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Speaker 1: This is Bloomberg Law, with June Grosseo from Bloomberg Radio. Today,

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Speaker 1: the Supreme Court upheld the long held principle of birthright citizenship,

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Speaker 1: rejecting President Trump's attempt to redefine what it means to

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Speaker 1: be an American. Trump's executive order would have restricted birthright

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Speaker 1: citizenship to babies with at least one parent who's a

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Speaker 1: US citizen or a Green Card holder, but in a

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Speaker 1: six to three decision, the Court reaffirmed a ruling from

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Speaker 1: one hundred and twenty eight years ago that except for

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Speaker 1: the children of ambassadors, the Fourteenth Amendment guarantees that all

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Speaker 1: people born in the United States are citizens.

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Speaker 2: The Supreme Court decided this issue definitively in eighteen ninety eight,

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Speaker 2: and again today reaffirmed that the Fourteenth Amendment means that

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Speaker 2: everyone born here is a citizen alike that can only

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Speaker 2: be changed by constitutional amendment, and that effort will fail.

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Speaker 1: The case was personal for Celia Wang, the ACLU attorney

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Speaker 1: who argued it before the court. She was born in

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Speaker 1: Oregon to parents from Taiwan who are not naturalized citizens

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Speaker 1: at the time. In the majority opinion, Chief Justice John

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Speaker 1: Roberts said that the Framers of the Fourteenth Amendment extended

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Speaker 1: that promise of citizenship quote to every freeborn person in

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Speaker 1: this land, and we keep that promise today. My guest

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Speaker 1: is an expert in constitutional law, Professor David super of

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Speaker 1: Georgetown Law. How big a loss is this for President Trump?

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Speaker 1: I mean, he has been using this as an issue

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Speaker 1: for more than a decade. He even sat in on

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Speaker 1: the oral arguments, part of them at least, and issued

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Speaker 1: this executive order within hours of his inauguration.

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Speaker 3: This is important for him symbolically, but I don't think

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Speaker 3: it ever mattered very much substantively, And I'm sure his

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Speaker 3: lawyers told him from the get go that he had

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Speaker 3: no chance.

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Speaker 1: The Court's decision and the descents were almost two hundred pages.

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Speaker 1: Chief Justice Roberts wrote the majority opinion, explain what he

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Speaker 1: based the decision on.

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Speaker 3: Yeah, the Chief Justice looked at the history of the

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Speaker 3: language of the Fourteenth Amendment and found that, going far

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Speaker 3: back into the English common law, someone who is born

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Speaker 3: in a place is subject to the jurisdiction of that place.

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Speaker 3: And when the Fourteenth Amendment says that children that are

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Speaker 3: born in the US subject to the US's jurisdiction are citizens,

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Speaker 3: he said that that means they're just here, except in

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Speaker 3: the very special circumstance of the kids of diplomats or

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Speaker 3: perhaps people who are born during a foreign military operation.

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Speaker 3: But with those very very limited exceptions. He found that

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Speaker 3: the framers of the fourteenth Amendment used well known terms

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Speaker 3: from the English common law, and we were bound by them.

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Speaker 1: And he said there was scant evidence to support the

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Speaker 1: Trump administration's dramatically revisionist few. And I remember during the

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Speaker 1: oral arguments that Justice Elena Kagan pointed out to the

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Speaker 1: Solicitor General that he was relying on obscure sources like

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Speaker 1: an oration delivered at President Lincoln's funeral. They didn't have

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Speaker 1: much law to back them up, did they.

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Speaker 3: They really didn't. And again they should have understood this.

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Speaker 3: It's striking that what they effectively were trying to do

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Speaker 3: is overrule a case from the nineteenth century called wom

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Speaker 3: King Art, which was handed down by almost the same

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Speaker 3: Supreme Court that gave us separate but equal at plus

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Speaker 3: e v. Ferguson, one of the most reactionary courts in

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Speaker 3: the history of the country. Found found that birthright citizenship

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Speaker 3: means what it says, and if President Trump is trying

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Speaker 3: to get even farther to the right, even deeper into

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Speaker 3: white supremacy than the plus ev Ferguson Court. That's a challenge.

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Speaker 1: Despite that, And I remember when Trump's executive order first

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Speaker 1: came out, people were like, this is crazy, this is

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Speaker 1: not going to fly. But yet you had three of

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Speaker 1: the Court's most conservative justices, Clarence Thomas, Samuel Leito, and

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Speaker 1: Neil Gorsitch dissented. Now Thomas and Alito are no surprise,

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Speaker 1: they even dissented in the tariff's case, But how did

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Speaker 1: they defend their descents.

