WEBVTT - Live from the Supreme Court: Week One 0:00:00.160 --> 0:00:04.120 This is Bloomberg Law with June Grosso. Monday was a 0:00:04.200 --> 0:00:07.400 historic day at the Supreme Court. For the first time, 0:00:07.440 --> 0:00:11.160 the country could hear Supreme Court oral arguments live, and 0:00:11.240 --> 0:00:15.280 another first, the arguments were done by telephone. The issue 0:00:15.320 --> 0:00:18.120 in the case was whether businesses can get federal trademark 0:00:18.160 --> 0:00:21.599 protection for website names such as booking dot Com that 0:00:21.760 --> 0:00:24.760 center on a commonly used word. Will hear argument this 0:00:24.840 --> 0:00:30.280 morning in case the United States Patent and Trademark Office 0:00:30.680 --> 0:00:35.120 versus Booking dot Com. Chief Justice John Roberts started the 0:00:35.159 --> 0:00:38.440 session as usual by announcing the case, but then rolled 0:00:38.479 --> 0:00:42.120 out a new format, calling on the jostices by Seniority 0:00:42.159 --> 0:00:45.640 in an orderly fashion, unlike the usual free for all. 0:00:46.520 --> 0:00:51.920 Justice Brier the same question of Justice Thomas's question, good 0:00:51.960 --> 0:00:55.400 morning anyway, There are just a few glitches. Justice Stephen 0:00:55.440 --> 0:00:58.800 Brier's audio at one point was garbled, and Justice Sonia 0:00:58.840 --> 0:01:01.440 Sotomayor seemed to to get her mute button was on. 0:01:02.160 --> 0:01:12.800 Justice Soda Mayor, Yese Soda Mayor, I'm sorry, Chief ms 0:01:12.880 --> 0:01:16.800 Ross picking up on where you were right now. The 0:01:16.880 --> 0:01:20.800 one surprise, Justice Clarence Thomas asked a question for the 0:01:20.880 --> 0:01:25.839 first time in more than a year, Justice Thomas, Yes, 0:01:26.280 --> 0:01:32.360 Ms Ross. The couple of questions, Um, the could booking 0:01:33.000 --> 0:01:37.679 uh acquire an eight hundred number? For that's a vanity number, 0:01:37.720 --> 0:01:41.560 one eight hundred booking for example. Uh, that is similar 0:01:41.680 --> 0:01:46.279 to for one eight hundred plumbing, which is a registered mark. 0:01:46.640 --> 0:01:49.639 Even though the Chief trying to keep the questioning on time, 0:01:50.600 --> 0:01:54.280 Thank you, thank you, Miss Black. Justice Ginsburg, the argument 0:01:54.360 --> 0:01:58.400 ran fifteen minutes past the normal hour long session. Joining 0:01:58.520 --> 0:02:02.000 now is Bloomberg, Supreme Court Reporter Greg Store, how would 0:02:02.040 --> 0:02:06.640 you rate the first live oral arguments? Well, it went 0:02:06.680 --> 0:02:10.920 pretty smoothly. Wasn't like the usual oral arguments in the courtroom. 0:02:10.960 --> 0:02:13.760 But for what it was, there weren't any major glitches. 0:02:14.040 --> 0:02:16.320 Justices were all able to be heard, They could hear 0:02:16.360 --> 0:02:17.920 the lawyers. And you know, we had a couple of 0:02:17.960 --> 0:02:20.320 moments where, for example, Justice and you said, of myr 0:02:20.400 --> 0:02:22.359 seemed to have the new button on. So when Chief 0:02:22.360 --> 0:02:24.280 just As Roberts turned to her for her turn to 0:02:24.320 --> 0:02:26.600 ask questions, she wasn't there. And that happened with one 0:02:26.600 --> 0:02:29.000 of the lawyers as well. And then there were a 0:02:29.040 --> 0:02:31.840 couple of minutes where very hard to hear Justice Brier. 0:02:32.200 --> 0:02:34.600 The audio was just bad. But that only lasted a 0:02:34.600 --> 0:02:36.600 few seconds, and then he must have walked to another 0:02:36.639 --> 0:02:38.760 part of the room or something and we were able 0:02:38.760 --> 0:02:40.560 to hear him. But for the most part it went 0:02:40.680 --> 0:02:45.720 relatively smoothly. And when Chief Justice Roberts said, Justice Thomas, 0:02:46.000 --> 0:02:49.000 we heard a question from Justice Thomas, we did. That 0:02:49.080 --> 0:02:51.240 was the first time we've heard Justice Thomas in an 0:02:51.320 --> 0:02:53.839 argument in more than a year. In fact, that one 0:02:54.120 --> 0:02:57.000 point went ten years without asking a question. He has 0:02:57.080 --> 0:02:59.600 said that he said various things, but among the things 0:02:59.600 --> 0:03:02.840 he has it is I don't like the way the 0:03:03.000 --> 0:03:05.880 arguments go. We asked too many questions. We don't let 0:03:05.880 --> 0:03:08.680 the lawyer get an answer out. He really doesn't seem 0:03:08.680 --> 0:03:10.880 to like the free for all nature of most Supreme 0:03:10.880 --> 0:03:13.440 Court arguments. Well, this was not a free for all argument. 