1 00:00:03,480 --> 00:00:07,560 Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 2 00:00:07,640 --> 00:00:10,440 Speaker 1: day we bring you insight and analysis into the most 3 00:00:10,480 --> 00:00:13,399 Speaker 1: important legal news of the day. You can find more 4 00:00:13,480 --> 00:00:18,040 Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud, 5 00:00:18,320 --> 00:00:22,640 Speaker 1: and on Bloomberg dot com Slash podcasts. Supreme Court Justices 6 00:00:22,720 --> 00:00:26,119 Speaker 1: Ruth Bader Ginsburg and Neil Gorst's traded places in a 7 00:00:26,239 --> 00:00:29,640 Speaker 1: manner in a criminal sentence in case, with Ginsburg joining 8 00:00:29,640 --> 00:00:33,120 Speaker 1: the Conservatives in the majority and Gorset's joining the liberals 9 00:00:33,120 --> 00:00:35,640 Speaker 1: in the minority in a five to four decision on 10 00:00:35,720 --> 00:00:39,200 Speaker 1: supervised release that could have the effect of keeping defendants 11 00:00:39,280 --> 00:00:42,920 Speaker 1: locked up longer. Joining me as Douglas Berman, Professor Mritz 12 00:00:42,960 --> 00:00:47,120 Speaker 1: College of Law at the Ohio State University, So Doug. 13 00:00:47,280 --> 00:00:50,640 Speaker 1: Justice Clarence Thomas wrote the majority opinion that was joined 14 00:00:50,680 --> 00:00:55,400 Speaker 1: by Chief Justice John Roberts, Justices Samuel Alito, Brett Kavanaugh, 15 00:00:55,480 --> 00:00:59,360 Speaker 1: and Ruth Bader Ginsburg. It's a bit technical. Can you 16 00:00:59,400 --> 00:01:02,520 Speaker 1: explain the reasoning briefly? It's actually very technical. It has 17 00:01:02,560 --> 00:01:05,360 Speaker 1: to do with the issue of when a defendant, after 18 00:01:05,400 --> 00:01:07,800 Speaker 1: he's already served a federal sentence and is now on 19 00:01:08,560 --> 00:01:12,160 Speaker 1: let's notice, supervised release, which is when he's being watched 20 00:01:12,200 --> 00:01:16,200 Speaker 1: closely in community supervision. He goes and commits another crime, 21 00:01:16,520 --> 00:01:18,520 Speaker 1: he can get prosecuted for that other crime, and in 22 00:01:18,560 --> 00:01:20,920 Speaker 1: the state system he you know often will. But then 23 00:01:20,959 --> 00:01:24,959 Speaker 1: the time he served in pre trial detention while dealing 24 00:01:24,959 --> 00:01:29,319 Speaker 1: with that other crime, does that count as fulfilling his 25 00:01:29,400 --> 00:01:32,679 Speaker 1: time on supervised release in the federal system or rather 26 00:01:33,280 --> 00:01:35,680 Speaker 1: is that time told? In other words, he doesn't get 27 00:01:35,720 --> 00:01:39,400 Speaker 1: credit for while he's locked up and supervised, locked up 28 00:01:39,400 --> 00:01:42,920 Speaker 1: in pre child detention for this period of supervision. And so, Uh, 29 00:01:43,000 --> 00:01:47,040 Speaker 1: the statute that control supervisor release says, if you're in prison, 30 00:01:47,040 --> 00:01:48,880 Speaker 1: you don't get credit for that time. But what was 31 00:01:49,000 --> 00:01:52,760 Speaker 1: unclear is what if you're in prison before you've been convicted, 32 00:01:52,920 --> 00:01:56,520 Speaker 1: rather than for serving another prison sentence. And that's what 33 00:01:56,640 --> 00:01:59,480 Speaker 1: divided the court in this unusual way, this issue of 34 00:01:59,480 --> 00:02:02,960 Speaker 1: statutor interpretation for this you know, very technical question of 35 00:02:03,760 --> 00:02:08,760 Speaker 1: when it's a certain kind of imprisonment pre trial detention. Uh, 36 00:02:08,840 --> 00:02:12,120 Speaker 1: do you count that as serving part of your supervisor 37 00:02:12,120 --> 00:02:16,320 