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Speaker 3: In many respects? Therefore, descents because Justice Kavanaugh agreed with

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Speaker 3: the dissenters on the constitutional issues, so only a five

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Speaker 3: to four majority said that the Constitution protects people's birthright citizenship.

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Speaker 3: Three of them thought that the president can take it

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Speaker 3: away himself and or thought that Congress could. And it's

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Speaker 3: instructive that the dissenters really don't come up with a

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Speaker 3: single coherent theory, nor really does the federal government. They're

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Speaker 3: getting a scrap from here and a scrap from there

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Speaker 3: and trying to weave it into something. And they have

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Speaker 3: quite a number of different legal theories going on. But

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Speaker 3: they seem to say well, at some point the US

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Speaker 3: deviated from the English common law. Kind of remarkable from

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Speaker 3: judges who, on other occasions treat the common laws as

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Speaker 3: practically having been handed down on tablets Moses. But apparently

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Speaker 3: we deviated from the English common law. But no one's

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Speaker 3: quite sure when or how. Maybe someone said something at

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Speaker 3: someone's funeral, so maybe that's a big deal. But they

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Speaker 3: say that we've gone off to a different theory, but

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Speaker 3: he can't say where, he can't provide legal authority for that,

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Speaker 3: and the legal theories they come up with don't make

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Speaker 3: a great deal of sense. Taking some of them seriously,

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Speaker 3: they would seem to mean that anyone born here to

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Speaker 3: foreign parents, no matter how legal the parent status might be,

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Speaker 3: is not a US citizen. And if that's true, then

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Speaker 3: why did they even bother putting that language into the

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Speaker 3: fourteenth Amendment?

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Speaker 1: Are they going more and more away from textual analysis then, or.

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Speaker 3: It's strikingly unprincipled. And I mean, we've come to expect

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Speaker 3: a lot of this from Justice Alito and Justice Kavanaugh.

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Speaker 3: I had hoped that Justice Thomas would use this as

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Speaker 3: a chance to make a strong pitch for originalism and

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Speaker 3: say I don't like this result. I do like this President,

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Speaker 3: but originalism tells me that that's what this means. But

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Speaker 3: he doesn't do that. He comes up up with this

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Speaker 3: very convoluted theory, which I think badly undercuts originalism. I

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Speaker 3: was also disappointed frankly with Justice Gorsuch's position here, because

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Speaker 3: I think he takes originalism seriously. And the case that

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Speaker 3: they were trying to overrule Wan kim Ark is a

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Speaker 3: model of originalist reasoning, something that you would think they

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Speaker 3: would want to emulate rather than try to pick apart.

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Speaker 1: Speaking about Wan kim Ark from one hundred and twenty

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Speaker 1: eight years ago, just yesterday the court overruled Humphrey's executor,

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Speaker 1: a ninety year old precedent, and today in the campaign

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Speaker 1: finance case they overruled a precedent from two thousand and one.

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Speaker 1: Does precedent have any effect on them anymore? Do they

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Speaker 1: even feel like they have to follow it?

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Speaker 3: I think President has stopped mattering very much. There are

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Speaker 3: some respectable theories that say that we should follow the

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Speaker 3: best reading of the Constitution, we should follow an originalist meaning,

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Speaker 3: or we should follow a textual analysis or something like that,

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Speaker 3: but they don't do that either. And in the case

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Speaker 3: overruling Humphrey's executor. They create a bunch of exceptions because

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Speaker 3: they think these are good public policy. They don't have

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Speaker 3: a coherent originalist theory for these exceptions. Indeed, their theory

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Speaker 3: for the whole Slaughter case would seem to suggest that

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Speaker 3: the Federal Reserve should be under the most presidential control.

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Speaker 3: But for policy reasons and because they don't want to

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Speaker 3: be blamed for a recession, they create an exception. So

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Speaker 3: precedent doesn't matter, but neither does a coherent theory. This

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Speaker 3: is very policy driven judging.

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Speaker 1: I was going to say that, you know, you hear

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Speaker 1: from Trump and others in the administration complaints about liberal

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Speaker 1: activist judges, but it seems like the Supreme Court's conservative

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Speaker 1: justices have become activists.

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Speaker 3: They have become activists activists in pursuit of what they

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Speaker 3: think is good public policy, which is usually conservative but

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Speaker 3: sometimes has other wrinkles to it. They're making an exception

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Speaker 3: to presidential power over the federal Reserve is not really conservative.

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Speaker 3: It's that they don't want to crash the economy. And

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Speaker 3: I don't want to crash the economy either, so I'm

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Speaker 3: glad the Federal Reserve is not under the president's sum completely,

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Speaker 3: but I don't think that's principal judging. So we're not

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Speaker 3: a court of precedent, and we're not really originalist. We

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Speaker 3: cite old stuff, but not usually definitive evidence of original

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Speaker 3: public meaning, just sort of random old stuff. So we're

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Speaker 3: really off on our own with this court doing what

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Speaker 3: they think is best.

