1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,640 --> 00:00:14,320 Speaker 2: Chief Justice John Roberts repeatedly stresses the importance of judicial independence. 3 00:00:14,440 --> 00:00:17,560 Speaker 2: In an interview in May, he said, the judiciary is 4 00:00:17,600 --> 00:00:19,440 Speaker 2: a coequal branch of government. 5 00:00:20,040 --> 00:00:21,200 Speaker 1: Its job is to. 6 00:00:22,720 --> 00:00:26,639 Speaker 2: Obviously decide cases, but in the course of that check 7 00:00:26,720 --> 00:00:30,040 Speaker 2: the excesses of Congress or of the executive, and that 8 00:00:30,040 --> 00:00:34,360 Speaker 2: does require degree of independence. However, in its recent term, 9 00:00:34,760 --> 00:00:37,879 Speaker 2: it doesn't appear that the Supreme Court did much to 10 00:00:38,040 --> 00:00:41,879 Speaker 2: check the excesses of the current executive. In fact, the 11 00:00:41,960 --> 00:00:45,560 Speaker 2: clear winner of the term was President Donald Trump, as 12 00:00:45,560 --> 00:00:49,080 Speaker 2: the Court sided with him on broad legal questions and 13 00:00:49,200 --> 00:00:53,559 Speaker 2: emergency requests to let his policies take effect, from throwing 14 00:00:53,640 --> 00:00:57,840 Speaker 2: transgender service members out of the military to opening hundreds 15 00:00:57,880 --> 00:01:01,600 Speaker 2: of thousands of migrants to deportation. And for the second 16 00:01:01,680 --> 00:01:04,319 Speaker 2: year in a row, the Court ended the term with 17 00:01:04,400 --> 00:01:09,759 Speaker 2: a decision handing Trump a major victory by essentially eliminating 18 00:01:09,840 --> 00:01:14,119 Speaker 2: the main tool courts have used to thwart his ambitious agenda, 19 00:01:14,680 --> 00:01:16,080 Speaker 2: the nationwide injunction. 20 00:01:16,720 --> 00:01:18,080 Speaker 1: This was a big one, wasn't it. 21 00:01:19,040 --> 00:01:23,680 Speaker 2: This was a big decision, amazing decision, one that we're 22 00:01:23,720 --> 00:01:27,720 Speaker 2: very happy about. Like almost all the high profile cases 23 00:01:27,720 --> 00:01:31,040 Speaker 2: of the term, the Court divided six to three down 24 00:01:31,200 --> 00:01:35,399 Speaker 2: ideological lines, with the conservatives of the majority and the 25 00:01:35,480 --> 00:01:39,920 Speaker 2: liberals dissenting. Joining me is constitutional law expert Michael Dorf, 26 00:01:40,160 --> 00:01:43,640 Speaker 2: a professor at Cornell Law School. Mike, the finale of 27 00:01:43,680 --> 00:01:46,280 Speaker 2: the term, if you will, was the decision in the 28 00:01:46,319 --> 00:01:51,280 Speaker 2: case over Trump's ban on automatic birthright citizenship, where the 29 00:01:51,320 --> 00:01:55,120 Speaker 2: Conservatives stripped the lower courts of the power to grant 30 00:01:55,240 --> 00:01:59,680 Speaker 2: nationwide injunctions, which have really been the only effective check 31 00:01:59,720 --> 00:02:03,080 Speaker 2: on the Trump agenda. Trump thought the decision was important 32 00:02:03,160 --> 00:02:06,000 Speaker 2: enough to call a press conference. How important do you 33 00:02:06,000 --> 00:02:06,520 Speaker 2: think it is? 34 00:02:07,520 --> 00:02:11,839 Speaker 1: That remains to be seen. The prohibition on most universal 35 00:02:12,200 --> 00:02:18,280 Speaker 1: injunctions will have very serious bite if, but only if, 36 00:02:18,880 --> 00:02:23,440 Speaker 1: the Court makes it difficult for plaintiffs to bring class 37 00:02:23,480 --> 00:02:28,160 Speaker 1: actions and makes it difficult for states to sue for 38 00:02:28,639 --> 00:02:35,200 Speaker 1: statewide injunctions. Those are two potential workarounds, neither of which 39 00:02:35,560 --> 00:02:40,600 Speaker 1: the majority directly addressed is but both of which, just 40 00:02:40,639 --> 00:02:45,440 Speaker 1: as Theleto and his concurrence suggests, should be only available 41 00:02:45,880 --> 00:02:49,840 Speaker 1: under a heightened standard of sorts. So what remains to 42 00:02:49,840 --> 00:02:53,960 Speaker 1: be seen is whether plaintiffs challenging these executive actions. Here 43 00:02:54,040 --> 00:02:58,359 Speaker 1: it was the birthright Citizenship Order, but it applies to 44 00:02:58,440 --> 00:03:02,239 Speaker 1: versally everything, whether they can quickly convert to class actions, 45 00:03:02,480 --> 00:03:05,000 Speaker 1: whether states can bring these cases. If they can, then 46 00:03:05,040 --> 00:03:07,280 Speaker 1: I think this ends up not being such a big deal. 47 00:03:07,639 --> 00:03:10,959 Speaker 2: Getting class action status is a lot more complicated, and 48 00:03:11,080 --> 00:03:13,560 Speaker 2: I think, you know, we've seen just in the last 49 00:03:13,600 --> 00:03:17,840 Speaker 2: few days how confusing it is for the lower courts 50 00:03:17,880 --> 00:03:19,399 Speaker 2: to parse through this. 51 00:03:20,200 --> 00:03:23,440 Speaker 1: I think that's right. The Supreme Court could have, and 52 00:03:23,480 --> 00:03:27,680 Speaker 1: in my view, should have given more guidance on whether 53 00:03:28,040 --> 00:03:30,840 Speaker 1: class actions are available and under what standard. You know. 54 00:03:30,880 --> 00:03:33,600 Speaker 1: One of the things I think is easily overlooked is 55 00:03:34,200 --> 00:03:38,760 Speaker 1: the ruling in the case is not a constitutional holding. 56 00:03:39,200 --> 00:03:43,080 Speaker 1: The court doesn't say that the Constitution forbids this kind 57 00:03:43,080 --> 00:03:46,760 Speaker 1: of equitable relief. What it says is that this power 58 00:03:46,880 --> 00:03:50,440 Speaker 1: was not conferred by statute on the federal courts. Well, 59 00:03:50,440 --> 00:03:53,680 Speaker 1: if that's the case, it's possible that federal Rule of 60 00:03:53,680 --> 00:03:57,280 Speaker 1: Civil Procedure twenty three, which is the class action provision, 61 00:03:57,920 --> 00:04:01,720 Speaker 1: is empowered by the Rules Enabling Act that that does 62 00:04:01,840 --> 00:04:04,600 Speaker 1: confer this power, and that would be fully consistent. It 63 00:04:04,640 --> 00:04:07,400 Speaker 1: would just lead to, you know, the availability of similar 64 00:04:07,440 --> 00:04:09,000 Speaker 1: relief under a different mechanism. 65 00:04:09,400 --> 00:04:12,080 Speaker 2: Why is the Court allowing this rule to be applied 66 00:04:12,120 --> 00:04:16,800 Speaker 2: retroactively because now President Trump says that the administration is 67 00:04:16,800 --> 00:04:20,480 Speaker 2: going to move to lift holds that judges have placed 68 00:04:20,480 --> 00:04:23,520 Speaker 2: on a number of his policies. He mentioned fights over 69 00:04:23,600 --> 00:04:27,880 Speaker 2: refugee resettlement, federal spending, and sanctuary city. So you know, 70 00:04:27,920 --> 00:04:29,560 Speaker 2: it's going to open up a can of worms. 