0:03:13.520 --> 0:03:16.040 It was much more structured, and perhaps he felt much 0:03:16.040 --> 0:03:19.720 more comfortable with the format. I think it's also the case, though, 0:03:19.800 --> 0:03:22.000 that it would have been striking for him not to 0:03:22.040 --> 0:03:25.560 ask a question. This was a very structured affair where 0:03:25.720 --> 0:03:28.240 John Roberts went from the most senior justice down to 0:03:28.280 --> 0:03:31.600 the most junior justice. Everybody had their turn, everybody had 0:03:31.639 --> 0:03:34.040 their three or four minutes, and it would have been 0:03:34.120 --> 0:03:36.600 very notable if the one and only justice who didn't 0:03:36.640 --> 0:03:39.920 take advantage of that opportunity was Clarence Thomas. And so 0:03:40.360 --> 0:03:42.320 in some ways maybe this was actually the path of 0:03:42.400 --> 0:03:46.480 least resistance form a person who hasn't heard or seen 0:03:46.880 --> 0:03:50.440 oral arguments before. Was this a fair representation for them 0:03:50.560 --> 0:03:52.760 or are they missing a lot? In some ways, it 0:03:52.920 --> 0:03:56.960 was because it highlighted how some Supreme Court arguments are 0:03:56.960 --> 0:04:01.840 actually pretty dry and technical, and the justices actually do 0:04:02.000 --> 0:04:05.480 get into the weeds about federal statutes and a hundred 0:04:05.520 --> 0:04:09.120 year old precedent, and they're not all the attention grabbing 0:04:09.160 --> 0:04:12.160 abortion and gun rights cases. On the other hand, you 0:04:12.200 --> 0:04:16.240 didn't have the kind of running narrative that you usually 0:04:16.240 --> 0:04:18.960 have in a Supreme Court argument. He did to some degree, 0:04:19.000 --> 0:04:22.600 but you really didn't have justices jumping in and saying, hey, 0:04:22.760 --> 0:04:24.520 you didn't do a very good job of answering that 0:04:24.600 --> 0:04:28.160 other justices question, or say, jumping in and trying to 0:04:28.200 --> 0:04:30.600 help out a lawyer who was floundering a little bit. 0:04:30.839 --> 0:04:34.960 You didn't have that, And because each justice got two 0:04:35.000 --> 0:04:38.680 minutes to ask questions, it meant that chief had more 0:04:38.720 --> 0:04:41.599 of a role of cutting off the lawyers and moving 0:04:41.600 --> 0:04:45.320 them along which he doesn't usually do. Yeah, he usually 0:04:45.480 --> 0:04:47.560 has to do that only maybe at the end of 0:04:47.600 --> 0:04:50.000 the argument when a lawyer is running out of time. 0:04:50.040 --> 0:04:52.479 But even then, when they're in the courtroom, there's a 0:04:52.560 --> 0:04:56.120 like system, a visual system that the lawyers have where 0:04:56.360 --> 0:04:58.159 they see a yellow light when they're running out of 0:04:58.160 --> 0:04:59.600 time and a red light when they're out of time. 0:04:59.760 --> 0:05:02.680 He or it was up to Chief Justice Roberts not 0:05:02.760 --> 0:05:05.000 only to tell the lawyer at the end, your time 0:05:05.120 --> 0:05:07.680 is expiring. You need to wrap up, but also to 0:05:07.760 --> 0:05:10.719 make sure that none of the answers went so long 0:05:11.120 --> 0:05:14.680 that other justices would lose their questioning time. As it was, 0:05:14.800 --> 0:05:18.000 the argument went longer than it was supposed to supposed 0:05:18.000 --> 0:05:20.200 to be sixty minutes, it win seventy five minutes. And 0:05:20.240 --> 0:05:22.839 part of that was it was actually difficult for John 0:05:22.920 --> 0:05:25.320 Roberts to have to cut in over and over and 0:05:25.360 --> 0:05:28.239 over again to interrupt the lawyers so that another justice 0:05:28.279 --> 0:05:31.159 could ask questions and the argument could move alone. Gregg 0:05:31.240 --> 0:05:34.640 looking forward when the justices returned to the bench, will 0:05:34.680 --> 0:05:37.880 they be pressure to continue the live streaming. I'm sure 0:05:37.880 --> 0:05:40.200 there will be public pressure, But part of the question 0:05:40.279 --> 0:05:43.360 is when is this going to happen? There's no guarantee 0:05:43.400 --> 0:05:47.760 that when new term starts in October, that these many 0:05:47.760 --> 0:05:49.720 of them elderly justices are going to be able to 0:05:49.760 --> 0:05:52.640 go back into a courtroom and here arguments like usual. 