WEBVTT - Environmentalists Get Partial Wins at Supreme Court 0:00:00.480 --> 0:00:05.680 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:05.960 --> 0:00:09.680 The Supreme Court gave residents of the tiny town of Opportunity, 0:00:09.760 --> 0:00:13.560 Montana an answer in their decades long court battle against 0:00:13.640 --> 0:00:16.640 one of the largest corporations in the world. The residents 0:00:16.640 --> 0:00:19.639 have been fighting to have Atlantic Richfield do additional clean 0:00:19.720 --> 0:00:23.000 up of their property contaminated with arsenic and lead from 0:00:23.040 --> 0:00:26.920 decades of smelting operations. At the oral arguments, Chief Justice 0:00:27.040 --> 0:00:30.040 John Roberts pointed out the e p a's role and 0:00:30.120 --> 0:00:32.360 yet someone else in your position would come in and say, well, 0:00:32.360 --> 0:00:34.920 you're not doing anything here, and so we're going to 0:00:34.960 --> 0:00:37.239 go ahead and do this, when the EPA's answer might 0:00:37.280 --> 0:00:39.880 simply be that, well, we haven't gotten to it yet, 0:00:39.880 --> 0:00:41.680 but we want to be the ones to decide what 0:00:41.760 --> 0:00:44.320 to do rather than the particular landowners there, because we 0:00:44.440 --> 0:00:48.320 have a broader perspective affecting the whole site. But Justice 0:00:48.360 --> 0:00:51.760 Neil Gorst's questioned whether the property rights of the residents 0:00:51.800 --> 0:00:54.640 were being infringed. Is there a takings claim you think 0:00:54.720 --> 0:00:59.880 that arises from the government's position that any remediation efforts 0:00:59.880 --> 0:01:03.080 for a period I I guess forty five years is 0:01:03.120 --> 0:01:06.679 prohibited by landowners. On Monday, the Supreme Court rule that 0:01:06.720 --> 0:01:09.720 the landowners must first get approval from the e p A. 0:01:10.360 --> 0:01:12.759 Joining me is Pat Parento, a professor at the Vermont 0:01:12.840 --> 0:01:17.959 Law School. So who gets to win? The landowners, Atlantic Richfield, 0:01:18.240 --> 0:01:22.279 the e p A swards a split decision. Each gets 0:01:22.319 --> 0:01:25.600 something out of it. The landowners have the right, says 0:01:25.640 --> 0:01:29.360 the Supreme Court, to proceed in state court to seek 0:01:29.400 --> 0:01:35.680 additional remedies or restoration for the contamination from the Atlantic 0:01:35.760 --> 0:01:40.600 Richfield site. Atlantic rich Field gets to argue that the 0:01:40.680 --> 0:01:45.880 state remedy or the additional landowner remedy cannot interfere with 0:01:46.440 --> 0:01:48.600 the e p A remedy, which, of course at lank 0:01:48.680 --> 0:01:52.840 Richfield has agreed to implement. And e p A gets 0:01:52.840 --> 0:01:56.360 to keep control over the overall clean up and make 0:01:56.400 --> 0:02:00.080 sure that what landowners might do in addition to what 0:02:00.200 --> 0:02:03.200 e p A has ordered to be done doesn't interfere 0:02:03.240 --> 0:02:07.440 with that. So everybody gets something. Chief Justice Roberts authored 0:02:07.560 --> 0:02:12.160 the majority opinion. What was his thinking? The Chief Justice 0:02:12.200 --> 0:02:15.720 was sympathetic to the landowners, and he thought that Congress 0:02:15.840 --> 0:02:19.919 had clearly carved out a remedy for landowners who felt 0:02:19.960 --> 0:02:22.440 like the e p A remedy didn't go far enough 0:02:22.440 --> 0:02:26.640 to protect them, and he said state courts and state 0:02:26.680 --> 0:02:30.400 based remedy were permissible and that Congress did not seek 