71 00:04:30,200 --> 00:04:32,400 Speaker 1: Oh, I think that's right. I mean, I think this 72 00:04:32,440 --> 00:04:35,800 Speaker 1: is in some ways the basic problem with the Supreme 73 00:04:35,839 --> 00:04:39,680 Speaker 1: Court these days, which is it's treating the Trump administration 74 00:04:40,320 --> 00:04:44,680 Speaker 1: like a normal administration rather than one that is committed 75 00:04:44,760 --> 00:04:47,039 Speaker 1: to sort of pushing the edge of the envelope and 76 00:04:47,040 --> 00:04:50,240 Speaker 1: getting away with whatever it can. And so, you know, 77 00:04:50,320 --> 00:04:52,880 Speaker 1: if you were thinking about the system as a whole 78 00:04:52,880 --> 00:04:55,440 Speaker 1: and what's good for the rule of law, you would 79 00:04:55,440 --> 00:04:58,360 Speaker 1: have been much clearer of your guidance and in what 80 00:04:58,400 --> 00:05:00,400 Speaker 1: you're allowing and not allowing justice. 81 00:05:00,400 --> 00:05:03,200 Speaker 2: Sonya Sotomayor, in one of her descents, said the Court 82 00:05:03,400 --> 00:05:08,520 Speaker 2: was rewarding lawlessness because the Trump administration has repeatedly, either 83 00:05:08,680 --> 00:05:14,080 Speaker 2: explicitly or not so explicitly, ignored court orders, particularly in 84 00:05:14,080 --> 00:05:16,480 Speaker 2: the cases of immigration orders. 85 00:05:16,920 --> 00:05:19,240 Speaker 1: I mean, I think she is exactly right. That it's 86 00:05:19,279 --> 00:05:21,680 Speaker 1: one thing to say, as the Court has said in 87 00:05:21,720 --> 00:05:23,920 Speaker 1: some of these cases, well, we think the lower courts 88 00:05:23,960 --> 00:05:27,400 Speaker 1: went too far in issuing this order. That doesn't mean 89 00:05:27,480 --> 00:05:31,080 Speaker 1: that the administration was permitted to violate the order while 90 00:05:31,120 --> 00:05:34,359 Speaker 1: it was in force. The normal rule is, if you 91 00:05:34,360 --> 00:05:37,720 Speaker 1: don't like a court order, you appeal it, but unless 92 00:05:37,760 --> 00:05:39,800 Speaker 1: you get a stay of that order, and until you 93 00:05:39,800 --> 00:05:41,520 Speaker 1: get a stay of that order, you have to comply 94 00:05:41,600 --> 00:05:41,920 Speaker 1: with it. 95 00:05:42,640 --> 00:05:46,320 Speaker 2: Often the Chief Justice is the one who writes the 96 00:05:46,320 --> 00:05:50,360 Speaker 2: majority opinion in the biggest cases of the term. What 97 00:05:50,480 --> 00:05:54,039 Speaker 2: do you think he chose the second most junior Justice, 98 00:05:54,360 --> 00:05:57,920 Speaker 2: Amy Cony Barrett, to write this majority Well, I. 99 00:05:57,880 --> 00:06:02,599 Speaker 1: Think there's a little bit of sort of doctrinal favoritism 100 00:06:02,600 --> 00:06:07,840 Speaker 1: going on here. So the decision in Trump Vicasa relies 101 00:06:08,440 --> 00:06:12,600 Speaker 1: on a precedent called Group of Mechicano, which was written 102 00:06:12,640 --> 00:06:15,480 Speaker 1: by Justice Scalia, who was, of course the justice for 103 00:06:15,560 --> 00:06:19,000 Speaker 1: whom Justice Barrett clerked, and she sort of sees herself 104 00:06:19,000 --> 00:06:21,440 Speaker 1: in many ways as trying to carry out his legacy. 105 00:06:22,000 --> 00:06:26,480 Speaker 1: So I think she was very much interested in applying 106 00:06:27,400 --> 00:06:31,840 Speaker 1: Justice Scalia's view, which was that courts of equity have 107 00:06:31,920 --> 00:06:34,760 Speaker 1: only the equity powers that they had in seventeen eighty 108 00:06:34,880 --> 00:06:36,760 Speaker 1: nine of you, which, by the way, I think is 109 00:06:37,000 --> 00:06:40,599 Speaker 1: somewhat far fetched, but that is the president, and so 110 00:06:40,920 --> 00:06:43,760 Speaker 1: it sort of fell into her wheelhouse. It turns out 111 00:06:44,000 --> 00:06:46,479 Speaker 1: it's a very important case, but I think it was 112 00:06:46,520 --> 00:06:49,919 Speaker 1: given to her because it was seen as falling within 113 00:06:50,000 --> 00:06:53,600 Speaker 1: her area of some special expertise and interest. 114 00:06:54,040 --> 00:06:57,280 Speaker 2: Let's turn out to a decision that has implications for 115 00:06:57,520 --> 00:07:01,880 Speaker 2: transgender youth in more than half the state. The Supreme Court, 116 00:07:02,000 --> 00:07:06,520 Speaker 2: in another six to three decision down ideological lines, upheld 117 00:07:06,560 --> 00:07:12,640 Speaker 2: Tennessee's ban on gender affirming care for transgender miners. Transgender 118 00:07:12,720 --> 00:07:17,720 Speaker 2: advocates say the decision is devastating for LGBTQ youth and 119 00:07:17,800 --> 00:07:21,560 Speaker 2: their families in the twenty seven states that have similar bands. 120 00:07:21,920 --> 00:07:25,240 Speaker 2: Here's Kelly Robinson, the president of the Human Rights Campaign. 121 00:07:26,080 --> 00:07:29,920 Speaker 3: You're gonna have families. Families have been in states that 122 00:07:29,960 --> 00:07:32,040 Speaker 3: they live in for generations. I know family has been 123 00:07:32,320 --> 00:07:35,520 Speaker 3: in Arizona for generations and generations they are Arizonas. They're 124 00:07:35,560 --> 00:07:39,200 Speaker 3: gonna have to leave their states just to get access 125 00:07:39,240 --> 00:07:40,480 Speaker 3: to care for their kids. 126 00:07:41,240 --> 00:07:45,280 Speaker 2: In Justice Sodo Mayor's dissent for the Liberals, she said 127 00:07:45,280 --> 00:07:48,760 Speaker 2: this decision will open the door to more state discrimination 128 00:07:48,880 --> 00:07:54,000 Speaker 2: against trans tenes and authorize, in her words, untold harm 129 00:07:54,120 --> 00:07:57,320 Speaker 2: to these families. Mike, the issue here was whether the 130 00:07:57,400 --> 00:07:59,960 Speaker 2: law violated the equal protection claw. 131 00:08:00,720 --> 00:08:03,840 Speaker 1: Yeah, that's right. The underlying litigation raised a number of 132 00:08:03,840 --> 00:08:09,800 Speaker 1: other questions, including whether this violated the bodily autonomy or 133 00:08:09,800 --> 00:08:14,960 Speaker 1: substantial processed rights of the miners, the rights of parents 134 00:08:15,080 --> 00:08:18,400 Speaker 1: to make medical decisions for their children. But as it 135 00:08:18,440 --> 00:08:21,280 Speaker 1: came to the Supreme Court, the only issue was whether 136 00:08:21,320 --> 00:08:25,360 Speaker 1: this was a violation of equal protection, and the Court, 137 00:08:25,640 --> 00:08:28,560 Speaker 1: in a sense I wouldn't say duck that issue, but 138 00:08:28,680 --> 00:08:31,680 Speaker 1: sort of mooted it by saying, well, there isn't a 139 00:08:32,200 --> 00:08:37,120 Speaker 1: sex based classification or even a transgender identity based classification 140 00:08:37,520 --> 00:08:41,520 Speaker 1: at issue here, though we don't have to apply the 141 00:08:42,000 --> 00:08:46,960 Speaker 1: intermediate scrutiny that would normally apply to such laws, and 142 00:08:47,040 --> 00:08:49,240 Speaker 1: therefore we all only have to say whether it's rational. 