0:05:52.720 --> 0:05:55.760 So this may last for a while. From the court standpoint, 0:05:55.800 --> 0:05:58.320 no doubt. Part of it will depend on what happens 0:05:58.360 --> 0:06:01.400 with these arguments and the line long ago. Thanks Gregg, 0:06:01.600 --> 0:06:04.960 that's Bloomberg New Supreme Court reporter Greg Store coming up 0:06:05.000 --> 0:06:09.880 next on Bloomberg law that justices appeared divided over religious exemptions. 0:06:11.400 --> 0:06:15.880 The fractious debate over the contraceptive mandate in Obamacare returned 0:06:15.880 --> 0:06:19.360 to the Supreme Court on Wednesday, and the Justices seemed 0:06:19.400 --> 0:06:23.200 as divided as ever. The issue was the Trump administration's 0:06:23.240 --> 0:06:26.440 broad expansion of the types of employers who can opt 0:06:26.480 --> 0:06:29.839 out of the Obamacare requirement that they offer free birth 0:06:29.880 --> 0:06:34.120 control coverage in their healthcare plans. Chief Justice John Roberts, 0:06:34.160 --> 0:06:37.680 the possible pivotal vote, suggested that the Trump exemption might 0:06:37.720 --> 0:06:41.039 sweep too broadly and seemed frustrated that neither side wanted 0:06:41.080 --> 0:06:43.560 to work the problem out well. The problem is that 0:06:43.680 --> 0:06:47.040 neither side in this debate wants the accommodation to work 0:06:47.320 --> 0:06:49.400 the one side doesn't want it to work because they 0:06:49.440 --> 0:06:52.120 want to say the mandate is required, and the other 0:06:52.160 --> 0:06:54.560 side doesn't want it to work because they want to 0:06:55.080 --> 0:06:58.880 uh impose the mandate? Uh? Is it really the case 0:06:58.960 --> 0:07:02.719 that there is no way to resolve those differences? Justice 0:07:02.800 --> 0:07:06.320 Ruth Vader Ginsburg, who called in from Johns Hopkins Hospital, 0:07:06.520 --> 0:07:09.720 where she was being treated for a gallbladder condition, said 0:07:09.720 --> 0:07:12.760 the exemption would come at a cost to women. At 0:07:12.800 --> 0:07:16.560 the end of the day, the government is throwing into 0:07:16.640 --> 0:07:23.360 the wind the women's entitlement to seamless no cost to them. 0:07:23.400 --> 0:07:27.920 It is requiring those women to pay for contraceptive services. 0:07:28.440 --> 0:07:31.760 But Justice Brett Kavanaugh seemed to suggest the exemption was 0:07:31.800 --> 0:07:35.280 an appropriate balance. Why isn't that the way to look 0:07:35.280 --> 0:07:37.120 at the case? And if we get down to the 0:07:37.160 --> 0:07:42.360 bottom line of is this reasonable? Not maybe everyone's preferred choice, 0:07:42.360 --> 0:07:44.679 but at least within the bounds of reasonable, why isn't 0:07:44.680 --> 0:07:46.960 this a reasonable way to balance it? Joining me? Is 0:07:47.040 --> 0:07:50.520 Richard Garnett, a professor at Notre Dame Law School, explain 0:07:50.560 --> 0:07:53.280 the issue here? The real issue, the real issue in 0:07:53.280 --> 0:07:57.160 this case is probably not what a lot of people 0:07:57.200 --> 0:07:58.840 think it is. It's got a bunch of layer. So 0:07:59.080 --> 0:08:03.080 the issue here is whether the administrative agency in question, 0:08:03.400 --> 0:08:09.600 HHS has the authority to create the accommodation that it created. 0:08:09.840 --> 0:08:11.840 So that tells us what the issue is not. The 0:08:11.880 --> 0:08:16.640 issue is not whether the Constitution requires this accommodation. It's 0:08:16.720 --> 0:08:21.800 not whether the Religious Freedom Restoration Act requires this accommodation. 