0:02:30.440 --> 0:02:34.000 to cut those off. Justice Alito wasn't as convinced to that, 0:02:34.080 --> 0:02:36.720 and I think he probably would have tossed the landowners 0:02:36.720 --> 0:02:41.120 out altogether. Justice Gorst was even more sympathetic to the 0:02:41.200 --> 0:02:44.040 landowners and felt like they should be able to proceed 0:02:44.320 --> 0:02:48.359 without EPA's permission or approval. So you saw really an 0:02:48.400 --> 0:02:53.160 interesting split among the conservative wing of the Court in 0:02:53.200 --> 0:02:56.720 this particular case. The liberals were sat there quietly. They 0:02:56.760 --> 0:03:00.639 certainly went along with Roberts and not with Gorst. An 0:03:00.680 --> 0:03:04.280 interesting little bit of a split between robertson Gorc on 0:03:04.360 --> 0:03:07.520 this course. It said that the outcome in the case 0:03:07.720 --> 0:03:11.920 strips away ancient common law rights from innocent landowners and 0:03:12.000 --> 0:03:16.399 forces them to suffer toxic waste in their backyards, playgrounds, 0:03:16.440 --> 0:03:20.560 and farms. And there seemed to be a little bickering, 0:03:20.560 --> 0:03:24.399 shall we say, between Gorci and Robert's using the metaphor 0:03:24.480 --> 0:03:28.240 of a sandbox, Yes, a fight in the sandbox. Indeed, 0:03:28.480 --> 0:03:31.640 it was a test to exchange is finding his voice, 0:03:31.720 --> 0:03:34.280 I think on the court and being willing to stand 0:03:34.360 --> 0:03:37.080 up to the chief in this instance. He almost sounds 0:03:37.120 --> 0:03:40.400 like an environmentalist in this case, right, worried about toxic 0:03:40.520 --> 0:03:44.960 sandboxes and so forth. You know, Gorsage does reveal himself 0:03:45.000 --> 0:03:50.000 to be a strong believer in sort of the custom 0:03:50.040 --> 0:03:54.120 of law, common law, our heritage of all. We've seen 0:03:54.160 --> 0:03:57.080 that before in some of his opinions, and it's part 0:03:57.080 --> 0:04:01.320 of being, i think a conservative judge who believes in 0:04:01.480 --> 0:04:04.840 property rights, and a lot of his concern about giving 0:04:05.040 --> 0:04:08.360 the e p A too much control over whether what 0:04:08.440 --> 0:04:11.600 the landowner wants is permissible or not is a reflection 0:04:11.640 --> 0:04:15.360 of his anti regulatory outlook on life. So not not 0:04:15.560 --> 0:04:20.039 terribly surprising, but very strongly word concurring and dissenting opinion. 0:04:20.120 --> 0:04:23.840 For sure, the landowners can sue in state court under 0:04:23.920 --> 0:04:27.040 state law, but they need e p A approval and 0:04:27.240 --> 0:04:30.000 how big it catches that, as a leader pointed out 0:04:30.080 --> 0:04:33.839 in his concurring opinion, at this point, the landowners really 0:04:33.839 --> 0:04:36.920 can't proceed any further without ep A sign off, and 0:04:37.040 --> 0:04:41.040 e p A rejected the proposed additional remedy that the 0:04:41.120 --> 0:04:44.120 landowners wanted before, so there's no reason to believe that 0:04:44.160 --> 0:04:46.880 e p A is going to approve at least what 0:04:46.960 --> 0:04:49.599 the landowners had previously proposed. Now they may come up 0:04:49.640 --> 0:04:53.160 with a new proposal. But as they go back, you know, 0:04:53.200 --> 0:04:55.920 the Supreme Court has sent this back to the Montana 0:04:55.960 --> 0:04:58.440 Supreme Court for further proceedings. And it looks to me 0:04:58.560 --> 0:05:01.320 like either the land owners are going to have to 0:05:01.400 --> 0:05:04.000 go to e p A right now