143 00:08:49,280 --> 00:08:51,600 Speaker 1: And of course states get to make all sorts of 144 00:08:51,920 --> 00:08:54,760 Speaker 1: medical judgments, and you subject those tor rational basis scrutiny, 145 00:08:54,800 --> 00:08:58,679 Speaker 1: they're almost always going to survive. So in a sense, 146 00:08:58,960 --> 00:09:04,559 Speaker 1: the case doesn't tell us that much about the status 147 00:09:04,600 --> 00:09:08,160 Speaker 1: of discrimination on the basis of transgender status under the 148 00:09:08,200 --> 00:09:11,040 Speaker 1: constitution going forward, because the Court said, well, we don't 149 00:09:11,080 --> 00:09:15,080 Speaker 1: have to address that here, except that several justices in 150 00:09:15,400 --> 00:09:19,680 Speaker 1: concurring opinions didn't address that and said, even if it 151 00:09:19,760 --> 00:09:25,280 Speaker 1: is transgender based discrimination, that's okay because that kind of 152 00:09:25,320 --> 00:09:28,960 Speaker 1: discrimination doesn't trigger any height and scrutiny. They didn't say 153 00:09:28,960 --> 00:09:31,800 Speaker 1: that about sex. Last. What they said there was that 154 00:09:32,200 --> 00:09:35,760 Speaker 1: it's not sex based discrimination. And in that sense, those 155 00:09:35,800 --> 00:09:40,640 Speaker 1: concurring justices differed with respect to their constitutional analysis from 156 00:09:40,679 --> 00:09:43,400 Speaker 1: what the Court said a number of years ago. As 157 00:09:43,400 --> 00:09:48,120 Speaker 1: a matter of statutory interpretation in employment discrimination cases. 158 00:09:48,760 --> 00:09:53,040 Speaker 2: I mean, the same drugs that Tennessee bans for the 159 00:09:53,080 --> 00:09:57,439 Speaker 2: purpose of gender firming care for transitioning minors are allowed 160 00:09:57,800 --> 00:10:02,200 Speaker 2: for a number of other purposes in non transminers. How 161 00:10:02,240 --> 00:10:04,559 Speaker 2: do they get away from saying that's not an equal 162 00:10:04,640 --> 00:10:06,520 Speaker 2: protection violation. 163 00:10:07,760 --> 00:10:10,839 Speaker 1: So the plaintiffs and just the start of my ority descent, 164 00:10:10,960 --> 00:10:13,360 Speaker 1: I think, are very clear. Look, if a boy wants 165 00:10:13,440 --> 00:10:17,600 Speaker 1: to take this drug to give himself facial hair, you 166 00:10:17,720 --> 00:10:22,320 Speaker 1: allow it. If a transgender boy who's assigned female at 167 00:10:22,320 --> 00:10:25,160 Speaker 1: birth wants to take it, you disallow. It's the same effect. 168 00:10:25,160 --> 00:10:28,920 Speaker 1: How could that be anything other than sex discrimination? And 169 00:10:29,200 --> 00:10:33,120 Speaker 1: what the court says, is, well, it's not the same 170 00:10:33,480 --> 00:10:38,840 Speaker 1: treatment if it's being prescribed for a different condition. In 171 00:10:39,440 --> 00:10:43,120 Speaker 1: the boy who's taking this to give himself facial hair, 172 00:10:43,679 --> 00:10:48,400 Speaker 1: it's being prescribed because he has low testosterone. In the 173 00:10:48,559 --> 00:10:52,320 Speaker 1: transgender boy who's assigned female at birth, it's being given 174 00:10:52,679 --> 00:10:58,160 Speaker 1: to facilitate sex transition, and that, of course, says, is 175 00:10:58,200 --> 00:11:02,240 Speaker 1: a different treatment. Now they announce to something like, you know, 176 00:11:02,400 --> 00:11:06,359 Speaker 1: different off label uses, so that something might be approved 177 00:11:06,520 --> 00:11:10,840 Speaker 1: for as a treatment for hypertension, and people discover henus 178 00:11:10,920 --> 00:11:15,080 Speaker 1: also can pure baldness mormally. If a drug is approved 179 00:11:15,080 --> 00:11:17,320 Speaker 1: for one purpose, it can be prescribed off label, but 180 00:11:17,360 --> 00:11:21,360 Speaker 1: states can forbid certain off label uses if they think 181 00:11:21,480 --> 00:11:24,719 Speaker 1: the risks and benefits are different. So that's the analogy 182 00:11:25,200 --> 00:11:29,120 Speaker 1: that the majority draws. The difficulty with that, as I 183 00:11:29,160 --> 00:11:32,439 Speaker 1: think just the studlement are convincingly, says in dissentis well, here, 184 00:11:32,600 --> 00:11:36,240 Speaker 1: what makes this a different treatment is simply the sex 185 00:11:36,240 --> 00:11:39,880 Speaker 1: assigned birth of the person taking it, And you're sort 186 00:11:39,880 --> 00:11:43,160 Speaker 1: of building the lily or double counting by working that in. 187 00:11:43,760 --> 00:11:47,360 Speaker 2: So the three conservative justices you were referring to who 188 00:11:47,440 --> 00:11:53,040 Speaker 2: wrote concurrences, would they reject intermediate scrutiny for any anti 189 00:11:53,120 --> 00:11:53,880 Speaker 2: trans laws. 190 00:11:54,559 --> 00:11:57,079 Speaker 1: I think that's right. I mean Justice Barrett actually is 191 00:11:57,120 --> 00:12:00,360 Speaker 1: the one who writes most extensively on this, and she says, Look, 192 00:12:00,400 --> 00:12:05,520 Speaker 1: we have criteria for deciding whether something is a suspect 193 00:12:05,520 --> 00:12:11,200 Speaker 1: of semi susie classification, and transgender status doesn't meet those criteria. Now, 194 00:12:11,320 --> 00:12:13,320 Speaker 1: I think she applies them a little bit strangely. One 195 00:12:13,360 --> 00:12:15,200 Speaker 1: of the things she says is that in order for 196 00:12:15,240 --> 00:12:18,720 Speaker 1: something to be so called immutable characteristic, it has to 197 00:12:18,800 --> 00:12:24,160 Speaker 1: be identifiable at birth, and transgender status doesn't emerge until later. Well, 198 00:12:24,360 --> 00:12:27,840 Speaker 1: that's a kind of backwards analysis, because of course, the 199 00:12:27,880 --> 00:12:32,280 Speaker 1: whole point of someone wanting to transition to address their 200 00:12:32,360 --> 00:12:36,720 Speaker 1: gender dyspharrior or other mismatch between their experience of themselves 201 00:12:36,880 --> 00:12:40,880 Speaker 1: and the sex assigned at birth is that what they 202 00:12:40,880 --> 00:12:45,520 Speaker 1: were treated as at birth was you know, not accurate, 203 00:12:45,840 --> 00:12:48,480 Speaker 1: and so it's you know, it's a very odd, odd 204 00:12:48,520 --> 00:12:51,200 Speaker 1: thing to say, Well, because when you were an infant 205 00:12:51,440 --> 00:12:55,440 Speaker 1: you didn't realize or other people didn't realize, that you 206 00:12:55,559 --> 00:12:58,600 Speaker 1: were a male inside of a female body, or vice versa, 207 00:12:58,920 --> 00:13:01,840 Speaker 1: then that's not real in some sense. So there's a 208 00:13:01,880 --> 00:13:04,400 Speaker 1: way in which it's a kind of, you know, denial 209 00:13:04,679 --> 00:13:07,880 Speaker 1: of the existence of transgender persons at all. I mean, 210 00:13:07,920 --> 00:13:10,280 Speaker 1: she doesn't say that, but I think that's the logical 211 00:13:10,280 --> 00:13:12,359 Speaker 1: implication of that particular criterion. 