320 --> 00:22:46,520 Speaker 6: People who either directly have been impacted by opioid addiction 401 00:22:46,960 --> 00:22:51,520 Speaker 6: or family members who they have lost people to overdose 402 00:22:52,160 --> 00:22:56,320 Speaker 6: also support the plan. The reason why the people who 403 00:22:56,440 --> 00:22:59,119 Speaker 6: are proponents of the deal want the Supreme Court to 404 00:22:59,200 --> 00:23:03,280 Speaker 6: uphold it is because it provides up to six billion 405 00:23:03,320 --> 00:23:08,320 Speaker 6: dollars in funding and you know, thousands of dollars for 406 00:23:08,400 --> 00:23:14,080 Speaker 6: individual claimants that supporters say they wouldn't otherwise have available 407 00:23:14,119 --> 00:23:20,320 Speaker 6: to them. So if the Justice Department's bankruptcy unit it's 408 00:23:20,359 --> 00:23:24,240 Speaker 6: called the US Trustee Program, if they succeed in scuttling 409 00:23:24,320 --> 00:23:28,320 Speaker 6: the deal, supporters of the plan say, you know, billions 410 00:23:28,320 --> 00:23:31,840 Speaker 6: of dollars in aid that they would otherwise receive would 411 00:23:31,920 --> 00:23:36,520 Speaker 6: just evaporate and they'd lose this money that is desperately 412 00:23:36,560 --> 00:23:39,280 Speaker 6: needed to address the addiction crisis. 413 00:23:40,600 --> 00:23:43,880 Speaker 3: So, I mean, if this is it really for people 414 00:23:43,920 --> 00:23:48,040 Speaker 3: who are seeking, you know, some sort of relief, really 415 00:23:48,080 --> 00:23:51,679 Speaker 3: the issue for them is this one particular provision of 416 00:23:51,720 --> 00:23:54,520 Speaker 3: the settlement. Wondering if you can tell us what that 417 00:23:54,600 --> 00:23:55,720 Speaker 3: provision is all about. 418 00:23:56,240 --> 00:24:02,160 Speaker 6: Yeah, So the jargony term is it's called a non 419 00:24:02,760 --> 00:24:06,600 Speaker 6: consensual third party release produe Pharma of file bankruptcy in 420 00:24:06,680 --> 00:24:11,320 Speaker 6: twenty nineteen, and as a part of the bankruptcy, they 421 00:24:11,320 --> 00:24:16,119 Speaker 6: reached this settlement with the Sackler family. The Sacklers are 422 00:24:16,160 --> 00:24:20,159 Speaker 6: not in bankruptcy, but the settlement essentially extends the benefits 423 00:24:20,240 --> 00:24:24,359 Speaker 6: of produced bankruptcy to members of the Sackler family. And 424 00:24:25,520 --> 00:24:29,200 Speaker 6: the non consensual third party release is the mechanism that 425 00:24:29,480 --> 00:24:37,200 Speaker 6: binds individuals who oppose the deal to it. It's something 426 00:24:37,240 --> 00:24:41,160 Speaker 6: that was first used in the late eighties and authorized 427 00:24:41,160 --> 00:24:45,120 Speaker 6: by Congress in the early nineties to deal with aspetis litigation, 428 00:24:45,560 --> 00:24:49,480 Speaker 6: and it's been expanded over the last three decades to 429 00:24:49,560 --> 00:24:56,199 Speaker 6: address all types of product liability lawsuits and waves of 430 00:24:56,720 --> 00:25:03,160 Speaker 6: litigation over sexual abuse and used to resolve sex abuse 431 00:25:03,240 --> 00:25:11,800 Speaker 6: litigation brought against different different Catholic archdioceses, USA Gymnastics, Harvey 432 00:25:11,840 --> 00:25:18,000 Speaker 6: Weinstein's former film studio, directors and officers of that film studio. 