0:08:21.920 --> 0:08:25.720 It's really a question of administrative law. Did the agency 0:08:26.200 --> 0:08:29.720 create this accommodation in the correct way? And was it 0:08:29.840 --> 0:08:33.679 acting within its authority when it did. During the oral arguments, 0:08:33.760 --> 0:08:36.680 I thought that some of the justices seemed to be 0:08:36.800 --> 0:08:39.960 talking about or trying to relitigate questions that I don't 0:08:40.000 --> 0:08:42.719 really think are the ones that are presented. So you know, 0:08:42.760 --> 0:08:46.000 this case isn't supposed to be about whether the contraception 0:08:46.320 --> 0:08:49.640 coverage mandate is a good idea or whether the hobby 0:08:49.640 --> 0:08:52.480 Lobby case was correctly decided. What happened here is that 0:08:52.559 --> 0:08:57.400 a federal agency determined to change its own rules, and 0:08:57.440 --> 0:09:00.760 then some states decided that because I didn't like that 0:09:00.840 --> 0:09:02.440 change in the rules, they were going to say that 0:09:02.440 --> 0:09:05.040 the agencies lacks the power to change them. And I 0:09:05.240 --> 0:09:09.000 suspect that the Court is not going to agree with 0:09:09.040 --> 0:09:11.520 that claim. And then you have some other additional fun 0:09:11.679 --> 0:09:15.280 kind of law geek technical questions like does a federal 0:09:15.320 --> 0:09:18.400 district court have the power to issue a nationwide injunction 0:09:18.440 --> 0:09:20.120 on a policy or does it have the power only 0:09:20.160 --> 0:09:23.920 to issue an injunction within its jurisdiction? And do states 0:09:24.240 --> 0:09:29.760 have what's called standing to challenge changes to federal regulations 0:09:29.760 --> 0:09:33.160 simply because they predict that those changes will result in 0:09:33.240 --> 0:09:36.439 some cost to them. So from a law professor or 0:09:36.480 --> 0:09:39.160 you know, law geeks perspective, is all kinds of things 0:09:39.160 --> 0:09:42.760 swirling around in this case, But it's not really about 0:09:43.280 --> 0:09:47.640 whether or not one believes that the contraception coverage mandate 0:09:47.800 --> 0:09:51.080 is a good idea. Some of the justices seem to 0:09:51.160 --> 0:09:55.720 be talking to a broader audience perhaps, and to Justice 0:09:55.800 --> 0:09:59.320 Ruth Bader Ginsburg kept coming back to the costs of 0:09:59.440 --> 0:10:03.240 exams gens to women, saying that this would be tossing 0:10:03.280 --> 0:10:06.920 to the winds. Congress is intent that women have seamless 0:10:06.920 --> 0:10:10.319 and no cost coverage. Yes, she used the tossing to 0:10:10.400 --> 0:10:12.599 the wind image I think three different times, so that 0:10:12.679 --> 0:10:15.120 might be a good example of what I'm talking about. 0:10:15.160 --> 0:10:18.280 I mean, it's clear that Justice Kinsburgh thinks that the 0:10:18.360 --> 0:10:22.480 change in regulations that the HHS adopted are are bad policy. 0:10:22.720 --> 0:10:25.880 But you know, the question of what Congress's intent was 0:10:26.080 --> 0:10:28.160 is I think a little more complicated. I mean, after all, 0:10:28.200 --> 0:10:32.360 the Affordable Care Act itself didn't contain a contraception coverage 0:10:32.400 --> 0:10:35.720 mandate that was created by the administrative agencies that have 0:10:35.800 --> 0:10:39.520 now decided to recraft the accommodation insense. The agency is 0:10:39.600 --> 0:10:42.320 changing it's its own rules. That's not going against what 0:10:42.440 --> 0:10:46.360 Congress actually said. And there have been exemptions from the 0:10:46.440 --> 0:10:49.400 coverage mandate from the very beginning that it's it's never 0:10:49.440 --> 0:10:52.880 been a blanket requirement. There have always been employers who 0:10:52.880 --> 0:10:55.480 are exempted. It's been a balancing act. So I think 0:10:55.559 --> 0:10:59.640 the claim that these latest regulations are a dramatic departure 0:11:00.160 --> 0:11:05.439 from what Congress did is difficult to maintain. The better complaint, 0:11:05.440 --> 0:11:08.360 it seems to me, is this kind of administrative law 0:11:08.480 --> 0:11:13.000 complaint that the agency crafted these new accommodations in a 0:11:13.040 --> 0:11:16.720 way that sort of might not have followed the strict 0:11:17.080 --> 0:11:21.319 requirements for notice and comment and outside consultation and so on. 0:11:21.400 --> 0:11:24.360 But at the same time, there's plenty of precedent which 0:11:24.520 --> 0:11:26.880 states that so long as the agency does get that 0:11:27.000 --> 0:11:29.880 input at some point it's permissible. I think you're exactly 0:11:29.960 --> 0:11:32.040 right to pick up on the fact that Justice Ginsberg 0:11:32.160 --> 0:11:35.120 was speaking to a larger audience about the broader policy question. 