212 00:13:12,800 --> 00:13:18,120 Speaker 2: Well, the court also allowed the Trump administration to oust 213 00:13:18,760 --> 00:13:22,880 Speaker 2: transgender military on the emergency docket without even a full 214 00:13:22,960 --> 00:13:27,760 Speaker 2: hearing on the merits. It seems like transgender rights are 215 00:13:27,800 --> 00:13:29,160 Speaker 2: not in favor at the Court. 216 00:13:29,920 --> 00:13:32,480 Speaker 1: I think that's right now. Of first, we don't know 217 00:13:33,080 --> 00:13:37,480 Speaker 1: what the basis for that decision was exactly, because it 218 00:13:37,559 --> 00:13:41,280 Speaker 1: was on the emergency docket without explanation. We do know 219 00:13:42,040 --> 00:13:49,360 Speaker 1: that there is traditionally greater difference shown to the political branches, 220 00:13:49,720 --> 00:13:55,160 Speaker 1: both Congress and the executive with respect to military matters, 221 00:13:55,440 --> 00:14:00,520 Speaker 1: and so it would be possible to say that gender 222 00:14:00,640 --> 00:14:07,480 Speaker 1: status discrimination generally triggers intermediate scrutiny, but not with respect 223 00:14:07,520 --> 00:14:10,920 Speaker 1: to who can be in the military. There were some 224 00:14:11,200 --> 00:14:16,959 Speaker 1: cases in the nineteen nineties and early two thousands before 225 00:14:17,400 --> 00:14:21,560 Speaker 1: the abandonment of the so called DNAs don't tell policy, 226 00:14:22,320 --> 00:14:27,560 Speaker 1: in which courts upheld the ban on gays and lesbian 227 00:14:27,640 --> 00:14:31,720 Speaker 1: serving openly in the military, even while saying they weren't 228 00:14:31,760 --> 00:14:37,160 Speaker 1: deciding the broader question of what kind of scrutiny sexual 229 00:14:37,200 --> 00:14:40,520 Speaker 1: orientation discrimination gets outside of the military context. 230 00:14:41,640 --> 00:14:45,720 Speaker 2: Can we read anything into the Supreme Court throughout appellate 231 00:14:45,800 --> 00:14:50,280 Speaker 2: rulings in favor of transgender people in clashes over healthcare 232 00:14:50,320 --> 00:14:53,400 Speaker 2: and birth certificates in four states and ordered the judges 233 00:14:53,440 --> 00:14:55,720 Speaker 2: to re examine the cases in the wake of this 234 00:14:55,800 --> 00:14:58,840 Speaker 2: Scrimati decision. Do we read anything into that? 235 00:14:59,440 --> 00:15:01,440 Speaker 1: Oh? Yes, so I was probably to be a little 236 00:15:01,440 --> 00:15:03,840 Speaker 1: bit hopeful there to say that, you know, as a 237 00:15:03,880 --> 00:15:08,120 Speaker 1: matter of the official holdings, the Court has not or 238 00:15:08,240 --> 00:15:12,760 Speaker 1: closed the possibility that sometime in the future it could 239 00:15:12,840 --> 00:15:17,800 Speaker 1: say transgender status discrimination is sort of presumptively invalid in 240 00:15:17,840 --> 00:15:22,000 Speaker 1: the same way that sex discrimination is. But reading the 241 00:15:22,080 --> 00:15:24,800 Speaker 1: tea leaves, I think it's pretty clear that that's not 242 00:15:24,960 --> 00:15:28,120 Speaker 1: the direction that this court is going. And another way 243 00:15:28,120 --> 00:15:32,120 Speaker 1: to put that is that they are going to increasingly 244 00:15:32,200 --> 00:15:35,360 Speaker 1: treat the boss Stock decision, which is the case that 245 00:15:35,480 --> 00:15:40,440 Speaker 1: held that sexual orientation and transgender status discrimination or sex 246 00:15:40,480 --> 00:15:43,480 Speaker 1: discrimination for purposes of Title seven. They're going to treat 247 00:15:43,560 --> 00:15:46,320 Speaker 1: that decision as a kind of outlier, the case that 248 00:15:46,360 --> 00:15:51,320 Speaker 1: gets distinguished, and they specifically say INSTAGRAMMETI. While we're not 249 00:15:51,440 --> 00:15:54,640 Speaker 1: addressing this boss Stock analogy Title seven might be different. 250 00:15:54,720 --> 00:15:57,560 Speaker 1: So I think they're teeing that up and so cutting back, 251 00:15:57,680 --> 00:16:01,320 Speaker 1: you know, the anti trends back that we've been seeing 252 00:16:01,720 --> 00:16:04,880 Speaker 1: in the political realm, I think is now flowering in 253 00:16:04,880 --> 00:16:06,040 Speaker 1: the Supreme Court as well. 254 00:16:06,200 --> 00:16:09,000 Speaker 2: Coming up next, we'll continue this discussion of the Supreme 255 00:16:09,080 --> 00:16:14,480 Speaker 2: Court's term. The Court once again bolsters religious rights. I'm 256 00:16:14,560 --> 00:16:17,600 Speaker 2: June Gross. When you're listening to Bloomberg, I've been talking 257 00:16:17,600 --> 00:16:21,480 Speaker 2: with constitutional law professor Michael Dorf of Cornell Law School. 258 00:16:21,800 --> 00:16:25,240 Speaker 2: I got the Supreme Court's term. There was another case 259 00:16:25,440 --> 00:16:29,880 Speaker 2: involving LGBTQ rights, and in a six to three ruling, 260 00:16:30,200 --> 00:16:33,720 Speaker 2: once again with the conservative justices in the majority and 261 00:16:33,760 --> 00:16:37,320 Speaker 2: the liberal justices in the minority, the Court rule that 262 00:16:37,480 --> 00:16:40,960 Speaker 2: public school parents have a right to opt out of 263 00:16:41,080 --> 00:16:46,160 Speaker 2: classroom lessons that intrude on their religious beliefs, and in 264 00:16:46,200 --> 00:16:49,880 Speaker 2: this case it was because the lessons involved the reading 265 00:16:50,000 --> 00:16:58,520 Speaker 2: of LGBTQ themed story books. Religion versus issues involving LGBTQ rights, 266 00:16:58,920 --> 00:17:00,880 Speaker 2: Religion always wins Roberts Court. 