Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. This morning, the
Speaker 1: Supreme Court heard one of the biggest cases of the
Speaker 1: term and one of the most politically divisive, the Trump
Speaker 1: Administration's addition of a citizenship question to the census. In
Speaker 1: Bloomberg New Supreme Court reporter of Greg Store was there
Speaker 1: and he joins me, now, so, Greg, this is the
Speaker 1: case that has been talked about more than probably just
Speaker 1: about any other set. The scene, was it crowded? Were
Speaker 1: their protests? I didn't see any protest June, but it
Speaker 1: was certainly proud of very long lines outside the court
Speaker 1: to get in and claim one of the few seats
Speaker 1: for it. The Court, as you know, generally does not
Speaker 1: release the audio of an argument on the same day
Speaker 1: and again said it wouldn't do it this time. So
Speaker 1: the only way you get to or what what was
Speaker 1: happening today is if you had one of those a
Speaker 1: few hundred seats in the courtroom. So what was the
Speaker 1: main legal question as far as the justices were concerned.
Speaker 1: There are a multitude of legal questions in the case,
Speaker 1: but the core of it seemed to be whether under
Speaker 1: the federal law that that governed administrative agencies, the Commerce
Speaker 1: Secretary Wilbur Ross acted in a in a reasonable manner
Speaker 1: by saying, I reject the recommendation of the Census Bureau.
Speaker 1: The Census Bureau said, if we add a question about
Speaker 1: citizenship that will reduce participation, it will lessen the accuracy
Speaker 1: of the responses we do get, and we're actually better
Speaker 1: able to figure out how many people are are in
Speaker 1: the country and whether they are citizens through other means.
Speaker 1: The Commerce Secretary rejected that recommendation and that analysis, and
Speaker 1: the question was whether the core question was really whether
Speaker 1: he had any real basis for doing so. So there
Speaker 1: were three Federal Court judges who heard this case, and
Speaker 1: all three ruled against the administration, and some were very
Speaker 1: critical of Commerce Secretary Ross's actions. Did their opinions count
Speaker 1: for anything in the arguments? Well, it's certainly there with
Speaker 1: the court's liberals. So the case that is before the
Speaker 1: Court is one that came out of New York. UH
Speaker 1: several hundred page opinion by Judge Jesse Furman there, who
Speaker 1: said that Ross committed a quote veritable smortgage board violations
Speaker 1: of the Administrative Procedure Act. You know, there were certainly
Speaker 1: a lot of questions for the Trump administration's lawyer, Solicitor
Speaker 1: General Noel Francisco about the things that we're in Furman's opinion,
Speaker 1: but there was really no evidence that had had any
Speaker 1: impact on the likely swing justices in the case. Who
Speaker 1: are Chief Justice Roberts and Justice Kavanaugh? What did you
Speaker 1: see from the justice's questions as to which way they're leaning? So,
Speaker 1: as I alluded to, there was really no indication that
Speaker 1: either Roberts or Kavanaugh were especially bothered by all these
Speaker 1: violations that Judge Furman found, basically to set the scene
Speaker 1: a little more, there's a lot of evidence in the record.
Speaker 1: What Judge Furman found was that Secretary Ross really wanted
Speaker 1: to put as citizenship question on the census and was
Speaker 1: sort of shopping around through the Homeland Security Department of
Speaker 1: Justice Department for some entity that would ask formally ask
Speaker 1: the Commerce Department to put a question on there, and
Speaker 1: eventually got the Justice Department to say, hey, it would
Speaker 1: help us enforce the Voting Rights Act. And there's no
Speaker 1: indication that that either roberts or Kavanaugh were bothered by
Speaker 1: that process or agreed with Judge Furman that those purported
Speaker 1: reasons that Ross gave for putting the question on there
Speaker 1: were a pretext. They seem perfectly comfortable letting the administration
Speaker 1: ask the question. So then does that indicate a five
Speaker 1: for split in the administration's favor? You know, I'm often
Speaker 1: wrong when I predicted arguments will come out a lot
Speaker 1: sometimes right, this one sure felt like a five to four.