Speaker 1: release or is that told instead? So do you understand 38 00:02:16,440 --> 00:02:19,640 Speaker 1: or can you figure out why Ginzberg joined the conservatives 39 00:02:19,639 --> 00:02:24,120 Speaker 1: and gore such the liberals in this case, not really, 40 00:02:24,440 --> 00:02:27,600 Speaker 1: or at least there's nothing expressed in the opinion, you know. 41 00:02:27,639 --> 00:02:29,680 Speaker 1: And when I first saw the breakdown, I'm like, well, 42 00:02:29,720 --> 00:02:34,880 Speaker 1: maybe it's a particular theory of statutory interpretation. You know. Oftentimes, uh, 43 00:02:34,919 --> 00:02:38,760 Speaker 1: the justices have different approaches to interpreting statutes that don't 44 00:02:38,800 --> 00:02:42,480 Speaker 1: break down on the usual ideological lines. And my guess 45 00:02:42,520 --> 00:02:44,520 Speaker 1: is that's probably the closest I can come up with 46 00:02:44,680 --> 00:02:47,960 Speaker 1: for a theory of this that just um, Justice Ginsburg 47 00:02:48,040 --> 00:02:50,320 Speaker 1: thought this was a more natural reading of the statute 48 00:02:50,320 --> 00:02:52,720 Speaker 1: and so more inclined to have a kind of pro 49 00:02:52,800 --> 00:02:56,040 Speaker 1: government position, whereas justice course that you actually has been 50 00:02:56,520 --> 00:03:00,519 Speaker 1: fairly pro defendants rights in a lot of settings, may 51 00:03:00,560 --> 00:03:03,920 Speaker 1: well have thought, uh, it just wasn't clear enough. And um, 52 00:03:03,960 --> 00:03:06,840 Speaker 1: you know, he's very much in justice scaliash tradition, where 53 00:03:07,360 --> 00:03:10,360 Speaker 1: if the statute is not clear, uh, the defendant, the 54 00:03:10,360 --> 00:03:13,040 Speaker 1: individual should always win over the government, um, in a 55 00:03:13,080 --> 00:03:15,200 Speaker 1: criminal justice setting. And so I can I can sort 56 00:03:15,200 --> 00:03:17,040 Speaker 1: of explain a little bit more why I think Gorsuch 57 00:03:17,120 --> 00:03:20,000 Speaker 1: may have gone with the dissenters that with the more 58 00:03:20,040 --> 00:03:26,600 Speaker 1: pro defendant approach. Justice Ginsberg with the majority is rough it. Well, again, 59 00:03:26,840 --> 00:03:29,639 Speaker 1: you know, the explanation for justice coursuch is he's he's 60 00:03:30,280 --> 00:03:35,320 Speaker 1: a disinclined to um allow government power unless uh, the 61 00:03:35,320 --> 00:03:38,480 Speaker 1: government is clearly in statute or in other ways, you know, 62 00:03:38,760 --> 00:03:42,760 Speaker 1: expressed the proper exercise of that power. So you know, 63 00:03:42,800 --> 00:03:45,840 Speaker 1: he kind of thinks that tie goes to the defendant approach, 64 00:03:45,920 --> 00:03:48,360 Speaker 1: even though he's conservative and other in other kinds of settings, 65 00:03:48,400 --> 00:03:50,560 Speaker 1: and there's obviously a whole whole wing of sort of 66 00:03:50,560 --> 00:03:53,600 Speaker 1: libertarian conservative thought that thinks that's that's what being a 67 00:03:53,600 --> 00:03:55,800 Speaker 1: true conservative is. You don't let the government have power 68 00:03:55,920 --> 00:03:58,600 Speaker 1: unless they're they're perfectly clear and perfectly legal in the 69 00:03:58,640 --> 00:04:01,840 Speaker 1: way they do it. Criminal cases often end up with 70 00:04:01,880 --> 00:04:08,680 Speaker 1: the justices in unusual ideological groupings. Why is that, I 71 00:04:08,760 --> 00:04:11,560 Speaker 1: think it's a function of the fact that, you know, Conservatives, 72 00:04:11,720 --> 00:04:14,880 Speaker 1: though they tend to be historically and especially more recently, 73 00:04:14,920 --> 00:04:17,240 Speaker 1: you know, for more punishment and sort of tougher on 74 00:04:17,360 --> 00:04:21,520 Speaker 1: crime politically, they still also tend to believe in smaller government, 75 00:04:21,560 --> 00:04:24,760 Speaker 1: believe in limited government. Think it's really important, uh that 76 00:04:24,880 --> 00:04:30,040 Speaker 1: constitutional principles, uh constrain what government officials are able to do. 77 00:04:30,320 --> 00:04:33,200 Speaker 1: And so for a lot of different conservatives, those will 78 00:04:33,240 --> 00:04:36,760 Speaker 1: play out in criminal cases in sort of competing ways. 79 00:04:36,920 --> 00:04:40,640 Speaker 1: And I think especially with Justice Course, so we'll see 80 00:04:40,640 --> 00:04:43,320 Speaker 1: with Justice Kavanaugh, it's true for Justice Thomas the fair 81 00:04:43,360 --> 00:04:46,880 Speaker 1: amount as well. When there are particular provisions of the 82 00:04:46,920 --> 00:04:50,600 Speaker 1: constitution that concern them that they think are especially important 83 00:04:51,000 --> 00:04:55,280 Speaker 1: to safeguard, they'll end up voting for defendants over over 84 00:04:55,320 --> 00:04:57,240 Speaker 1: the sort of tough on crime attitude that we think 85 00:04:57,320 --> 00:05:02,040 Speaker 1: is is pervasive UH in in conservative ideology. And then conversely, 86 00:05:02,080 --> 00:05:04,280 Speaker 1: for some liberals it can work the other way. They 87 00:05:04,360 --> 00:05:08,040 Speaker 1: may be more comfortable with broader grants of government power, 88 00:05:08,480 --> 00:05:11,160 Speaker 1: even when that power extends to the operation of the 89 00:05:11,160 --> 00:05:13,600 Speaker 1: criminal justice system. So there can be certain kinds of cases, 90 00:05:13,920 --> 00:05:17,440 Speaker 1: certain procedural issues where liberals are more in favor to 91 00:05:18,279 --> 00:05:21,800 Speaker 1: of government power than the conservatives are. And I sometimes 92 00:05:21,800 --> 00:05:23,760 Speaker 1: say it keeps my job interested in because you can't 93 00:05:23,760 --> 00:05:28,039 Speaker 1: always predict every vote like you can now. You've said 94 00:05:28,320 --> 00:05:32,680 Speaker 1: too in a Bloomberg News uh interview that this atypical 95 00:05:32,920 --> 00:05:36,520 Speaker 1: ideological vote breakdown fits in with what you expect to 96 00:05:36,560 --> 00:05:38,960 Speaker 1: be a theme for the rest of the term and 97 00:05:39,040 --> 00:05:43,080 Speaker 1: some pending criminal decisions. What decisions are you thinking about? 98 00:05:43,800 --> 00:05:45,360 Speaker 1: So the one I'm really keeping an eye on is 99 00:05:45,400 --> 00:05:48,160 Speaker 1: a case that was argued way back in October called Gundi, 100 00:05:48,320 --> 00:05:51,880 Speaker 1: which has to do with delegation of authority from Congress 101 00:05:52,279 --> 00:05:55,479 Speaker 1: to the Attorney General to set the rules for sex 102 00:05:55,480 --> 00:05:58,640 Speaker 1: offender laws. And again, this is one of those settings 103 00:05:58,640 --> 00:06:02,839 Speaker 1: where generally making it's liberals who are very in favor 104 00:06:02,920 --> 00:06:07,120 Speaker 1: of agencies having broad power and being able to take 105 00:06:07,200 --> 00:06:10,280 Speaker 1: delegations from Congress in general terms and then run with it. 106 00:06:10,560 --> 00:06:13,520 Speaker 1: But in the criminal setting that means the attorney general 107 00:06:13,520 --> 00:06:16,240 Speaker 1: has authority to define a law and more broadly to 108 00:06:16,760 --> 00:06:19,880 Speaker 1: encompass more criminal activity. And so um, I think the 109 00:06:19,920 --> 00:06:23,480 Speaker 1: liberals there are perhaps struggling with how broad the rules 110 00:06:23,520 --> 00:06:26,440 Speaker 1: should be the limit state power here, and likewise the conservatives. 