1 00:00:03,520 --> 00:00:07,040 Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 2 00:00:07,120 --> 00:00:09,680 Speaker 1: day we bring you insight and analysis into the most 3 00:00:09,720 --> 00:00:12,200 Speaker 1: important legal news of the day. You can find more 4 00:00:12,240 --> 00:00:16,160 Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud 5 00:00:16,280 --> 00:00:19,799 Speaker 1: and on Bloomberg dot com slash podcasts. This morning, the 6 00:00:19,840 --> 00:00:22,120 Speaker 1: Supreme Court heard one of the biggest cases of the 7 00:00:22,239 --> 00:00:25,160 Speaker 1: term and one of the most politically divisive, the Trump 8 00:00:25,200 --> 00:00:28,600 Speaker 1: Administration's addition of a citizenship question to the census. In 9 00:00:29,720 --> 00:00:32,199 Speaker 1: Bloomberg New Supreme Court reporter of Greg Store was there 10 00:00:32,240 --> 00:00:35,239 Speaker 1: and he joins me, now, so, Greg, this is the 11 00:00:35,400 --> 00:00:38,199 Speaker 1: case that has been talked about more than probably just 12 00:00:38,240 --> 00:00:41,479 Speaker 1: about any other set. The scene, was it crowded? Were 13 00:00:41,520 --> 00:00:44,920 Speaker 1: their protests? I didn't see any protest June, but it 14 00:00:45,000 --> 00:00:47,720 Speaker 1: was certainly proud of very long lines outside the court 15 00:00:47,720 --> 00:00:49,720 Speaker 1: to get in and claim one of the few seats 16 00:00:50,240 --> 00:00:53,080 Speaker 1: for it. The Court, as you know, generally does not 17 00:00:53,240 --> 00:00:56,000 Speaker 1: release the audio of an argument on the same day 18 00:00:56,400 --> 00:00:58,680 Speaker 1: and again said it wouldn't do it this time. So 19 00:00:59,000 --> 00:01:00,840 Speaker 1: the only way you get to or what what was 20 00:01:00,920 --> 00:01:03,080 Speaker 1: happening today is if you had one of those a 21 00:01:03,080 --> 00:01:05,720 Speaker 1: few hundred seats in the courtroom. So what was the 22 00:01:05,800 --> 00:01:09,240 Speaker 1: main legal question as far as the justices were concerned. 23 00:01:09,640 --> 00:01:12,120 Speaker 1: There are a multitude of legal questions in the case, 24 00:01:12,240 --> 00:01:15,160 Speaker 1: but the core of it seemed to be whether under 25 00:01:15,200 --> 00:01:19,280 Speaker 1: the federal law that that governed administrative agencies, the Commerce 26 00:01:19,280 --> 00:01:22,640 Speaker 1: Secretary Wilbur Ross acted in a in a reasonable manner 27 00:01:22,920 --> 00:01:26,199 Speaker 1: by saying, I reject the recommendation of the Census Bureau. 28 00:01:26,240 --> 00:01:28,760 Speaker 1: The Census Bureau said, if we add a question about 29 00:01:28,760 --> 00:01:33,520 Speaker 1: citizenship that will reduce participation, it will lessen the accuracy 30 00:01:33,560 --> 00:01:36,560 Speaker 1: of the responses we do get, and we're actually better 31 00:01:36,640 --> 00:01:39,319 Speaker 1: able to figure out how many people are are in 32 00:01:39,360 --> 00:01:42,360 Speaker 1: the country and whether they are citizens through other means. 