433 00:25:18,760 --> 00:25:22,600 Speaker 6: What are the beneficiaries of this type of arrangement as well? 434 00:25:22,840 --> 00:25:26,640 Speaker 6: And the thought is lawsuits can be complicated when there's 435 00:25:26,720 --> 00:25:29,800 Speaker 6: you know, tons of litigation brought by hundreds or in 436 00:25:29,800 --> 00:25:34,639 Speaker 6: this case, hundreds of thousands of individual claimants. These types 437 00:25:34,640 --> 00:25:37,879 Speaker 6: of deals. While you know it's not great to force 438 00:25:39,040 --> 00:25:44,159 Speaker 6: holdouts into a deal, it's the argument goes necessary to 439 00:25:44,280 --> 00:25:49,639 Speaker 6: distribute bankrupt companies limited funds as fairly as possible. 440 00:25:50,040 --> 00:25:54,120 Speaker 2: So does this actually protect the Sackler family from future litigation? 441 00:25:54,240 --> 00:26:00,520 Speaker 6: Then yes, any any claim related to produce, mar getting 442 00:26:00,960 --> 00:26:07,160 Speaker 6: or sale of opioids would be resolved or extinguished. However 443 00:26:07,200 --> 00:26:10,800 Speaker 6: you want to describe it. Any future lawsuit that would 444 00:26:10,800 --> 00:26:15,600 Speaker 6: be brought would You can get into the specific like 445 00:26:16,320 --> 00:26:18,879 Speaker 6: legal mechanics of how this works, but it would essentially 446 00:26:18,880 --> 00:26:22,120 Speaker 6: be blocking any future lawsuits against the vibar was related 447 00:26:22,160 --> 00:26:24,040 Speaker 6: to the opioid business? 448 00:26:24,840 --> 00:26:27,600 Speaker 3: What about lawsuits by the federal government? Would those who 449 00:26:27,640 --> 00:26:30,320 Speaker 3: blocked If this deal gets the green light from the 450 00:26:30,359 --> 00:26:31,240 Speaker 3: Supreme Court. 451 00:26:31,200 --> 00:26:35,679 Speaker 6: It would resolve civil lawsuits. So I think that the 452 00:26:35,720 --> 00:26:39,880 Speaker 6: Department of Justice, god, it is probably twenty twenty Department 453 00:26:40,000 --> 00:26:44,720 Speaker 6: Justice settled their civil claims against the members of the 454 00:26:44,760 --> 00:26:48,719 Speaker 6: Sackler family for I don't have the number right off 455 00:26:48,720 --> 00:26:50,159 Speaker 6: the top, but I think it's like two hundred and 456 00:26:50,160 --> 00:26:53,120 Speaker 6: twenty five million dollars. The Sackler family agreed to play 457 00:26:53,280 --> 00:26:58,360 Speaker 6: to resolve the federal government's civil liability. So this would 458 00:26:58,440 --> 00:27:02,639 Speaker 6: resolve you know, any kind of lawsuits seeking money against 459 00:27:02,640 --> 00:27:08,400 Speaker 6: the family brought by the federal government or individual state authorities, 460 00:27:09,440 --> 00:27:13,720 Speaker 6: local counties, or personal injury victims. It does not prevent 461 00:27:14,320 --> 00:27:20,119 Speaker 6: any federal authority or state authority from bringing any potential 462 00:27:20,200 --> 00:27:28,400 Speaker 6: criminal charges against anybody related to Purdue. But you know, 463 00:27:28,960 --> 00:27:33,000 Speaker 6: the Sacklers have always maintained and continued to maintain that 464 00:27:33,720 --> 00:27:38,000 Speaker 6: these are merely allegations. They've you know, deny liability and 465 00:27:38,040 --> 00:27:41,040 Speaker 6: all wrongdoing, and of course they've never been criminally charged. 