0:11:35.600 --> 0:11:38.240 But I don't really think that broader policy question is 0:11:38.280 --> 0:11:41.200 the legal question that's before the Court in this particular case. 0:11:41.600 --> 0:11:44.360 Let me ask you something that's a broader policy question, 0:11:44.440 --> 0:11:50.640 because according to the States, the Trump exemption allows more 0:11:50.640 --> 0:11:55.600 publicly traded companies and large universities to get the exemption, 0:11:55.960 --> 0:11:59.800 and also expands it to include not just religious but 0:12:00.120 --> 0:12:03.640 moral reasons. You know, the Court had already ruled in 0:12:03.679 --> 0:12:06.960 the Hobby Lobby case several years ago that the Religious 0:12:07.000 --> 0:12:11.480 Freedom Restoration Act required an exemption for a publicly traded corporation, 0:12:11.559 --> 0:12:14.839 so it is theoretically possible, although as the lawyers pointed 0:12:14.840 --> 0:12:18.040 out in this case, it's not particularly likely that a 0:12:18.120 --> 0:12:21.440 large publicly traded corporations could try to invoke this exemption. 0:12:21.480 --> 0:12:23.800 That is, they're not categorically ruled out, but they would 0:12:23.800 --> 0:12:27.680 have to assert a sincere religious or moral objection to 0:12:27.760 --> 0:12:30.880 providing the coverage in question. And I don't think we 0:12:30.960 --> 0:12:33.640 have much evidence that there's a whole lot of publicly traded, 0:12:33.720 --> 0:12:36.480 large corporations that are lining up to do that. On 0:12:36.559 --> 0:12:40.280 the opposite side of Justice Ruth Bader Ginsburg, we had 0:12:40.360 --> 0:12:44.280 Justice Alito, who wrote the Hobby Lobby case. What were 0:12:44.320 --> 0:12:47.480 some of the points that he was trying to make well. 0:12:47.640 --> 0:12:51.240 I think Justice Alito's main point to be that the 0:12:51.360 --> 0:12:55.560 Religious Freedom Restoration Act, as the Court had already held, 0:12:55.840 --> 0:12:59.760 requires religious accommodations in some cases, and that what had 0:13:00.080 --> 0:13:02.720 been here with this accommodation was not that the agency 0:13:02.760 --> 0:13:05.760 had decided that it was required, but that it's permissible. 0:13:06.160 --> 0:13:09.560 And I think in Justice Alito's view, it's consistent with 0:13:09.640 --> 0:13:14.360 longstanding American traditions to try to accommodate religious objections when 0:13:14.440 --> 0:13:17.480 one can, and the Religious Freedom Restoration Act kind of 0:13:17.520 --> 0:13:19.720 an expression of that policy. And I think he believes 0:13:19.760 --> 0:13:22.440 that this rule is as well, and that, you know, 0:13:22.480 --> 0:13:26.960 since it complies with the relevant administrative law principles that 0:13:27.120 --> 0:13:29.960 the States are on. Pretty I think he would say 0:13:30.280 --> 0:13:34.319 weak ground in trying to insist that somehow the accommodation 0:13:34.440 --> 0:13:38.200 is impermissible. It might well be bad policy, but the 0:13:38.240 --> 0:13:41.680 issue here is whether the agency is authorized to make 0:13:41.800 --> 0:13:44.440 this change. I took Justice Aldo's point to be that 0:13:44.640 --> 0:13:47.120 not only is the agency authorized to make this change, 0:13:47.160 --> 0:13:50.200 but that the change, in his view, is consistent with 0:13:50.360 --> 0:13:54.000 the policy of accommodation. That's the Religious Rate Restoration Actents. 0:13:54.640 --> 0:13:58.880 Next on Bloomberg Lawford Decide, I've been talking to Professor 0:13:58.960 --> 0:14:01.880 Richard Garnett, have noted Dame Law School about the Supreme 0:14:01.920 --> 0:14:05.840 Court's arguments over the Trump administration's expansion of the religious 0:14:05.840 --> 0:14:10.319 exemption to the Obamacare contraceptive mandate. Several of the justices 0:14:10.400 --> 0:14:14.439 seemed dismayed that the parties couldn't work the problem out themselves. 