33 00:01:42,480 --> 00:01:47,080 Speaker 1: The Commerce Secretary rejected that recommendation and that analysis, and 34 00:01:47,120 --> 00:01:49,800 Speaker 1: the question was whether the core question was really whether 35 00:01:49,840 --> 00:01:53,080 Speaker 1: he had any real basis for doing so. So there 36 00:01:53,080 --> 00:01:57,120 Speaker 1: were three Federal Court judges who heard this case, and 37 00:01:57,280 --> 00:02:01,000 Speaker 1: all three ruled against the administration, and some were very 38 00:02:01,040 --> 00:02:06,200 Speaker 1: critical of Commerce Secretary Ross's actions. Did their opinions count 39 00:02:06,280 --> 00:02:08,799 Speaker 1: for anything in the arguments? Well, it's certainly there with 40 00:02:08,840 --> 00:02:11,520 Speaker 1: the court's liberals. So the case that is before the 41 00:02:11,560 --> 00:02:13,919 Speaker 1: Court is one that came out of New York. UH 42 00:02:14,040 --> 00:02:17,560 Speaker 1: several hundred page opinion by Judge Jesse Furman there, who 43 00:02:17,600 --> 00:02:22,760 Speaker 1: said that Ross committed a quote veritable smortgage board violations 44 00:02:22,800 --> 00:02:26,160 Speaker 1: of the Administrative Procedure Act. You know, there were certainly 45 00:02:26,160 --> 00:02:29,519 Speaker 1: a lot of questions for the Trump administration's lawyer, Solicitor 46 00:02:29,600 --> 00:02:33,200 Speaker 1: General Noel Francisco about the things that we're in Furman's opinion, 47 00:02:33,440 --> 00:02:35,720 Speaker 1: but there was really no evidence that had had any 48 00:02:35,760 --> 00:02:38,840 Speaker 1: impact on the likely swing justices in the case. Who 49 00:02:38,840 --> 00:02:42,120 Speaker 1: are Chief Justice Roberts and Justice Kavanaugh? What did you 50 00:02:42,160 --> 00:02:46,880 Speaker 1: see from the justice's questions as to which way they're leaning? So, 51 00:02:47,000 --> 00:02:50,320 Speaker 1: as I alluded to, there was really no indication that 52 00:02:50,400 --> 00:02:54,960 Speaker 1: either Roberts or Kavanaugh were especially bothered by all these 53 00:02:55,040 --> 00:02:58,880 Speaker 1: violations that Judge Furman found, basically to set the scene 54 00:02:58,919 --> 00:03:01,160 Speaker 1: a little more, there's a lot of evidence in the record. 55 00:03:01,240 --> 00:03:04,120 Speaker 1: What Judge Furman found was that Secretary Ross really wanted 56 00:03:04,160 --> 00:03:07,080 Speaker 1: to put as citizenship question on the census and was 57 00:03:07,120 --> 00:03:09,720 Speaker 1: sort of shopping around through the Homeland Security Department of 58 00:03:09,760 --> 00:03:13,880 Speaker 1: Justice Department for some entity that would ask formally ask 59 00:03:14,200 --> 00:03:16,760 Speaker 1: the Commerce Department to put a question on there, and 60 00:03:16,880 --> 00:03:19,239 Speaker 1: eventually got the Justice Department to say, hey, it would 61 00:03:19,240 --> 00:03:22,399 Speaker 1: help us enforce the Voting Rights Act. And there's no 62 00:03:22,480 --> 00:03:26,639 Speaker 1: indication that that either roberts or Kavanaugh were bothered by 63 00:03:26,680 --> 00:03:30,680 Speaker 1: that process or agreed with Judge Furman that those purported 64 00:03:30,720 --> 00:03:34,000 Speaker 1: reasons that Ross gave for putting the question on there 65 00:03:34,240 --> 00:03:38,080 Speaker 1: were a pretext. They seem perfectly comfortable letting the administration 66 00:03:38,120 --> 00:03:41,200 Speaker 1: ask the question. So then does that indicate a five 67 00:03:41,320 --> 00:03:45,520 Speaker 1: for split in the administration's favor? You know, I'm often 68 00:03:45,520 --> 00:03:48,240 Speaker 1: wrong when I predicted arguments will come out a lot 69 00:03:48,320 --> 