267 00:17:01,560 --> 00:17:03,120 Speaker 1: Yeah, that's right. I mean, you can think of this 268 00:17:03,400 --> 00:17:07,600 Speaker 1: as sort of the finale, for now of a trilogy 269 00:17:07,800 --> 00:17:11,119 Speaker 1: that began with the Masterpiece cake shop case continued with 270 00:17:11,200 --> 00:17:14,439 Speaker 1: the three or three creative case, and now here we 271 00:17:14,600 --> 00:17:20,520 Speaker 1: have a similar situation where the religious claim wins out 272 00:17:20,640 --> 00:17:24,719 Speaker 1: as against the effort to in this case have an 273 00:17:24,880 --> 00:17:32,680 Speaker 1: LGBTQ plus inclusive curriculum. To my mind, what's so sort 274 00:17:32,720 --> 00:17:37,800 Speaker 1: of surprising about this case is how quickly and easily 275 00:17:37,960 --> 00:17:44,159 Speaker 1: the court dismisses the administrative burden that it's placing on 276 00:17:44,840 --> 00:17:48,840 Speaker 1: school districts. Right what the court says is, if there 277 00:17:48,920 --> 00:17:55,000 Speaker 1: is a burden on religion, then the government school district 278 00:17:55,280 --> 00:18:00,840 Speaker 1: has to give an exemption unless it can satisfy high scrutiny. 279 00:18:01,200 --> 00:18:05,520 Speaker 1: And the burden on religion here is, as the descend 280 00:18:05,640 --> 00:18:10,159 Speaker 1: points out, that kids are being exposed to ideas that 281 00:18:10,320 --> 00:18:15,000 Speaker 1: are contrary to what their parents want to teach them 282 00:18:15,040 --> 00:18:17,840 Speaker 1: as a matter of religious faith. And if you just 283 00:18:17,880 --> 00:18:20,840 Speaker 1: think about that for a moment, you quickly realize, well, 284 00:18:20,880 --> 00:18:22,640 Speaker 1: that could cover a lot of things. You know, there 285 00:18:22,640 --> 00:18:25,320 Speaker 1: are great many people in this country who, as a 286 00:18:25,320 --> 00:18:29,760 Speaker 1: matter of religious faith, don't believe that humans descended from 287 00:18:29,960 --> 00:18:34,719 Speaker 1: other animals through revolution. Does that mean that religious parents 288 00:18:34,720 --> 00:18:39,040 Speaker 1: can opt their kids out of biology? People believe in 289 00:18:39,080 --> 00:18:43,600 Speaker 1: the millions that the earth is only six thousand years old, 290 00:18:43,680 --> 00:18:47,040 Speaker 1: even though you know geology suggests that it's four and 291 00:18:47,080 --> 00:18:49,920 Speaker 1: a half billion years old. Can parents op their kids 292 00:18:49,960 --> 00:18:54,400 Speaker 1: out of geology? I think those issues are probably unlikely 293 00:18:54,440 --> 00:18:58,280 Speaker 1: to arise in large numbers, But the real impact will 294 00:18:58,320 --> 00:19:02,520 Speaker 1: be to these concerned efforts to have parents object to 295 00:19:03,440 --> 00:19:09,240 Speaker 1: what they see as you woke curricula on religious grounds, 296 00:19:09,280 --> 00:19:12,800 Speaker 1: and because the administrative burden is so great, the school 297 00:19:12,800 --> 00:19:15,760 Speaker 1: district might conclude, well, you know what, it's just easier 298 00:19:16,160 --> 00:19:18,960 Speaker 1: not to teach this stuff at all. And that is 299 00:19:19,000 --> 00:19:21,679 Speaker 1: the point that the descent makes, I think very effectively. 300 00:19:22,480 --> 00:19:26,600 Speaker 2: You mentioned the trilogy of cases, and this reminds me 301 00:19:26,800 --> 00:19:30,800 Speaker 2: of the three to h three Creative case, which involved 302 00:19:30,880 --> 00:19:35,920 Speaker 2: a website designer who didn't want to design websites for 303 00:19:36,000 --> 00:19:40,560 Speaker 2: gay marriages. However, she'd never been asked to. And here 304 00:19:41,200 --> 00:19:44,520 Speaker 2: you have a case where the curriculum for using these 305 00:19:44,720 --> 00:19:49,119 Speaker 2: LGBTQ books isn't even established yet it seems like the 306 00:19:49,119 --> 00:19:54,200 Speaker 2: court is just jumping in before there's a real controversy. 307 00:19:54,240 --> 00:19:56,880 Speaker 1: I think a fair criticism of the court would be 308 00:19:57,400 --> 00:20:02,560 Speaker 1: that in these cases where there are a religious objections 309 00:20:03,200 --> 00:20:07,960 Speaker 1: to a rights, trans rights, etc. That are statutory the 310 00:20:08,000 --> 00:20:13,359 Speaker 1: Court's standing rules seem to be flexible. You know, you 311 00:20:13,400 --> 00:20:16,440 Speaker 1: can make a case that there is standing both in 312 00:20:16,480 --> 00:20:20,040 Speaker 1: three H three creative and here. But again, some of 313 00:20:20,080 --> 00:20:24,240 Speaker 1: the same justices who might be sticklers in other contexts 314 00:20:24,240 --> 00:20:27,000 Speaker 1: in this context tend to say, well, of course you 315 00:20:27,000 --> 00:20:30,159 Speaker 1: can challenge this policy, and the Court. 316 00:20:29,920 --> 00:20:33,600 Speaker 2: Is not stepping away from these issues. Next term, it's 317 00:20:33,680 --> 00:20:38,640 Speaker 2: going to hear a challenge to Colorado's ban on conversion therapy, 318 00:20:38,840 --> 00:20:42,560 Speaker 2: and the challenge is from a licensed counselor who says 319 00:20:42,560 --> 00:20:46,240 Speaker 2: she views her work as an outgrowth of her Christian faith. 320 00:20:46,600 --> 00:20:48,800 Speaker 2: So I think we're going to see the same result 321 00:20:49,040 --> 00:20:49,680 Speaker 2: in that case. 322 00:20:49,760 --> 00:20:52,600 Speaker 4: Maybe I'm jumping the gun, but you no, I don't 323 00:20:52,600 --> 00:20:53,200 Speaker 4: think you are. 324 00:20:53,280 --> 00:20:55,400 Speaker 1: And you know, if you want to sort of juxtapose 325 00:20:55,440 --> 00:20:58,920 Speaker 1: that with Scrimetti, Right, So, in Scrimmetti, the court is 326 00:20:58,960 --> 00:21:06,959 Speaker 1: all about giving deference to Tennessee's ostensibly medical determination that 327 00:21:07,400 --> 00:21:11,439 Speaker 1: it's not in the interests of miners and they're not 328 00:21:12,040 --> 00:21:15,439 Speaker 1: sort of fully able to give and form consent to 329 00:21:15,720 --> 00:21:19,960 Speaker 1: have puberty blockers and hormone therapy. Right. I don't think 330 00:21:20,000 --> 00:21:23,000 Speaker 1: you'll see the same kind of deference given to Colorado 331 00:21:23,680 --> 00:21:29,760 Speaker 1: in its judgment that this kind of therapy is not 332 00:21:30,040 --> 00:21:32,199 Speaker 1: in the interests of miners. 