0:14:14.480 --> 0:14:18.800 Here's Justice Stephen Bryer. The point of the religious clauses 0:14:19.440 --> 0:14:23.120 is to try to work out accommodations because they can 0:14:23.160 --> 0:14:26.000 be some of the most difficult to resolve disputes, and 0:14:26.040 --> 0:14:29.960 they can substitute a kind of hostility for harmony. So 0:14:30.040 --> 0:14:33.280 from that point of view, I really repeat, there's anything 0:14:33.280 --> 0:14:37.080 you want to add the Chief Justice's question, I don't 0:14:37.200 --> 0:14:40.840 understand why this can't be worked out. So we have 0:14:41.000 --> 0:14:44.320 the Chief who some people will look at as a 0:14:44.360 --> 0:14:47.960 middle ground here, perhaps a deciding vote in these kinds 0:14:48.000 --> 0:14:52.080 of cases. And right off the bat he questioned whether 0:14:52.480 --> 0:14:56.800 the Trump exemption might sweep too broadly, and then later 0:14:56.800 --> 0:15:01.800 on in the argument, Justice Elena Kagan re asked that question. Yeah, 0:15:01.840 --> 0:15:04.640 I think both of them wanted to have that issue 0:15:04.720 --> 0:15:06.960 kind of out in the conversation. That is, had the 0:15:07.240 --> 0:15:10.200 you know, in its effort to accommodate, had the agency 0:15:10.320 --> 0:15:12.600 kind of gone bigger than it needed to. But I 0:15:12.600 --> 0:15:15.040 guess my own read, which certainly could be wrong, is 0:15:15.040 --> 0:15:19.200 that once that's the discussion, then the accommodation is going 0:15:19.240 --> 0:15:22.280 to be upheld, because you're still talking about the broad 0:15:22.520 --> 0:15:26.520 range of discretion that agencies have within which to move. So, 0:15:26.720 --> 0:15:29.080 you know, whether or not has a policy matter. A 0:15:29.120 --> 0:15:32.600 particular justice might think that this accommodation is broader than 0:15:32.680 --> 0:15:36.600 the Religious Freedom Act would require. That's perfectly consistent with saying, 0:15:36.640 --> 0:15:39.040 but the agency has the authority to do it if 0:15:39.080 --> 0:15:41.360 it wants. That was kind of how I read it. 0:15:41.400 --> 0:15:45.000 And you know, even Justices Kagan and Brier and I'm 0:15:45.000 --> 0:15:47.920 not suggesting that they're gonna side with the Little Sisters. 0:15:47.960 --> 0:15:50.640 I wouldn't predict that so much, but I took them 0:15:50.960 --> 0:15:53.920 in a similar way to be acknowledging that this is 0:15:53.960 --> 0:15:58.000 a case really about the power of administrative agencies to 0:15:58.040 --> 0:16:01.400 act within the broad describe shi that Congress has given them. 0:16:01.400 --> 0:16:03.280 And it seems to me that once that's the terrain 0:16:03.960 --> 0:16:07.120 that the justices are arguing about, that that points in 0:16:07.120 --> 0:16:09.480 the direction of of a win for the Little Sisters 0:16:09.480 --> 0:16:12.440 in this particular case. Well, Justice Brier said, can't you 0:16:12.480 --> 0:16:15.440 work it out? And isn't that what the Supreme Court 0:16:15.520 --> 0:16:18.480 asked them to do? The Yeah, in the zoo Bic case. 0:16:18.640 --> 0:16:20.440 You know, if you remember, it was right after Justice 0:16:20.400 --> 0:16:23.320 Scalia passed away and the Court was down to eight people, 0:16:23.800 --> 0:16:27.200 and rather than issue a four four opinion that kind 0:16:27.200 --> 0:16:29.680 of really cut to the heart of the matter, they 0:16:29.720 --> 0:16:32.160 put together a kind of an to nothing ruling that 0:16:32.280 --> 0:16:35.600 didn't really do much but basically said, go fix this. 0:16:36.040 --> 0:16:39.640 And I think the litigation position of the government, the 0:16:39.680 --> 0:16:42.000 federal government and of the Little Sisters is that, well, 0:16:42.280 --> 0:16:44.840 that's what we did after the zoo Bic case, said 0:16:44.840 --> 0:16:46.720 go work it out. We did, and the way we 0:16:46.720 --> 0:16:49.920 worked it out was with these new regulations which provide 0:16:50.480 --> 0:16:54.480 a pretty generous accommodation for those companies, those employers who 0:16:54.600 --> 0:16:57.440 have objections to this. And this litigation has been going 0:16:57.480 --> 0:16:59.720 on now for close to a decade and this is 0:16:59.760 --> 0:17:02.480 an for on our part too to kind of put 0:17:02.520 --> 0:17:05.760 this litigation to a to a halt and to move on, 0:17:06.080 --> 0:17:10.800 recognizing that very few employers