00:03:51,040 Speaker 1: sometimes right, this one sure felt like a five to four. 70 00:03:51,280 --> 00:03:53,440 Speaker 1: It's hard to say. We already have some evidence from 71 00:03:53,480 --> 00:03:57,000 Speaker 1: some preliminary rulings on some earlier questions that there will 72 00:03:57,040 --> 00:04:00,640 Speaker 1: be a split. The more conservative justices have staked out 73 00:04:00,640 --> 00:04:03,120 Speaker 1: some ground and made pretty clear they don't think this 74 00:04:03,160 --> 00:04:05,880 Speaker 1: case has any merit to it based on the questions. 75 00:04:05,760 --> 00:04:08,760 Speaker 1: It's awfully hard to see how they are not joined 76 00:04:08,920 --> 00:04:11,960 Speaker 1: by Robertson and Kavanaugh to make a five four decision. 77 00:04:12,320 --> 00:04:15,880 Speaker 1: So then would that flip the Court's usual divide when 78 00:04:15,880 --> 00:04:18,760 Speaker 1: it comes to administrative agencies and how much weight they 79 00:04:18,800 --> 00:04:21,120 Speaker 1: give them. Yeah, it's sort of would You know, We've 80 00:04:21,120 --> 00:04:23,760 Speaker 1: been talking a lot about, especially with Kavanaugh and Neil 81 00:04:23,760 --> 00:04:27,040 Speaker 1: Gorser's joining the Court about how they are justices who 82 00:04:27,120 --> 00:04:30,040 Speaker 1: tend to be skeptical of giving too much difference to 83 00:04:30,120 --> 00:04:33,560 Speaker 1: administrative agencies like the e PA, for example, and so 84 00:04:33,800 --> 00:04:36,400 Speaker 1: there's an expectation this court will limit the power of 85 00:04:36,440 --> 00:04:42,159 Speaker 1: administrative agencies in those contexts. Here, however, Justice Kavanaugh, for example, 86 00:04:42,200 --> 00:04:44,520 Speaker 1: said that the statute that governs the taking of the 87 00:04:44,600 --> 00:04:49,320 Speaker 1: senses gives huge discretion to the Commerce Secretary. So in 88 00:04:49,360 --> 00:04:52,800 Speaker 1: this context, it didn't seem like those limits on administrative 89 00:04:52,839 --> 00:04:56,000 Speaker 1: agencies that they might apply elsewhere. We're going to carry 90 00:04:56,040 --> 00:04:59,280 Speaker 1: the day here. So this is the court's first look 91 00:04:59,320 --> 00:05:03,560 Speaker 1: at a min inistration initiative since the Justice upheld President 92 00:05:03,560 --> 00:05:07,880 Speaker 1: Trump's travel band last year. Are there any implications beyond 93 00:05:07,920 --> 00:05:12,480 Speaker 1: the census question here, for example, two questions of presidential power? 94 00:05:13,080 --> 00:05:15,680 Speaker 1: You know, there could be it could be a case 95 00:05:15,720 --> 00:05:19,320 Speaker 1: that's very limited to the census, but certainly there It 96 00:05:19,440 --> 00:05:23,200 Speaker 1: does suggest for those who are critical the Trump administration 97 00:05:23,440 --> 00:05:26,840 Speaker 1: worried about the Supreme Court, I think ruling, if it's 98 00:05:26,880 --> 00:05:30,000 Speaker 1: what I am anticipating it will be, will stoke those 99 00:05:30,040 --> 00:05:32,800 Speaker 1: fears that this is a court that is not very 100 00:05:32,800 --> 00:05:36,520 Speaker 1: eager to stand up to the Trump administration when it 101 00:05:36,600 --> 00:05:38,960 Speaker 1: violates the law. And of course the Trump administration says, 102 00:05:38,960 --> 00:05:41,920 Speaker 1: we're not violating the law. We had perfectly good reasons. 