333 00:21:33,359 --> 00:21:37,440 Speaker 2: There were three Second Amendment cases, and the justices upheld 334 00:21:37,480 --> 00:21:41,840 Speaker 2: federal regulations for build at home ghost gun kits, refuse 335 00:21:41,920 --> 00:21:46,359 Speaker 2: to give gun manufacturers broad immunity from civil suits, and 336 00:21:46,440 --> 00:21:51,800 Speaker 2: turned away constitutional challenges to state bans on assault weapons 337 00:21:51,840 --> 00:21:56,280 Speaker 2: and high capacity magazines. Does this signal that the court 338 00:21:56,400 --> 00:22:00,200 Speaker 2: won't eviscerate gun control measures or is it too soon 339 00:22:00,280 --> 00:22:00,600 Speaker 2: to tell? 340 00:22:01,720 --> 00:22:04,400 Speaker 1: I think it's a little of both. The Vanderstock case, 341 00:22:04,400 --> 00:22:09,359 Speaker 1: that's the ghost guns case there, the statute is pretty specific, 342 00:22:09,480 --> 00:22:12,399 Speaker 1: and you look at that versus the bump stock case 343 00:22:12,560 --> 00:22:15,240 Speaker 1: that they had where they came out the other way. 344 00:22:15,680 --> 00:22:19,040 Speaker 1: You can just see those as a statutory construction. You know. 345 00:22:19,119 --> 00:22:22,520 Speaker 1: The same thing goes for Smith and Weston. I mean, 346 00:22:22,560 --> 00:22:25,960 Speaker 1: after all, Mexico did lose that case, so they're unable 347 00:22:26,040 --> 00:22:28,640 Speaker 1: to bring the lawsuits. I don't count that one as 348 00:22:28,640 --> 00:22:33,840 Speaker 1: a sort of pure victory for gun regulation. And then Henson, 349 00:22:33,920 --> 00:22:38,119 Speaker 1: which is the case where they denied Zert from the 350 00:22:38,160 --> 00:22:44,640 Speaker 1: District of Columbia. Curt denial doesn't set a precedent, and 351 00:22:44,880 --> 00:22:47,399 Speaker 1: you can make an argument I think that I think 352 00:22:47,440 --> 00:22:50,679 Speaker 1: they're the case involved a limit of ten rounds on 353 00:22:50,760 --> 00:22:53,960 Speaker 1: a gun. You can make an argument that the gun 354 00:22:53,960 --> 00:22:55,920 Speaker 1: that is in common use, that's the term for Second 355 00:22:55,920 --> 00:22:59,960 Speaker 1: Amendment purposes, is the handgun. And then you ask, when, 356 00:23:00,000 --> 00:23:04,199 Speaker 1: how is it consistent with the history of regulation of 357 00:23:04,480 --> 00:23:08,199 Speaker 1: guns to limit them to ten rounds. Well, you're not 358 00:23:08,200 --> 00:23:11,400 Speaker 1: going to find guns that were capable of firing more 359 00:23:11,440 --> 00:23:13,960 Speaker 1: than ten rounds at the founding, So there's a way 360 00:23:13,960 --> 00:23:16,320 Speaker 1: to get to this result. But I think it's consistent 361 00:23:16,359 --> 00:23:19,720 Speaker 1: with what they've said before, and I think it's far 362 00:23:19,800 --> 00:23:22,240 Speaker 1: too soon to say that the Court is sort of 363 00:23:22,320 --> 00:23:27,040 Speaker 1: easing up on the Second Amendment revolution that it began 364 00:23:27,400 --> 00:23:29,240 Speaker 1: in two thousand and eight with the Heller case. 365 00:23:29,640 --> 00:23:32,000 Speaker 2: Okay, stay with me, Mike. Coming up next on the 366 00:23:32,040 --> 00:23:35,959 Speaker 2: Bloomberg Law Show, I'll continue this conversation with Professor Michael 367 00:23:36,040 --> 00:23:38,840 Speaker 2: Dorf of Cornell Law School. We're going to take a 368 00:23:38,840 --> 00:23:42,840 Speaker 2: look at the Court's emergency docket and how the justices 369 00:23:42,920 --> 00:23:46,040 Speaker 2: gave Trump some or all of what he asked for. 370 00:23:46,359 --> 00:23:49,879 Speaker 2: I'm June Grosso and you're listening to Bloomberg. The clear 371 00:23:49,920 --> 00:23:53,920 Speaker 2: winner of the Supreme Court's term was President Donald Trump. 372 00:23:54,440 --> 00:23:58,760 Speaker 2: The Court's conservative super majority sided with Trump on both 373 00:23:58,840 --> 00:24:04,560 Speaker 2: broad legal quests and an unprecedented barrage of emergency requests 374 00:24:04,880 --> 00:24:08,520 Speaker 2: to let his policies take effect right away. On the 375 00:24:08,560 --> 00:24:13,159 Speaker 2: emergency docket, the court allowed Trump to discharge transgender people 376 00:24:13,200 --> 00:24:17,720 Speaker 2: from the military, fire top officials at government agencies, and 377 00:24:17,840 --> 00:24:22,600 Speaker 2: open hundreds of thousands of migrants to deportation. The conservative 378 00:24:22,840 --> 00:24:27,879 Speaker 2: justice is repeatedly reinstated Trump policies found by lower courts 379 00:24:27,920 --> 00:24:31,359 Speaker 2: to be illegal, and it undercut judges who said the 380 00:24:31,440 --> 00:24:35,640 Speaker 2: administration had violated their orders. I've been talking to Professor 381 00:24:35,720 --> 00:24:39,280 Speaker 2: Michael Dorf of Cornell Law School. How do you read 382 00:24:39,680 --> 00:24:42,320 Speaker 2: his wins on the emergency docket? 383 00:24:42,760 --> 00:24:46,120 Speaker 1: So I guess i'd say a few things. First. One 384 00:24:46,119 --> 00:24:47,840 Speaker 1: of the things we didn't talk about when we're about 385 00:24:47,840 --> 00:24:52,840 Speaker 1: Trump against KASA is Justice Kavanaugh's concurrence, in which he says, well, 386 00:24:52,880 --> 00:24:57,840 Speaker 1: the solution to the problem of universal injunctions is for 387 00:24:57,920 --> 00:25:00,840 Speaker 1: us to get these cases up here fast and then 388 00:25:00,880 --> 00:25:03,840 Speaker 1: for us to decide them, because we can lay down 389 00:25:03,880 --> 00:25:08,439 Speaker 1: the law that will be binding nationally. Well, one of 390 00:25:08,440 --> 00:25:11,280 Speaker 1: the odd things is, if that's true, how come they're 391 00:25:11,320 --> 00:25:13,360 Speaker 1: not doing that that in a lot of these cases, 392 00:25:13,640 --> 00:25:17,480 Speaker 1: they're not actually saying, well, here's the rule and we're 393 00:25:17,480 --> 00:25:19,919 Speaker 1: deciding on the emergency docket. They're just sort of, you know, 394 00:25:20,680 --> 00:25:24,520 Speaker 1: reversing the lower courts, giving either no guidance or very 395 00:25:24,760 --> 00:25:27,080 Speaker 1: scant guide, you know. And that's to say nothing of 396 00:25:27,119 --> 00:25:31,399 Speaker 1: whether Justice Kavanaugh's proposed solution makes any sense, given that, 397 00:25:32,040 --> 00:25:34,359 Speaker 1: you know, putting something on the emergency docket means they 398 00:25:34,359 --> 00:25:37,679 Speaker 1: don't really have that much time to decide the case, 399 00:25:37,960 --> 00:25:40,840 Speaker 1: and they don't have full briefing with full oral argument. 400 00:25:41,200 --> 00:25:44,920 Speaker 1: So you had this remarkable decision where they essentially overrule 401 00:25:45,680 --> 00:25:50,200 Speaker 1: the Humphreys Executor case, which is, you know, a very 402 00:25:50,240 --> 00:25:54,240 Speaker 1: old precedent banding for the proposition that Congress can create 403 00:25:54,359 --> 00:25:58,240 Speaker 1: independent agencies. And you know, Justice Kagan in the sense says, 404 00:25:58,560 --> 00:26:00,880 Speaker 1: what are you doing. You don't even you barely even 405 00:26:00,920 --> 00:26:04,119 Speaker 1: mentioned the case, and you're off ruling it. And we 406 00:26:04,240 --> 00:26:06,919 Speaker 1: haven't had a full briefing in argument on this, and 407 00:26:06,960 --> 00:26:10,600 Speaker 1: you're reversing the lower court for following our established president, 408 00:26:10,640 --> 00:26:13,639 Speaker 1: which we've told them they're supposed to do. So, you know, 409 00:26:13,680 --> 00:26:16,399 Speaker 1: the one remarkable thing about what they're doing on the 410 00:26:16,400 --> 00:26:20,200 Speaker 1: emergency donket is tympally. You know, how much law they're making. 