before they go 0:05:04.080 --> 0:05:07.120 any further in state court, or the state court is 0:05:07.120 --> 0:05:10.440 going to have to dismiss the landowner's case unless and 0:05:10.560 --> 0:05:13.800 until they get e PA's approval. That appears to be 0:05:13.839 --> 0:05:16.360 where we are at this point. So then so much 0:05:16.440 --> 0:05:19.800 depends on who's running the e p A and what 0:05:20.200 --> 0:05:23.960 the attitude of the e p A of the moment is. 0:05:24.440 --> 0:05:27.320 So that seems like a defeat for the landowners, then 0:05:28.000 --> 0:05:30.240 I think it's a partial defeat for sure. I Mean, 0:05:30.240 --> 0:05:32.839 what they were counting on is a green light to 0:05:32.960 --> 0:05:35.520 just go forward with their case and prove their case 0:05:35.560 --> 0:05:38.320 in state court and get an award from state court. 0:05:38.720 --> 0:05:40.240 And it doesn't look like they're going to be able 0:05:40.240 --> 0:05:42.360 to do that, And it also doesn't look like they're 0:05:42.360 --> 0:05:44.919 going to be able to persuade e p A of 0:05:45.000 --> 0:05:46.880 the kind of work that they want to do on 0:05:46.920 --> 0:05:49.560 their own property, which may, according to e p A, 0:05:50.000 --> 0:05:53.440 interfere with the approach that e p A has taken 0:05:54.160 --> 0:05:55.880 to the clean up of the site. And of course 0:05:55.920 --> 0:05:59.360 that's part of this big settlement agreement UM with our 0:05:59.400 --> 0:06:02.240 Atlantic rich Field. And I think it's gonna be hard 0:06:02.279 --> 0:06:06.160 to convince e p A that additional remedies are needed, 0:06:06.480 --> 0:06:09.600 but at least the Supreme Court has given the landowners 0:06:09.760 --> 0:06:14.320 the opportunity to try that. Does this decision give enough 0:06:14.440 --> 0:06:18.440 certainty to companies that if they agree to a clean 0:06:18.560 --> 0:06:21.520 up lan with the e p A, that it's definite 0:06:21.680 --> 0:06:23.840 that they don't have to worry about paying more in 0:06:23.920 --> 0:06:26.360 the future. No, it doesn't, and I think that's one 0:06:26.400 --> 0:06:29.480 thing that bothered Aldo. It still leaves a crack in 0:06:29.560 --> 0:06:32.960 the door. You know, after how many years, some twenty 0:06:33.040 --> 0:06:36.719 some years, this site has been on the National Priority 0:06:36.800 --> 0:06:39.240 List and being quote cleaned up and the works still 0:06:39.279 --> 0:06:41.599 not done. There's still many years left of work to do. 0:06:42.240 --> 0:06:46.320 So there's now still the uncertainty about whether a landowner 0:06:46.360 --> 0:06:49.520 could actually make a compelling argument, as you say, either 0:06:49.560 --> 0:06:51.400 to this e p A or to a future e 0:06:51.560 --> 0:06:54.640 p A, that the remedy doesn't go far enough for 0:06:54.680 --> 0:06:57.480 them and that their groundwater, they're drinking water, or their 0:06:57.600 --> 0:07:00.400 use of water on their land is not saying I mean, 0:07:00.400 --> 0:07:02.560 we are talking about arsenic after all, this is a 0:07:02.600 --> 0:07:06.640 serious threat. So yeah, I think this case does create 0:07:06.720 --> 0:07:11.400 uncertainty for settlements, particularly for these very expensive cleanups. Does 0:07:11.480 --> 0:07:16.080 the decision give enough guidance? Is it clear enough for 0:07:16.400 --> 0:07:19.320 federal courts state courts that have to interpret it in 0:07:19.400 --> 0:07:22.680 the future. I don't think so. The case has left 0:07:22.720 --> 0:07:26.560 open the question