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Speaker 1: So this may have been an immigration laws for but

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Speaker 1: in every other immigration case this term, the court has

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Speaker 1: ruled against immigrants' rights and for the Trump administration, I

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Speaker 1: mean time after time. Just last week you had the

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Speaker 1: ending of GPS and also that asylum seekrets can be

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Speaker 1: turned away at the border. So all in all, Trump

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Speaker 1: has had a very good term on immigration with this court.

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Speaker 3: He has and some of those decisions are plausible. Some

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Speaker 3: of them are weird. I mean, I didn't think that

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Speaker 3: he would lose any of them, and he didn't, but

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Speaker 3: they really had to bend themselves into pretzels for some

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Speaker 3: of them. And it's kind of remarkable that they didn't

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Speaker 3: even require him to make a finding consistent with the

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Speaker 3: statute about temporary protective status. If he wants to make

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Speaker 3: a finding that conditions have improved in thus in such

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Speaker 3: a country, that might just doing it, but of course

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Speaker 3: saying conditions have improved in Haiti when the State Department

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Speaker 3: is hopping up and down, don't go there, don't go there.

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Speaker 3: If you go there, you won't come back. And yet

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Speaker 3: we are sending people there implicitly saying that things have improved,

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Speaker 3: but not making the president say it. This Supreme Court

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Speaker 3: has said that we need openness and then let the

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Speaker 3: voters decide. Here Congress has said, you grant temporary protective

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Speaker 3: status to people fleeing extremely unsafe places, and you end

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Speaker 3: it when the place becomes safe. And we aren't forcing

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Speaker 3: the president to make that declaration, stand behind it and

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Speaker 3: go to the voters to defend it.

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Speaker 1: The Chief Justice, when he's in the majority, gets to

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Speaker 1: assign the opinion, and Roberts assigned himself the majority opinion

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Speaker 1: in this birthright citizenship case, which is one of the

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Speaker 1: biggest of the term, and yesterday in two other very

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Speaker 1: high profile cases, the ones involving Fed Governor Lisa Cook

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Speaker 1: and former FTC Commissioner Rebecca Slaughter. And that's a pattern

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Speaker 1: we've seen in other terms. Obviously, he has the right

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Speaker 1: to do that, But what's your take on Robert saving

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Speaker 1: the best for himself.

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Speaker 4: Essentially, he hasn't done that all the time, but he

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Speaker 4: has certainly done it a great deal, and I think

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Speaker 4: it's because he understands the scrutiny the court is under

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Speaker 4: and believes that he can write an opinion that will

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Speaker 4: be less vulnerable to.

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Speaker 3: Public criticism than some of his colleagues would. He's a

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Speaker 3: very hard worker, He's got impressive skills, and I think

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Speaker 3: he believes he will produce the most teflon opinions, and

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Speaker 3: history suggests that he may be right.

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Speaker 1: How did other Chief Justices handle the assignment of the

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Speaker 1: Jardi opinion?

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Speaker 3: It really varies a great deal. There are some very

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Speaker 3: important war in court decisions that Chief Justice Warren assigned

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Speaker 3: to himself, most obviously Brown versus Board of Education. He

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Speaker 3: was trying to get a unanimous court, which he succeeded

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Speaker 3: in doing, and felt that having personal control of the

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Speaker 3: opinion as he was negotiating with the holdouts would allow

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Speaker 3: him to make the kinds of modifications that we unify

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Speaker 3: the court. Chief Justice Burger assigned himself opinions that seemed

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Speaker 3: interesting and important. Chief Justice Burger's skills were probably not

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Speaker 3: on the level of either Chief Justice Ward or Chief

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Speaker 3: Justice Roberts, and some of those opinions that he assigned

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Speaker 3: himself have puzzled people ever since. My sense of Chief

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Speaker 3: Justice Ranquist is that he did not particularly abuse the

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Speaker 3: privilege of assigning opinions. He certainly took some important ones

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Speaker 3: for himself, but left as many for his colleagues. So

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Speaker 3: it's a matter of different style. I think we've never

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Speaker 3: had a Chief Justice since John Marshall who cared as

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Speaker 3: much about the Court's public image as the current Chief

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Speaker 3: Justice does, and I think he correctly sees the tone

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Speaker 3: of these opinions as being very important to persuading the

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Speaker 3: public that the Court is in fact pursuing a legal

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Speaker 3: agenda rather than an ideological one.