411 00:26:20,240 --> 00:26:23,320 Speaker 1: And now that's not an entirely new phenomenon. They did 412 00:26:23,320 --> 00:26:25,960 Speaker 1: that in a bunch of religion cases during the pandemic, 413 00:26:26,320 --> 00:26:29,000 Speaker 1: and they continued it to do that, but it is 414 00:26:29,160 --> 00:26:31,120 Speaker 1: it is a very strange thing for them to be doing. 415 00:26:32,200 --> 00:26:38,000 Speaker 1: It is striking how different a position the Court is 416 00:26:38,080 --> 00:26:41,919 Speaker 1: staking out from that of the lower court. One of 417 00:26:41,960 --> 00:26:45,360 Speaker 1: the interesting phenomena in this court this year is, if 418 00:26:45,359 --> 00:26:49,800 Speaker 1: you look at the statistics on their plenary docket, they 419 00:26:49,880 --> 00:26:53,200 Speaker 1: reversed the Fifth Circuit, which is the most conservative circuit 420 00:26:53,440 --> 00:26:55,639 Speaker 1: quite a lot. Right, So the Fifth Circuit is getting 421 00:26:55,640 --> 00:26:57,560 Speaker 1: a haw to head of the Supreme Court sort of 422 00:26:57,600 --> 00:27:02,280 Speaker 1: in being very very conservative on their emergency docket. In 423 00:27:02,359 --> 00:27:08,920 Speaker 1: these cases challenging comp administration actions, the Court is basically saying, well, 424 00:27:09,000 --> 00:27:11,359 Speaker 1: the lower courts are too liberal. Now. Part of that, 425 00:27:11,480 --> 00:27:14,760 Speaker 1: I think is forum shopping by funny tips, Right, if 426 00:27:14,760 --> 00:27:17,119 Speaker 1: you're going to challenge your comp administration policy, you're not 427 00:27:17,160 --> 00:27:19,840 Speaker 1: going to go to Judge Kasmiric or one of the 428 00:27:19,880 --> 00:27:24,280 Speaker 1: other judges that Republicans go to to challenge democratic administrations. 429 00:27:24,920 --> 00:27:29,080 Speaker 1: But I think it will also suggests again that this 430 00:27:29,280 --> 00:27:33,520 Speaker 1: Court is, you know, not all that skeptical of a 431 00:27:33,560 --> 00:27:36,760 Speaker 1: lot of what the Trump administration is doing on the merits. 432 00:27:37,200 --> 00:27:40,080 Speaker 2: Yeah, the Fifth Circuit has become what the Ninth Circuit was, 433 00:27:40,200 --> 00:27:45,440 Speaker 2: maybe even more so. In conclusion, how far to the 434 00:27:45,560 --> 00:27:47,679 Speaker 2: right is the court moving? 435 00:27:48,080 --> 00:27:49,520 Speaker 1: I mean, I think the answer to that question is 436 00:27:49,640 --> 00:27:51,919 Speaker 1: very far. I don't think there's any question about that. 437 00:27:52,000 --> 00:27:54,200 Speaker 1: I mean, you know, they did most of the work 438 00:27:54,280 --> 00:27:56,560 Speaker 1: in prior terms. They overturn Roe v. Wade, they got 439 00:27:56,640 --> 00:27:59,560 Speaker 1: rid of the permantive action, the religion cases go very far. 440 00:27:59,640 --> 00:28:02,680 Speaker 1: They invigorated the Second Amendment. So in that sense, their 441 00:28:02,720 --> 00:28:08,520 Speaker 1: work is basically done on what traditional conservatives care about. 442 00:28:09,280 --> 00:28:14,000 Speaker 1: To my mind, the question that is most pressing and 443 00:28:14,080 --> 00:28:17,399 Speaker 1: sort of remains open is not how far to the 444 00:28:17,520 --> 00:28:21,000 Speaker 1: right the Court is moving the law, but how far 445 00:28:21,400 --> 00:28:25,760 Speaker 1: to the sort of maga direction is the court moving 446 00:28:25,800 --> 00:28:29,560 Speaker 1: the law or at least allowing the Trump administration to go. 447 00:28:30,080 --> 00:28:32,879 Speaker 1: You know, a lot of what President Trump and his 448 00:28:32,960 --> 00:28:39,320 Speaker 1: administration are doing doesn't fall within traditional left right boundaries. 449 00:28:39,320 --> 00:28:42,120 Speaker 1: It's just sort of you know, authoritarian, you know, for 450 00:28:42,200 --> 00:28:43,480 Speaker 1: lack of a better term. 451 00:28:44,040 --> 00:28:48,560 Speaker 5: And so it's not surprising to me that, you know, 452 00:28:48,640 --> 00:28:52,720 Speaker 5: if the Trump administration you know, wants to peel back 453 00:28:53,280 --> 00:28:55,200 Speaker 5: transgender rights. 454 00:28:54,960 --> 00:28:58,360 Speaker 1: That conservatives on the Supreme Court would be on board 455 00:28:58,360 --> 00:29:02,959 Speaker 1: with that. What is surprising and I think frankly alarming, 456 00:29:03,680 --> 00:29:08,440 Speaker 1: is the extent to which the Roberts Court is facilitating 457 00:29:08,920 --> 00:29:12,400 Speaker 1: the Trump administration's challenges to the rule of law. So 458 00:29:12,400 --> 00:29:14,840 Speaker 1: what we were talking about a little earlier with defiance 459 00:29:14,880 --> 00:29:19,040 Speaker 1: of court orders and other things that fall outside the 460 00:29:19,120 --> 00:29:23,200 Speaker 1: left right spectrum as we've understood it for the last 461 00:29:23,240 --> 00:29:26,640 Speaker 1: one hundred years or so, and are on a sort 462 00:29:26,640 --> 00:29:29,360 Speaker 1: of democracy and rule of law on the one hand 463 00:29:29,560 --> 00:29:31,560 Speaker 1: versus authoritarianism on the other. 464 00:29:31,880 --> 00:29:33,760 Speaker 2: And over the summer we'll have to keep a close 465 00:29:33,800 --> 00:29:36,880 Speaker 2: eye on the emergency docket, which I'm sure is going 466 00:29:36,960 --> 00:29:40,239 Speaker 2: to be very active. Thanks so much, Michael for your 467 00:29:40,240 --> 00:29:43,720 Speaker 2: analysis and spending all this time with me. That's Professor 468 00:29:43,800 --> 00:29:47,719 Speaker 2: Michael Dwarf of Cornell Law School. In other legal news today, 469 00:29:48,280 --> 00:29:52,480 Speaker 2: the jury in Sean Diddycombe's sex trafficking trial has said 470 00:29:52,480 --> 00:29:55,040 Speaker 2: that it reached a verdict on four of the five 471 00:29:55,200 --> 00:29:58,280 Speaker 2: counts against the hip hop mogul, but could not reach 472 00:29:58,320 --> 00:30:02,600 Speaker 2: a verdict on the top count of racketeering conspiracy. The 473 00:30:02,720 --> 00:30:05,640 Speaker 2: jurors said in a note this afternoon that it was 474 00:30:05,800 --> 00:30:09,880 Speaker 2: unable to reach a unanimous verdict on the racketeering conspiracy 475 00:30:10,040 --> 00:30:14,760 Speaker 2: charge because there were jurors with quote, unpersuadable views on 476 00:30:14,880 --> 00:30:18,720 Speaker 2: both sides. Joining me to discuss what may be happening 477 00:30:18,760 --> 00:30:22,320 Speaker 2: with the jury is former federal prosecutor Robert Mintz, a 478 00:30:22,400 --> 00:30:25,400 Speaker 2: partner Macarter in English. So, Bob, what do you think 479 00:30:25,440 --> 00:30:29,760 Speaker 2: it means that the jurors couldn't reach a unanimous decision 480 00:30:29,840 --> 00:30:30,959 Speaker 2: on the top count. 