have actually tried to invoke it, 0:17:11.280 --> 0:17:13.719 and that you know, for the vast majority of employers 0:17:13.760 --> 0:17:16.320 the contception coverage mandates not a problem. But that's a 0:17:16.359 --> 0:17:19.560 new broad accommodation means that a lot of the litigation, 0:17:19.600 --> 0:17:22.000 which has occupied so much time of court, can kind 0:17:22.000 --> 0:17:24.000 of be put to rest. So I guess that's that's 0:17:24.040 --> 0:17:26.159 what the federal government would say in this case. We 0:17:26.160 --> 0:17:27.639 we did what the court told us to do. In 0:17:27.680 --> 0:17:31.520 the Zoobic opinion. Obviously, there's always a range of options. 0:17:31.640 --> 0:17:35.240 The decision can even either be very narrow or very broad. 0:17:35.720 --> 0:17:38.000 Tell us what some of the options are. I don't 0:17:38.040 --> 0:17:41.600 think there really are any sort of sweeping broad outcomes 0:17:41.640 --> 0:17:43.760 that are on the table. This isn't a case where 0:17:43.760 --> 0:17:47.280 the courts being asked to create a new constitutional right 0:17:47.520 --> 0:17:50.560 or to reverse the precedent having to do with religious 0:17:50.600 --> 0:17:52.399 freedom and so on. I think from the perspective of 0:17:52.440 --> 0:17:54.880 the Little Sisters and of the national government, really all 0:17:54.920 --> 0:17:58.320 they're asking is for the Court to reaffirm that agencies, 0:17:58.320 --> 0:18:01.879 when they're acting within the scope of the authority that 0:18:01.920 --> 0:18:05.840 Congress has given them, have a wide range of discretion. Again, 0:18:05.880 --> 0:18:08.360 the issue here is not whether the religious freedom restoration 0:18:08.359 --> 0:18:11.719 that requires this particular accommodation, but whether it permits it. 0:18:11.800 --> 0:18:14.280 And I think it's likely that it does. Some of 0:18:14.320 --> 0:18:18.760 the arguments against the accommodation, if they were accepted, would 0:18:18.840 --> 0:18:21.560 be a pretty big deal. So there's the arguments that 0:18:21.720 --> 0:18:24.399 made that the First Amendments established from clause does not 0:18:24.600 --> 0:18:29.240 permit governments to accommodate religion if those accommodations would impose 0:18:29.280 --> 0:18:32.280 any substantial costs on third parties, and law professors like 0:18:32.320 --> 0:18:34.920 me and others argue about that position, but I don't 0:18:34.920 --> 0:18:37.080 believe that's the laws that stands, And I think if 0:18:37.280 --> 0:18:39.160 if a majority of the Court were to adopt that, 0:18:39.160 --> 0:18:41.600 that would pretty interesting change. But I don't think that's 0:18:41.640 --> 0:18:43.640 going to happen. So my own view is that there's 0:18:43.720 --> 0:18:46.440 certainly a lot of interest in this case. It's been 0:18:46.560 --> 0:18:48.840 bouncing up and down a long time in the Supreme 0:18:48.840 --> 0:18:50.840 Court and has kind of culture war dimensions and so 0:18:50.960 --> 0:18:55.360 on that as a legal matter, regardless of which side wins, 0:18:55.720 --> 0:19:01.920 it's likely to be on relatively narrow, relatively technical grounds. Now, 0:19:01.960 --> 0:19:05.359 there are some really intriguing possibilities the Court could change 0:19:05.400 --> 0:19:08.800 the rules about standing, for example, whether state governments have 0:19:08.960 --> 0:19:12.159 standing to sue for reasons like the ones the states 0:19:12.160 --> 0:19:15.159 have invoked here. There's an interesting question, like I said earlier, 0:19:15.160 --> 0:19:18.600 about the power of federal courts to issue injunctions that 0:19:18.680 --> 0:19:21.600 cover the whole country. Get A lot of academics and 0:19:21.640 --> 0:19:23.919 others have been thinking a lot about this, But in 0:19:24.040 --> 0:19:27.320 terms of the religious freedom dimension, this case doesn't really 0:19:27.440 --> 0:19:31.280 hold out the prospect of any sweeping changes or innovation. 0:19:31.520 --> 0:19:34.800 Thanks rich That's Richard Garnett of Notre Dame Law School 0:19:35.119 --> 0:19:39.240 coming up next on Bloomberg Law, robot calls and toilet flushes. 