103 00:05:42,000 --> 00:05:45,360 Speaker 1: And we will debate all that after the opinion comes up, 104 00:05:45,400 --> 00:05:47,960 Speaker 1: but right now it does seem like the Conservatives are 105 00:05:48,000 --> 00:05:50,440 Speaker 1: inclined to let the Trump administration do what it wants 106 00:05:50,480 --> 00:05:54,080 Speaker 1: to do. So, Greg did the administration stick with its 107 00:05:54,320 --> 00:05:57,720 Speaker 1: argument that Will Burrow said they were doing this so 108 00:05:57,760 --> 00:06:00,920 Speaker 1: they could enforce the Voting Rights Act? It did, yes, 109 00:06:01,080 --> 00:06:03,599 Speaker 1: And it also said that the evidence I talked about 110 00:06:03,640 --> 00:06:07,000 Speaker 1: the Census Bureau had made its recommendation and and said 111 00:06:07,040 --> 00:06:10,920 Speaker 1: it would depress participation. And Ross said, you know, I'm 112 00:06:10,960 --> 00:06:13,239 Speaker 1: not buying their case. I'm not buying what they're saying 113 00:06:13,279 --> 00:06:16,400 Speaker 1: about about reducing participation, at least not to the extent 114 00:06:16,520 --> 00:06:19,200 Speaker 1: that the Census Bureau was concerned about it. Essentially, the 115 00:06:19,279 --> 00:06:21,720 Speaker 1: administration's cases look in a lot of the fact that 116 00:06:21,760 --> 00:06:23,680 Speaker 1: it's not totally clear that it would or even how 117 00:06:23,760 --> 00:06:26,280 Speaker 1: much it would to press participation, and that we had 118 00:06:26,320 --> 00:06:29,640 Speaker 1: this other concern about the Voting Rights Act. Balancing those factors, 119 00:06:29,640 --> 00:06:31,880 Speaker 1: it was a reasonable decision for the Secretary to make 120 00:06:32,080 --> 00:06:34,080 Speaker 1: to include the question one of the quick point I'll 121 00:06:34,080 --> 00:06:36,479 Speaker 1: make is just that the administration is really pounding hard 122 00:06:36,480 --> 00:06:38,839 Speaker 1: on the notion that there's a long history of asking 123 00:06:38,880 --> 00:06:42,840 Speaker 1: about the citizenship in the census, not always in the 124 00:06:42,880 --> 00:06:45,520 Speaker 1: same way and not of every person, but there's a 125 00:06:45,560 --> 00:06:47,760 Speaker 1: history that may matter a lot when the Court reaches 126 00:06:47,800 --> 00:06:52,719 Speaker 1: its decision before about yes yes. Now, you know, what's 127 00:06:52,800 --> 00:06:56,080 Speaker 1: one potentially significant difference, at least for the liberals, will 128 00:06:56,120 --> 00:06:58,240 Speaker 1: be that it wasn't the questions were directed to the 129 00:06:58,240 --> 00:07:02,000 Speaker 1: household rather than each individual person. And you know, questions 130 00:07:02,000 --> 00:07:04,719 Speaker 1: about citizenship are still had been over the past several 131 00:07:04,720 --> 00:07:08,400 Speaker 1: decades asked on another survey. Thanks so much, Greg, That's 132 00:07:08,400 --> 00:07:13,520 Speaker 1: Bloomberg New Supreme Court Report at Greg's store. Thanks for 133 00:07:13,560 --> 00:07:16,800 Speaker 1: listening to the Bloomberg Law Podcast. You can subscribe and 134 00:07:16,880 --> 00:07:20,120 Speaker 1: listen to the show on Apple Podcasts, SoundCloud, and on 135 00:07:20,200 --> 00:07:24,920 Speaker 1: Bloomberg dot com Slash podcasts. I'm June Grasso. This is 136 00:07:24,960 --> 00:07:25,560 Speaker 1: Bloomberg