466 00:27:41,280 --> 00:27:44,159 Speaker 2: Now, the justices today seemed really divided. You know, there 467 00:27:44,200 --> 00:27:47,720 Speaker 2: were several justices that were skeptical of the Sackler's arguments 468 00:27:48,400 --> 00:27:51,080 Speaker 2: and others that were skeptical of the government's attempt to 469 00:27:51,119 --> 00:27:54,480 Speaker 2: scuttle this deal. So can you talk about kind of 470 00:27:54,520 --> 00:27:58,560 Speaker 2: where the justices were shaking out, Like were they following 471 00:27:58,640 --> 00:28:02,359 Speaker 2: kind of on their ideological lines here, or you know, 472 00:28:02,640 --> 00:28:06,119 Speaker 2: was there was the divide kind of across across the. 473 00:28:06,119 --> 00:28:11,800 Speaker 6: Aisle the latter. It's kind of interesting, you know, bankruptcy 474 00:28:12,400 --> 00:28:16,520 Speaker 6: doesn't always get as much attention in the Supreme Court 475 00:28:16,680 --> 00:28:21,359 Speaker 6: as other more and rightfully so, more high profile or 476 00:28:21,680 --> 00:28:25,879 Speaker 6: or you know, controversial or contested kind of legal issues 477 00:28:25,880 --> 00:28:28,560 Speaker 6: of the day. So it's always kind of interesting when 478 00:28:28,640 --> 00:28:32,760 Speaker 6: something from you know, bankruptcy court finds its way all 479 00:28:32,760 --> 00:28:35,200 Speaker 6: the way up to the Supreme Court, and as is 480 00:28:35,240 --> 00:28:40,920 Speaker 6: often the case, as it was today too. Yeah, this 481 00:28:41,000 --> 00:28:47,080 Speaker 6: issue kind of cut through the normal conservative liberal ideological lines. 482 00:28:47,680 --> 00:28:52,840 Speaker 6: So you had Neil Gorsich was pointing to the fact that, 483 00:28:53,120 --> 00:28:56,960 Speaker 6: you know, by stripping holdouts potentially of the right to 484 00:28:57,120 --> 00:29:02,680 Speaker 6: a jury trial, that raised constitutional problems potentially to the deal, 485 00:29:04,040 --> 00:29:08,840 Speaker 6: and you had liberal justices, you know, raising different arguments 486 00:29:08,880 --> 00:29:14,800 Speaker 6: against it, like the fact that Purdue transferred like ten 487 00:29:14,800 --> 00:29:19,760 Speaker 6: billion dollars in funds from the company between two thousand 488 00:29:19,760 --> 00:29:23,320 Speaker 6: and eight and before they filed in twenty nineteen. The 489 00:29:23,400 --> 00:29:28,040 Speaker 6: point being that the reason why Purdue says it needs 490 00:29:28,040 --> 00:29:32,239 Speaker 6: this settlement is arguably because the Sacklers took money out 491 00:29:32,280 --> 00:29:36,200 Speaker 6: of the business before bankruptcy. I think that was Justice 492 00:29:36,280 --> 00:29:38,920 Speaker 6: Jackson who raised that point. So a different point, but 493 00:29:39,840 --> 00:29:44,640 Speaker 6: similar skepticism, and it's cutting you know, both ways, liberal 494 00:29:44,640 --> 00:29:45,400 Speaker 6: and conservative. 495 00:29:46,520 --> 00:29:49,720 Speaker 8: If there's one thing you take away from my argument today, 496 00:29:49,920 --> 00:29:53,720 Speaker 8: it is this, And let me be crystal clear, without 497 00:29:53,760 --> 00:29:59,120 Speaker 8: the release, the plan will unravel Chapter seven, liquidation will follow, 498 00:29:59,400 --> 00:30:02,280 Speaker 8: and there will there be no viable path to any 499 00:30:02,840 --> 00:30:04,120 Speaker 8: victim recovery. 