0:19:39.359 --> 0:19:44.560 At the Supreme Court arguments, everyone seems to agree that 0:19:44.720 --> 0:19:49.000 no one likes robocalls. Chief Justice John Roberts expressed that 0:19:49.119 --> 0:19:52.919 sentiment during a case on Wednesday in which political groups 0:19:52.960 --> 0:19:56.240 are challenging the exemption to the ban on robo calls 0:19:56.359 --> 0:19:59.400 that allows the collection of government debt. And it's an 0:19:59.400 --> 0:20:03.520 extremely popular law. Nobody wants to get robocalls on their 0:20:03.560 --> 0:20:07.680 cell phone. The idea that Congress would embrace that result 0:20:08.119 --> 0:20:13.000 simply to save this government debt collection, Uh, they'd have 0:20:13.080 --> 0:20:17.840 to be very anxious to be more unpopular, uh than 0:20:18.000 --> 0:20:21.400 they otherwise would be. The court almost made it through 0:20:21.520 --> 0:20:25.560 four live oral arguments by phone without a major mishap, 0:20:25.800 --> 0:20:28.359 but towards the end of these arguments there was the 0:20:28.520 --> 0:20:33.000 unmistakable sound of a toilet flushing live. But the FEC 0:20:33.160 --> 0:20:35.840 has said is that when the subject matter of the 0:20:35.840 --> 0:20:40.119 fault ranges the topic, then the call is transformed. But 0:20:40.240 --> 0:20:43.240 the justices completely ignored the distraction and went on with 0:20:43.280 --> 0:20:46.240 the arguments. Joining me to talk about the substance of 0:20:46.320 --> 0:20:49.440 this case under the Telephone Consumer Protection Act or t 0:20:49.600 --> 0:20:53.160 c p A is Christine Riley, a partner Manette, Phelps 0:20:53.160 --> 0:20:56.320 and Phillips. So Christine tell us about the main issue 0:20:56.320 --> 0:20:59.920 in the case. And the interesting issue about this particular 0:21:00.119 --> 0:21:02.520 argument is it is about the t c p A 0:21:02.880 --> 0:21:06.200 and it is about a specific exemption, but there are 0:21:06.200 --> 0:21:10.480 far broader implications of this particular case. So going back 0:21:10.520 --> 0:21:13.640 to the first question, we're really looking at a very 0:21:13.720 --> 0:21:18.640 specific exemption that was created by Congress in two thousand fifteen, 0:21:19.000 --> 0:21:22.240 and specifically, there was an exemption put into the t 0:21:22.400 --> 0:21:25.440 c p A that would allow calls made to cell 0:21:25.560 --> 0:21:30.800 phones if they concerned federal debt collection, and that was 0:21:30.880 --> 0:21:34.560 carved right into the automated calling the restrictions. The question 0:21:34.600 --> 0:21:37.840 that came up from a political group a a PC 0:21:38.440 --> 0:21:41.760 was basically asking why is that fair? Why is it 0:21:41.960 --> 0:21:46.040 fair to have this exemption that is in favor of 0:21:46.080 --> 0:21:50.119 the federal government debt collection, and that's the exclusion of 0:21:50.240 --> 0:21:53.760 other types of call such as, for example, political calls. 0:21:54.160 --> 0:21:58.040 If political agencies or organizations want to make calls, they 0:21:58.080 --> 0:22:01.080 need special consent under the u c p A if 0:22:01.080 --> 0:22:04.399 they're using some type of automated system. So the question 0:22:04.440 --> 0:22:08.560 in front of the Supremes was is that government debt 0:22:08.600 --> 0:22:13.240 collection exemption constitutional? Is it a violation of the First 0:22:13.280 --> 0:22:16.840 Amendment free speech? And if the answer to that question 0:22:17.080 --> 0:22:21.399 is yes, it is unconstitutional, is the remedy then to 0:22:21.600 --> 0:22:24.919 basically just cut that piece out of the statute and 0:22:25.000 --> 0:22:28.840 go back to the status quo. The broadom implication, of course, 0:22:29.119 --> 0:22:33.080 is an argument being made by the political consultant here 0:22:33.520 --> 0:22:37.560 who say that even if you find this particular exemption 0:22:37.720 --> 0:22:42.119 is unconstitutional, the remedy that they're asking for is that 0:22:42.160 --> 0:22:46.200 the Supreme Court get rid of the entire provision on 0:22:46.359 --> 0:22:51.240 automated calling, rather than just cutting out the part that's bad. 0:22:51.680 --> 0:22:54.159 And that's really where the fight is. Give us a 0:22:54.200 --> 0:22:57.800 feel of what the justices seem to be concerned about. 0:22:58.240 --> 0:23:03.160