111 00:06:26,600 --> 00:06:29,240 Speaker 1: It's a sex offender case, so that's often the type 112 00:06:29,279 --> 00:06:32,000 Speaker 1: of criminal that everybody's um kind of eager to to 113 00:06:32,080 --> 00:06:36,360 Speaker 1: be concerned about. But again, the broader principle of delegation 114 00:06:36,440 --> 00:06:40,560 Speaker 1: of power from Congress to agencies turns this case into 115 00:06:40,600 --> 00:06:42,560 Speaker 1: one that's that's going to be really interesting to see 116 00:06:42,560 --> 00:06:44,599 Speaker 1: in the court has actually taken a very long time 117 00:06:44,640 --> 00:06:47,320 Speaker 1: and unusually a long time ruling on it after hearing 118 00:06:47,320 --> 00:06:49,360 Speaker 1: the argument in October, So I think there's probably a 119 00:06:49,440 --> 00:06:53,839 Speaker 1: lot of um UH splits ideologically, and in sorting this out, 120 00:06:54,080 --> 00:06:55,520 Speaker 1: the other two cases I have an eye on in 121 00:06:55,560 --> 00:06:58,520 Speaker 1: this respect. One involves the double jeopardy clause and was 122 00:06:58,600 --> 00:07:01,400 Speaker 1: known as the dual sovereignty to lecturing UH, and that 123 00:07:01,480 --> 00:07:05,120 Speaker 1: again often kicks in views of state and federal power 124 00:07:05,440 --> 00:07:09,560 Speaker 1: in ways that change the usual ideological divides um in 125 00:07:09,600 --> 00:07:11,960 Speaker 1: the criminal justice space. And then, last but not least, 126 00:07:12,000 --> 00:07:15,080 Speaker 1: there's another one of these supervised release cases. But it 127 00:07:15,120 --> 00:07:19,200 Speaker 1: has to do with what decisions judges can make versus juries. 128 00:07:19,680 --> 00:07:22,520 Speaker 1: That's been an issue for literally twenty years that we've 129 00:07:22,520 --> 00:07:26,440 Speaker 1: seen different coalitions of justices on whether they're more functional 130 00:07:27,000 --> 00:07:28,800 Speaker 1: they think judges should be able to do stuff without 131 00:07:28,800 --> 00:07:31,120 Speaker 1: worrying too much about the formalities of how they do it, 132 00:07:31,440 --> 00:07:34,560 Speaker 1: or more formalistic and think that no, the sixth Amendment 133 00:07:34,640 --> 00:07:37,040 Speaker 1: right to a jury trial extends in all sorts of ways, 134 00:07:37,720 --> 00:07:42,000 Speaker 1: even to sentencing settings. And so um Haymond and a 135 00:07:42,000 --> 00:07:44,360 Speaker 1: gamble of the names of the cases I just referenced them. 136 00:07:44,400 --> 00:07:45,880 Speaker 1: Those two are ones that I'm keeping an eye on, 137 00:07:45,880 --> 00:07:48,200 Speaker 1: and I'm excited to see how the court source them 138 00:07:48,200 --> 00:07:51,120 Speaker 1: at all. Right, Well, we're excited with you, and we 139 00:07:51,200 --> 00:07:53,120 Speaker 1: will check back with you when they do to see 140 00:07:53,160 --> 00:07:56,560 Speaker 1: if there are any unusual alignments. Thanks so much. That's 141 00:07:56,600 --> 00:07:59,480 Speaker 1: Douglas Burman. He's professor at Moritz College of Law at 142 00:07:59,480 --> 00:08:04,640 Speaker 1: the Ohio State University. Thanks for listening to the Bloomberg 143 00:08:04,760 --> 00:08:07,840 Speaker 1: Law Podcast. You can subscribe and listen to the show 144 00:08:07,880 --> 00:08:12,560 Speaker 1: on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcast. 145 00:08:12,960 --> 00:08:15,720 Speaker 1: I'm June Brosso. This is Bloomberg