500 00:30:04,960 --> 00:30:08,080 Speaker 3: That was Attorney Critique Shaw urging the justices to greenlight 501 00:30:08,160 --> 00:30:12,120 Speaker 3: the six billion dollars settlement involving Purdue Pharma. Jonathan, I 502 00:30:12,240 --> 00:30:13,680 Speaker 3: wonder if you can talk to us a little bit 503 00:30:13,680 --> 00:30:16,800 Speaker 3: about the future implications of the case if the court 504 00:30:16,920 --> 00:30:20,080 Speaker 3: were to side against Purdue Pharma. Is Shaw right that 505 00:30:20,160 --> 00:30:22,560 Speaker 3: there likely won't be any relief for the victims and 506 00:30:22,600 --> 00:30:23,280 Speaker 3: their families. 507 00:30:23,440 --> 00:30:27,640 Speaker 6: That's really hard to say, obviously, what Shaw was arguing, 508 00:30:27,720 --> 00:30:31,280 Speaker 6: and a lot of proponents of the deal who represent 509 00:30:31,320 --> 00:30:34,160 Speaker 6: the interest of the opioid victims that have been adamant 510 00:30:34,200 --> 00:30:37,680 Speaker 6: for years now as this has been tied up in appeals, 511 00:30:37,720 --> 00:30:40,600 Speaker 6: that this is the best and only deal available to 512 00:30:41,120 --> 00:30:44,240 Speaker 6: opioid victims, and without it, you know, there's a whole 513 00:30:44,240 --> 00:30:48,280 Speaker 6: parade of horribles that will happen, including a loss of 514 00:30:48,360 --> 00:30:51,400 Speaker 6: up to six billion dollars that could you know, help 515 00:30:51,560 --> 00:30:55,400 Speaker 6: address or rectify at least some of the harm caused 516 00:30:55,400 --> 00:31:00,120 Speaker 6: by Purdue. You know, they've accused of obviously fueling the 517 00:31:00,120 --> 00:31:03,200 Speaker 6: opiate epandemic. What will happen? I don't really know that 518 00:31:03,520 --> 00:31:08,800 Speaker 6: Purdue and proponents, including victims who have no love loss 519 00:31:08,840 --> 00:31:12,480 Speaker 6: with the Sacklers say there will be nothing left for 520 00:31:12,640 --> 00:31:16,040 Speaker 6: victims if this is unwound by the Supreme Court. 521 00:31:16,240 --> 00:31:18,880 Speaker 2: What happens if the court sides with Purdue Pharma. You know, 522 00:31:18,920 --> 00:31:20,760 Speaker 2: what is the government saying will happen here? 523 00:31:21,120 --> 00:31:23,920 Speaker 6: Yeah, that's a good question. They're much more like a 524 00:31:23,960 --> 00:31:27,840 Speaker 6: straightforward argument being as good as this settlement might be 525 00:31:27,880 --> 00:31:31,440 Speaker 6: for everyone involved, it's not permitted under the bankruptcy Code. 526 00:31:31,800 --> 00:31:35,720 Speaker 6: It's kind of that simple. They also say that if 527 00:31:36,000 --> 00:31:40,360 Speaker 6: the deal is unwound, well and the Sacklers can, they're 528 00:31:40,400 --> 00:31:42,360 Speaker 6: just going to have to make a different deal. You know, 529 00:31:42,400 --> 00:31:45,480 Speaker 6: they're not preventing anybody that wants to be a part 530 00:31:45,520 --> 00:31:49,160 Speaker 6: of this deal from consenting to it. The problem is 531 00:31:49,680 --> 00:31:52,680 Speaker 6: forcing people that don't consent to it to take it. 532 00:31:53,200 --> 00:31:55,960 Speaker 6: So what the Justice Department is saying is that, like, look, 533 00:31:56,440 --> 00:31:58,680 Speaker 6: if this goes back to the bankruptcy court, they'll just 534 00:31:58,720 --> 00:32:01,280 Speaker 6: have to work out another deal. Potentially that would mean 535 00:32:01,440 --> 00:32:03,320 Speaker 6: maybe the Sacklers would have to put up even more 536 00:32:03,360 --> 00:32:06,880 Speaker 6: money than they already have to buy peace. And it 537 00:32:06,920 --> 00:32:08,920 Speaker 6: doesn't prevent anybody that wants to be a part of 538 00:32:08,920 --> 00:32:10,640 