what would happen if the landowners propose 0:07:26.800 --> 0:07:29.440 a new plan for clean up on their property that 0:07:29.520 --> 0:07:33.480 EPA disapproves. Can the landowners challenge the fact that e 0:07:33.600 --> 0:07:37.080 p A has refused to let them pursue that remedy 0:07:37.440 --> 0:07:40.160 or not? We don't know the answer to that. Thanks Pat. 0:07:40.440 --> 0:07:44.560 That's Pat Parento of the Vermont Law School. The Supreme 0:07:44.600 --> 0:07:47.960 Court gave environmentalists a partial wind on the scope of 0:07:48.040 --> 0:07:51.280 the Clean Water Act. Joining me is Greg star Bloomberg, 0:07:51.320 --> 0:07:54.280 new Supreme Court reporter. So, Greg, this was about a 0:07:54.320 --> 0:07:58.880 water treatment facility in Hawaii. Tell us the background. The 0:07:58.960 --> 0:08:02.800 background is this this facilities in Maui. It's about a 0:08:02.840 --> 0:08:07.320 half mile from the ocean, and it dumps wastewater into 0:08:07.400 --> 0:08:13.040 wells underground, and the water then travels through the groundwater 0:08:13.120 --> 0:08:15.920 and eventually gets into the ocean, and environmental to say 0:08:15.960 --> 0:08:19.239 they have studies that show it is doing serious damage 0:08:19.280 --> 0:08:21.880 to coral reefs there. And so the question is whether 0:08:22.160 --> 0:08:25.840 the Federal Clean Water Act requires that the facility have 0:08:26.080 --> 0:08:28.680 get a federal permit to do that sort of thing, 0:08:28.720 --> 0:08:31.080 and if they do have to, they'll be subject to 0:08:31.400 --> 0:08:36.600 some significant restrictions. Did this turn on basically the interpretation 0:08:36.640 --> 0:08:40.960 of one word. It did, and the word is from 0:08:41.240 --> 0:08:45.680 uh federal law. The Clean Water Act says UH that 0:08:46.400 --> 0:08:51.400 UH if UH pollution goes from what's known as a 0:08:51.440 --> 0:08:53.520 point source, which is a you know, kind of a 0:08:53.559 --> 0:08:58.800 main source of of discharge to a waterway, then it's 0:08:58.840 --> 0:09:02.400 subject to the permanenting requirements under the Clean Water Act. 0:09:02.480 --> 0:09:06.480 And so the question as well, you know, here the 0:09:07.679 --> 0:09:12.080 treated wastewater didn't go directly into the ocean. It went 0:09:12.440 --> 0:09:16.080 through that half mile of groundwater first. And the question 0:09:16.480 --> 0:09:22.160 was basically is that coming from the treatment facility? And 0:09:22.200 --> 0:09:27.360 so what did the justices decide? They decided, well, maybe, um, 0:09:28.240 --> 0:09:31.000 you know, the the argument was one a few months 0:09:31.000 --> 0:09:34.559 ago where the court didn't the justices at least the 0:09:34.640 --> 0:09:37.200 ones in in the middle of the court didn't seem 0:09:37.320 --> 0:09:39.480 like either side's argument. The both sides kind of went 0:09:39.520 --> 0:09:42.719 too far. On one hand, you had the Trump administration 0:09:42.920 --> 0:09:46.200 and Maui County saying, look, it's got to be direct. 