Speaker 1: It's hard to say. We already have some evidence from
Speaker 1: some preliminary rulings on some earlier questions that there will
Speaker 1: be a split. The more conservative justices have staked out
Speaker 1: some ground and made pretty clear they don't think this
Speaker 1: case has any merit to it based on the questions.
Speaker 1: It's awfully hard to see how they are not joined
Speaker 1: by Robertson and Kavanaugh to make a five four decision.
Speaker 1: So then would that flip the Court's usual divide when
Speaker 1: it comes to administrative agencies and how much weight they
Speaker 1: give them. Yeah, it's sort of would You know, We've
Speaker 1: been talking a lot about, especially with Kavanaugh and Neil
Speaker 1: Gorser's joining the Court about how they are justices who
Speaker 1: tend to be skeptical of giving too much difference to
Speaker 1: administrative agencies like the e PA, for example, and so
Speaker 1: there's an expectation this court will limit the power of
Speaker 1: administrative agencies in those contexts. Here, however, Justice Kavanaugh, for example,
Speaker 1: said that the statute that governs the taking of the
Speaker 1: senses gives huge discretion to the Commerce Secretary. So in
Speaker 1: this context, it didn't seem like those limits on administrative
Speaker 1: agencies that they might apply elsewhere. We're going to carry
Speaker 1: the day here. So this is the court's first look
Speaker 1: at a min inistration initiative since the Justice upheld President
Speaker 1: Trump's travel band last year. Are there any implications beyond
Speaker 1: the census question here, for example, two questions of presidential power?
Speaker 1: You know, there could be it could be a case
Speaker 1: that's very limited to the census, but certainly there It
Speaker 1: does suggest for those who are critical the Trump administration
Speaker 1: worried about the Supreme Court, I think ruling, if it's
Speaker 1: what I am anticipating it will be, will stoke those
Speaker 1: fears that this is a court that is not very
Speaker 1: eager to stand up to the Trump administration when it
Speaker 1: violates the law. And of course the Trump administration says,
Speaker 1: we're not violating the law. We had perfectly good reasons.
Speaker 1: And we will debate all that after the opinion comes up,
Speaker 1: but right now it does seem like the Conservatives are
Speaker 1: inclined to let the Trump administration do what it wants
Speaker 1: to do. So, Greg did the administration stick with its
Speaker 1: argument that Will Burrow said they were doing this so
Speaker 1: they could enforce the Voting Rights Act? It did, yes,
Speaker 1: And it also said that the evidence I talked about
Speaker 1: the Census Bureau had made its recommendation and and said
Speaker 1: it would depress participation. And Ross said, you know, I'm
Speaker 1: not buying their case. I'm not buying what they're saying
Speaker 1: about about reducing participation, at least not to the extent
Speaker 1: that the Census Bureau was concerned about it. Essentially, the
Speaker 1: administration's cases look in a lot of the fact that
Speaker 1: it's not totally clear that it would or even how
Speaker 1: much it would to press participation, and that we had
Speaker 1: this other concern about the Voting Rights Act. Balancing those factors,
Speaker 1: it was a reasonable decision for the Secretary to make
Speaker 1: to include the question one of the quick point I'll
Speaker 1: make is just that the administration is really pounding hard
Speaker 1: on the notion that there's a long history of asking
Speaker 1: about the citizenship in the census, not always in the
Speaker 1: same way and not of every person, but there's a
Speaker 1: history that may matter a lot when the Court reaches
Speaker 1: its decision before about yes yes. Now, you know, what's
Speaker 1: one potentially significant difference, at least for the liberals, will
Speaker 1: be that it wasn't the questions were directed to the
Speaker 1: household rather than each individual person. And you know, questions
Speaker 1: about citizenship are still had been over the past several
Speaker 1: decades asked on another survey. Thanks so much, Greg, That's
Speaker 1: Bloomberg New Supreme Court Report at Greg's store. Thanks for
Speaker 1: listening to the Bloomberg Law Podcast. You can subscribe and
Speaker 1: listen to the show on Apple Podcasts, SoundCloud, and on
Speaker 1: Bloomberg dot com Slash podcasts. I'm June Grasso. This is
Speaker 1: Bloomberg