481 00:30:31,520 --> 00:30:34,400 Speaker 4: It's not surprising that this has been the most difficult 482 00:30:35,000 --> 00:30:38,280 Speaker 4: charge for the jurors to reach an unanimous verdict on. 483 00:30:38,600 --> 00:30:43,480 Speaker 4: The racketeering charge was always the most challenging for prosecutors. 484 00:30:43,800 --> 00:30:48,080 Speaker 4: It requires proof of at least one other person acting 485 00:30:48,120 --> 00:30:52,480 Speaker 4: in conspiracy with mister Colmbs to commit two crimes or 486 00:30:52,520 --> 00:30:57,560 Speaker 4: predicate acts in furtherance of a racketeering enterprise. So it's 487 00:30:57,600 --> 00:31:01,960 Speaker 4: a very complex charge. It's also the most serious charge. 488 00:31:02,080 --> 00:31:04,160 Speaker 4: So it's going to be interesting to see what they 489 00:31:04,240 --> 00:31:06,600 Speaker 4: ultimately do with the charge, whether they are able to 490 00:31:06,600 --> 00:31:10,000 Speaker 4: reach a verdict or whether ultimately they are hung, which 491 00:31:10,000 --> 00:31:12,960 Speaker 4: means they could not get unanimity among jurors on that 492 00:31:13,040 --> 00:31:14,240 Speaker 4: particular charge. 493 00:31:14,440 --> 00:31:17,840 Speaker 2: Yeah, Rather than taking a partial verdict, the judge told 494 00:31:17,920 --> 00:31:22,600 Speaker 2: the jury to continue weighing the remaining charge and deliberations 495 00:31:22,640 --> 00:31:25,280 Speaker 2: are going to continue. Does it seem to you like 496 00:31:25,400 --> 00:31:29,240 Speaker 2: they've reached guilty verdicts on each of the lesser charges. 497 00:31:30,200 --> 00:31:33,760 Speaker 4: Well, it's always difficult when you have news from the 498 00:31:33,840 --> 00:31:36,560 Speaker 4: jury that they've reached a verdict or a partial verdict 499 00:31:36,560 --> 00:31:38,400 Speaker 4: in terms of reading the tea leaves and trying to 500 00:31:38,400 --> 00:31:41,080 Speaker 4: figure out what it means. Here we have a note 501 00:31:41,120 --> 00:31:44,240 Speaker 4: from the jurors saying they've reached a unanimous verdict on 502 00:31:44,360 --> 00:31:46,600 Speaker 4: four out of the five, and that they are hung 503 00:31:46,840 --> 00:31:49,880 Speaker 4: or unable to reach a verdict on the most difficult charge. 504 00:31:50,280 --> 00:31:54,560 Speaker 4: It would suggest that perhaps they have returned a guilty verdict. 505 00:31:54,640 --> 00:31:59,080 Speaker 4: That would be probably what most prosecutors would read into 506 00:31:59,120 --> 00:32:01,480 Speaker 4: that decision, but we won't know until the verdict is 507 00:32:01,520 --> 00:32:02,600 Speaker 4: actually read an open court. 508 00:32:03,280 --> 00:32:06,680 Speaker 2: It appears that the defense thinks that the jury has 509 00:32:06,720 --> 00:32:10,880 Speaker 2: reached guilty verdicts on the other counts. Because Combs appeared. 510 00:32:11,080 --> 00:32:14,960 Speaker 2: Moreau says his lawyers explained to him what was happening, 511 00:32:15,640 --> 00:32:18,880 Speaker 2: and Bob explain where the judge is coming from in 512 00:32:19,400 --> 00:32:22,240 Speaker 2: ordering the jurors to resume deliberations. 513 00:32:22,360 --> 00:32:23,880 Speaker 4: Well, what we have here is a trial that wan 514 00:32:24,040 --> 00:32:27,080 Speaker 4: for seven weeks and only two days of jury deliberation. 515 00:32:27,240 --> 00:32:29,280 Speaker 4: So what a judge will typically do, and what the 516 00:32:29,360 --> 00:32:32,280 Speaker 4: judge in this case has done, is given them what's 517 00:32:32,280 --> 00:32:36,560 Speaker 4: called a modified Alan charge. Basically, it tells jurors that 518 00:32:36,600 --> 00:32:39,959 Speaker 4: they should simply go back and continue to deliberate and 519 00:32:40,080 --> 00:32:44,040 Speaker 4: try to reach the unanimous verdict. It's not that uncommon 520 00:32:44,080 --> 00:32:46,520 Speaker 4: for jurors to send notes to the judges to say 521 00:32:46,680 --> 00:32:49,120 Speaker 4: that they can't reach unanimity on some or all of 522 00:32:49,120 --> 00:32:52,120 Speaker 4: the charges, and then the judge urges them to continue 523 00:32:52,120 --> 00:32:56,000 Speaker 4: to deliberate, and sometimes they're able to break through whatever 524 00:32:56,120 --> 00:32:59,800 Speaker 4: barriers they have in reaching unanimity. Sometimes they are unable 525 00:32:59,840 --> 00:33:03,080 Speaker 4: to reach an anonymous verdict. But typically after only two 526 00:33:03,160 --> 00:33:07,800 Speaker 4: days of deliberations in a trial that lasted seven weeks 527 00:33:08,000 --> 00:33:11,479 Speaker 4: and where they heard over thirty witnesses, it's something that 528 00:33:11,480 --> 00:33:13,880 Speaker 4: a judge is going to ask yours to spend more 529 00:33:13,960 --> 00:33:16,840 Speaker 4: time trying to reach a complete verdict, because both the 530 00:33:16,880 --> 00:33:19,880 Speaker 4: prosecution on the defense would prefer that there is a 531 00:33:20,000 --> 00:33:21,960 Speaker 4: verdict as to all of the charges here. 532 00:33:22,480 --> 00:33:26,160 Speaker 2: And so tomorrow we'll see if that modified allen or 533 00:33:26,280 --> 00:33:30,800 Speaker 2: Dynamite charge helps the jurors to reach a unanimous decision 534 00:33:30,840 --> 00:33:34,719 Speaker 2: on that top count. Thanks so much, Bob. That's Robert 535 00:33:34,760 --> 00:33:39,000 Speaker 2: Mints of McCarter and English. Combs could face fifteen years 536 00:33:39,040 --> 00:33:42,360 Speaker 2: in prison to life behind bars if he's convicted on 537 00:33:42,520 --> 00:33:45,120 Speaker 2: all charges. And that's it for this edition of The 538 00:33:45,160 --> 00:33:48,080 Speaker 2: Bloomberg Law Show. Remember you can always get the latest 539 00:33:48,160 --> 00:33:51,280 Speaker 2: legal news on our Bloomberg Law Podcast. You can find 540 00:33:51,280 --> 00:33:55,880 Speaker 2: them on Apple Podcasts, Spotify, and at www dot bloomberg 541 00:33:55,920 --> 00:33:59,720 Speaker 2: dot com, slash podcast slash Law, and remember to tune 542 00:33:59,720 --> 00:34:02,960 Speaker 2: into The Bloomberg Law Show every weeknight at ten pm 543 00:34:03,000 --> 00:34:06,600 Speaker 2: Wall Street Time. I'm June Grosso and you're listening to 544 00:34:06,600 --> 00:34:07,160 Speaker 2: Bloomberg