0:09:46.360 --> 0:09:49.720 If the if it doesn't go directly from the pipe 0:09:49.800 --> 0:09:53.040 into the river or the ocean or whatever, uh, then 0:09:53.080 --> 0:09:58.439 it doesn't qualify. And meanwhile, the federal appeals court in California, 0:09:58.520 --> 0:10:01.120 the Ninth Circuit, had said, well, as long as it's 0:10:01.200 --> 0:10:05.360 fairly traceable to that source, that's enough. And what the 0:10:05.400 --> 0:10:08.240 Supreme Court said was, you know, we're gonna we're gonna 0:10:08.240 --> 0:10:10.600 say it doesn't have to be direct, but it needs 0:10:10.600 --> 0:10:14.640 to be functionally equivalent of direct. So if it's pretty close, 0:10:15.080 --> 0:10:17.920 if the facility you know, dumps it out and it 0:10:17.920 --> 0:10:19.560 doesn't have to go very far to get into the 0:10:19.559 --> 0:10:23.040 ocean or the river or whatever, uh, that qualifies. And 0:10:23.080 --> 0:10:25.439 so they then kicked the case back to the the 0:10:25.960 --> 0:10:29.199 federal appeals court to figure out whether the Maui facility 0:10:29.559 --> 0:10:33.199 met that standard of being functionally equivalent to a direct discharge. 0:10:34.040 --> 0:10:38.480 So that's a partial win for environmentalists in this case, 0:10:38.559 --> 0:10:41.400 But is it a full blown wind for environmentalists in 0:10:41.440 --> 0:10:45.000 the future when there are other cases like this. Uh. Yeah, 0:10:45.160 --> 0:10:48.720 they seem very happy with this. The lawyer David Hankin, 0:10:48.800 --> 0:10:52.080 who argued the case, predicted that that they're gonna win 0:10:52.520 --> 0:10:54.840 when they go back to the appeals court, and that 0:10:54.960 --> 0:10:58.320 this is you know, really a big victory, uh, in 0:10:58.440 --> 0:11:01.800 that it keeps the Clean Water Acts still operating to 0:11:02.720 --> 0:11:08.319 regulate some of these polluting facilities. The the Trump administration's 0:11:08.480 --> 0:11:11.920 rule and actually Malay County win even further would have 0:11:11.960 --> 0:11:16.480 sharply curtailed what they covered, what e p A could regulate, 0:11:16.800 --> 0:11:20.480 what environmental groups could sue over. Given that this is 0:11:20.520 --> 0:11:24.400 a pretty conservative court environmentalists, we had reason to fear 0:11:24.440 --> 0:11:26.000 they might have had a result like that, but it 0:11:26.040 --> 0:11:29.440 didn't turn out that way. Instead, the court left still 0:11:29.640 --> 0:11:32.720 a fairly robust Clean Water Act and the decision was 0:11:32.760 --> 0:11:35.679 six to three. What was the line up, So it 0:11:35.760 --> 0:11:38.480 was the Court's liberals in the majority, with Stephen Bryer 0:11:38.520 --> 0:11:41.240 writing the opinion, and they were joined by John Roberts, 0:11:41.240 --> 0:11:44.640 the Chief Justice, and Brett Kavanaugh. Uh So, you know, 0:11:44.679 --> 0:11:46.280 this is the case where we kind of have a 0:11:46.360 --> 0:11:49.520 court that we might have predicted when Kavanaugh joined the 0:11:49.520 --> 0:11:53.840 Court where at least occasionally, Um, the Liberals would would 0:11:53.880 --> 0:11:58.440 win victories, bringing over the relative moderate Justices Kavanaugh and 0:11:58.600 --> 0:12:04.000 Roberts the Morgans servative ones groc Thomas Alito dissented. UH 0:12:04.200 --> 0:12:07.520 said that the Clean Water Act is is not as 0:12:07.520 --> 0:12:11.080 expansive as the majority said. I wonder if the liberals 0:12:11.200 --> 0:12:15.839 cheer every time Justice Roberts sides with them secretly. I'm 0:12:15.880 --> 0:12:20.080 sure they're they're they're at least relieved. And you know, 0:12:20.280 --> 0:12:23.800 I think, you know, Justice like Briar, who wrote this opinion, Um, 0:12:23.840 --> 0:12:26.960 you know, clearly thinks and knows he can work with 0:12:27.040 --> 0:12:29.240 the Chief Justice in at least some cases. There are 0:12:29.280 --> 0:12:30.719 some cases where they're just not going to see the 0:12:30.760 --> 0:12:33.240 eyed eye. But here you could sort of see them 0:12:33.280 --> 0:12:36.280 going back and forth during the argument back in the fall, 0:12:36.440 --> 0:12:40.880 where um, you know, the Chief Justice clearly wasn't satisfied 0:12:40.880 --> 0:12:44.120 with what either side of the in the case was arguing. 