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Speaker 1: Speaking of that, of the seventeen cases announced in the

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Speaker 1: last two weeks of the term, eleven were split six

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Speaker 1: to three down ideological lines. And that involves some of

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Speaker 1: the cases that we've been talking about, immigration, presidential power,

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Speaker 1: gun rights, human rights, etc. What does that tell you

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Speaker 1: on a court that now is the liberals are all

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Speaker 1: Democratic appointees and the Conservatives are all Republican appointees.

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Speaker 3: Well, one thing that tells this is something I think

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Speaker 3: we've known for a while is that both parties are polarizing.

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Speaker 3: The last really moderate Republican appointee was David Suitor. President

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Speaker 3: George H. W. Bush was harshly criticized for that and

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Speaker 3: was defeated for reelection. I think you could make an

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Speaker 3: argument that both Justice Stephen Bryer and Justice Atlanta Kagan

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Speaker 3: were fairly moderate Democratic appointees. I'm not sure that a

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Speaker 3: president today could make similar pointees without getting pretty harshly

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Speaker 3: criticized by parts of the Democratic coalition. But the other

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Speaker 3: point here is that because we've gotten rid of the

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Speaker 3: filibuster for judicial confirmations, if a president controls the Senate,

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Speaker 3: they can appoint whomever they want, and you end up

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Speaker 3: with justices who are extremely ideologically reliable. You don't have

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Speaker 3: to make the case that this is a distinguished jurist.

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Speaker 3: You just have to make the case that they're going

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Speaker 3: to vote for your party.

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Speaker 1: Do you think that these you know, six to three decisions.

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Speaker 1: Do you think that that's part of the reason why

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Speaker 1: it seems like the justice's nerves are frayed. I mean,

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Speaker 1: we have you know, Justic Soda Mayor involved in that

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Speaker 1: criticism of Justice Kavanaugh. You have Justice Soda Mayor reading

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Speaker 1: from her dissent, and Justice Alito saying, you know, he

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Speaker 1: was surprised by it. I mean, it seems like things

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Speaker 1: are fraid they are.

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Speaker 3: Things can sometimes get a little chippy at the end

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Speaker 3: of the term when people have strong emotional feelings about things.

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Speaker 3: But I think the problem that the liberal justices have

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Speaker 3: at this point is that they don't see a coherent

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Speaker 3: judicial philosophy of the conservatives. It's one thing, we're going

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Speaker 3: all in with originalism. Even if you aren't an originalist.

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Speaker 3: You say, okay, that gives us something predictable and lets

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Speaker 3: us know where the law is going to be. It's

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Speaker 3: wondering if we're going to be strong on upholding precedent.

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Speaker 3: But what we have here is a court that chuck's

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Speaker 3: precedent fairly, casually, without a lot of reason, without going

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Speaker 3: through the steps that have been adhere to previously. That

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Speaker 3: they cite reasons and then immediately ignore those reasons in

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Speaker 3: literally the next case. And so I think the sense

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Speaker 3: is that this is a very political process rather than

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Speaker 3: an adjudicatory one, and that's not what they signed up for.

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Speaker 3: They signed up to be judges on the highest court

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Speaker 3: in the land, not political overlords.

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Speaker 1: Just as Aldo and Justice Gorsa didn't even appear on

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Speaker 1: the bench today. Is that an indication of something or

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Speaker 1: am I just reading too much into it They had

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Speaker 1: something to do. I don't know.

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Speaker 3: On the one hand, the Court's public release of opinions

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Speaker 3: is a bit anachronistic. Most of us don't tune into that,

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Speaker 3: but get the opinions off of the Court's website and

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Speaker 3: start reading the instead. Very very few courts do public

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Speaker 3: announcements of opinions. A few district judges do. Most lawyers,

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Speaker 3: I think, find that annoying. So I don't put a

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Speaker 3: lot of truck in the ceremony, and if they ended

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Speaker 3: the ceremony, I wouldn't be terribly disturbed. But if they're

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Speaker 3: having it, it says something about how much respect for

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Speaker 3: your institution you have if you can't bother to show up,

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Speaker 3: if you can't change your plane reservations or whatever it

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Speaker 3: is to your south Sea getaway long enough to sit

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Speaker 3: for the last day of opinions.

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Speaker 1: Yeah, and it's nice to be on vacation for three months.

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Speaker 1: Thanks so much, David for all your analysis of the

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Speaker 1: Supreme Court decisions this term. That's Georgetown Law professor David

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Speaker 1: super and that's it for this edition of The Bloomberg

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Speaker 1: Law Show. Remember you can always get the latest legal

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Speaker 1: news on our Bloomberg Law Podcast. You can find them

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Speaker 1: on Apple Podcasts, Spotify, and at www dot bloomberg dot

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Speaker 1: The Bloomberg Law Show every weeknight at ten pm Wall

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