Speaker 6: this deal from being a part of the deal. It 539 00:32:10,760 --> 00:32:12,840 Speaker 6: just prevents people who don't want to be a part 540 00:32:12,840 --> 00:32:14,400 Speaker 6: of it from being forced to take it. 541 00:32:15,280 --> 00:32:18,120 Speaker 3: So reading the team leaves on a Supreme Court argument 542 00:32:18,360 --> 00:32:22,040 Speaker 3: is always a very dangerous game. That seems particularly so 543 00:32:22,200 --> 00:32:24,480 Speaker 3: in this case. Did you get a sense of where 544 00:32:24,600 --> 00:32:26,120 Speaker 3: this is actually going to end up at the end 545 00:32:26,120 --> 00:32:26,520 Speaker 3: of the day. 546 00:32:27,320 --> 00:32:30,280 Speaker 6: No, I wish I did, But you know, I mean, 547 00:32:30,360 --> 00:32:34,640 Speaker 6: I think the most interesting thing is getting you know, 548 00:32:34,840 --> 00:32:40,000 Speaker 6: justices that wouldn't otherwise agree kind of raising similar arguments 549 00:32:40,240 --> 00:32:44,120 Speaker 6: or kind of being in agreement either against the deal 550 00:32:44,320 --> 00:32:49,360 Speaker 6: or the same you know, raising questions about the challenge 551 00:32:49,360 --> 00:32:51,280 Speaker 6: to the deal. I kind of found interesting. 552 00:32:51,560 --> 00:32:54,400 Speaker 2: What about the broader impact here? Is there any concern 553 00:32:54,440 --> 00:32:58,480 Speaker 2: that this deal could up end bankruptcies in general going forward? 554 00:32:58,840 --> 00:33:02,160 Speaker 6: For sure? I think this was what the Purdue lawyers said, 555 00:33:02,160 --> 00:33:05,840 Speaker 6: that what is at risk here is potentially the Justice 556 00:33:05,840 --> 00:33:08,800 Speaker 6: Department taking like a wrecking ball to the bankruptcy code. 557 00:33:09,280 --> 00:33:13,240 Speaker 6: These types of settlements are pretty common when companies that 558 00:33:13,280 --> 00:33:17,320 Speaker 6: are like overwhelmed by lawsuits wound up in bankruptcy and 559 00:33:17,880 --> 00:33:20,000 Speaker 6: the Supreme Court says you can't make this type of deal. 560 00:33:21,240 --> 00:33:24,040 Speaker 6: You know, maybe it means that companies that would file 561 00:33:24,120 --> 00:33:27,720 Speaker 6: bankruptcy to try and you know, come to some sort 562 00:33:27,760 --> 00:33:30,720 Speaker 6: of like grand settlement of litigation. Maybe they don't file 563 00:33:30,760 --> 00:33:35,040 Speaker 6: bankruptcy in the future. So yeah, if the Supreme Court 564 00:33:35,760 --> 00:33:39,960 Speaker 6: agrees with the Justice Department, it would have pretty broad 565 00:33:40,000 --> 00:33:46,000 Speaker 6: implications for bankruptcy in general and its use as a 566 00:33:46,040 --> 00:33:50,720 Speaker 6: forum to resolve this type of mass litigation in the future. 567 00:33:51,080 --> 00:33:54,640 Speaker 2: Wow, So lots to watch for in that case. That's 568 00:33:54,640 --> 00:33:57,600 Speaker 2: Bloomberg News reporter Jonathan Randalls, thanks so much for joining us, 569 00:33:57,880 --> 00:34:00,160 Speaker 2: Thanks for having me. By the way, the sac Our 570 00:34:00,200 --> 00:34:04,080 Speaker 2: family denies all liability and hasn't been criminally charged. And 571 00:34:04,160 --> 00:34:06,360 Speaker 2: that does it for this edition of the Bloomberg Law Show. 572 00:34:06,440 --> 00:34:07,760 Speaker 2: I'm Lydio Wheeler. 573 00:34:07,480 --> 00:34:10,160 Speaker 3: And I'm Kimberly Robinson. 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