0:12:45.160 --> 0:12:48.480 But but he was also wondering whether Justice Briars standard 0:12:48.520 --> 0:12:52.920 that he threw out, which during the argument, UH was 0:12:52.960 --> 0:12:56.880 going to be specific enough, and apparently Justice Briar persuaded 0:12:56.960 --> 0:13:00.160 him that indeed there were clear enough standards that we 0:13:00.200 --> 0:13:03.120 could go with this functionally equivalent standard tell you that 0:13:03.200 --> 0:13:06.480 what happens behind the scenes is often far more interesting 0:13:06.960 --> 0:13:09.920 than what we get to see from the oral arguments 0:13:10.120 --> 0:13:15.199 and from the decisions. The Supreme Court overturned a decades 0:13:15.240 --> 0:13:19.560 old precedent, deciding that states must require unanimous juries to 0:13:19.640 --> 0:13:23.440 convict defendants of serious crimes, but the six to three 0:13:23.440 --> 0:13:27.960 decision highlighted deep divides among the justices over adhering to 0:13:28.000 --> 0:13:31.480 their past opinions. Joining me is Bloomberg. Supreme Court reporter 0:13:31.559 --> 0:13:34.439 Greg store So, Greg tell us a little about the case. 0:13:34.920 --> 0:13:38.680 There were two states, Louisiana and Oregon, that for some 0:13:38.920 --> 0:13:42.760 crimes still said that an eleven and one or even 0:13:42.800 --> 0:13:47.559 attended to jury verdict is enough to convict somebody, and 0:13:47.679 --> 0:13:50.959 the Supreme Court, over ruling in nineteen seventy two ruling 0:13:51.040 --> 0:13:53.120 that had allowed states to do that, they said to 0:13:53.160 --> 0:13:56.839 that is a violation of the Constitution six Amendment. Greg 0:13:56.960 --> 0:13:59.600 was an unusual line up six to three, with Chief 0:13:59.679 --> 0:14:04.520 Justice John Roberts and Justices Samuel Alito and Elena Kagan 0:14:04.600 --> 0:14:08.240 in the descent. Was their descent related to the issues 0:14:08.320 --> 0:14:12.360 presented or to whether precedent should be followed here? It 0:14:12.440 --> 0:14:15.640 was really about the latter. Justice Alito wrote for the group, 0:14:15.800 --> 0:14:18.480 and most of what he focused on was not whether 0:14:18.559 --> 0:14:22.320 the nineteen seventy two decision was correct, but whether this 0:14:22.400 --> 0:14:26.160 would be too much of a burden on Louisiana and 0:14:26.160 --> 0:14:29.440 Oregon to have to change their systems and to have 0:14:29.880 --> 0:14:33.560 some convictions called into question. Justice Alito said that there 0:14:33.640 --> 0:14:36.680 was a real reliance interests, that there are thousands of 0:14:36.720 --> 0:14:39.840 cases that could potentially be upended or at least affected 0:14:40.200 --> 0:14:44.600 by this ruling, and that notion of adherence to precedent's 0:14:44.600 --> 0:14:46.840 starry descizes is something that is one of the most 0:14:46.840 --> 0:14:50.240 important issues for the Court going forward. Very interesting to 0:14:50.280 --> 0:14:53.120 me that that was how they divided in this case. Well, 0:14:53.320 --> 0:14:57.400 Justice Kagan has been sort of talking up the importance 0:14:57.440 --> 0:15:00.920 of precedence for a while, But seeing the Chiefs and 0:15:01.280 --> 0:15:05.880 Alito agreeing with her about precedent, does that vode well 0:15:06.200 --> 0:15:08.440 for some of the cases the Court is going to 0:15:08.520 --> 0:15:12.600 decide involving, for example, abortion rights at least a marker. 0:15:12.680 --> 0:15:15.960 It's very very interesting. Justice Kagan is really the Court's 0:15:16.040 --> 0:15:20.120 champion of starry decisive right now. She consistently says, let's 0:15:20.120 --> 0:15:23.720 not overturn precedence, Let's not overturn precedents. Justice Alito is 0:15:23.760 --> 0:15:26.720 somebody who has been willing to overturn precedents. You may 0:15:26.760 --> 0:15:29.000 recall he wrote the ruling a couple of years ago 0:15:29.040 --> 0:15:31.440 in a case called Janie that said that if you're 0:15:31.520 --> 0:15:35.440 a government employee, you have a constitutional right not to 0:15:35.800 --> 0:15:38.240 pay fees to your union to cover the cost of 0:15:38.280 --> 0:15:41.600 representation and not overturned an earlier Supreme Court decision. And 0:15:41.640 --> 0:15:44.400 then Chief Justice Roberts is somebody who you can sort 0:15:44.400 --> 0:15:48.400 of see Justice Kagan often trying to persuade to bring 0:15:48.440 --> 0:15:52.120 over onto her side. He is somebody who also doesn't 0:15:52.160 --> 0:15:55.320 want to overturn more precedents than the Court really needs to. 0:15:55.480 --> 0:15:57.960 So it's a bit of a monthly collection there, but 0:15:58.080 --> 0:16:03.120 definitely something worth watch going forward. Now. Justice Neil Gorsuch 0:16:03.280 --> 0:16:06.560 wrote the opinion for the Court, and he said that 0:16:06.920 --> 0:16:10.600 starry decisive isn't supposed to be the art of methodically 0:16:10.680 --> 0:16:13.800 ignoring what everyone knows to be true. Yeah, he made 0:16:13.880 --> 0:16:17.040 interesting Yeah, he made the point that nobody was really 0:16:17.080 --> 0:16:19.600 defending this nineteen seventy two ruling. It was a bit 0:16:19.600 --> 0:16:22.200 of an odd One is a case called Apodaca, where 0:16:22.200 --> 0:16:24.680 the ruling was four one four and the one was 0:16:24.800 --> 0:16:28.200 Justice Louis Powell, who adopted an approach that really nobody 0:16:28.240 --> 0:16:31.320 else agreed with, and over the two decades, the Court 0:16:31.360 --> 0:16:34.120 pretty clearly as a whole didn't agree with his approach, 0:16:34.320 --> 0:16:37.480 and yet that president still stood letting states allowed non 0:16:37.560 --> 0:16:39.720 unanimous jury verdict. So Justice of course it was making 0:16:39.720 --> 0:16:42.280 the point that, look, nobody agrees that this should still 0:16:42.280 --> 0:16:44.640 be the law here. You know, we shouldn't do some 0:16:45.080 --> 0:16:48.560 mechanical application of of starry decisives and stick with it. 0:16:48.600 --> 0:16:51.320 We should do what's right and overturn it. So now 0:16:51.680 --> 0:16:56.480 only two states, Louisiana and Oregon, have this kind of rules. 0:16:56.640 --> 0:16:59.320 So what does this mean on the ground. Yeah, and 0:16:59.560 --> 0:17:02.280 they don't even to have it for everything. Leanna, for example, 0:17:02.680 --> 0:17:06.480 requires unanimity for crimes committed in twenty nineteen or later, 0:17:06.560 --> 0:17:09.840 so this only applied to previous crimes. One issue of 0:17:09.880 --> 0:17:13.119 the Supreme Court left open is whether it will apply 0:17:13.359 --> 0:17:18.040 retroactively to convictions that have already gone up on appeal 0:17:18.119 --> 0:17:21.919 and been finalized. Justice Course has suggested pretty strongly that 0:17:21.960 --> 0:17:25.320 it would not apply retroactively, and Justice Kavana, on a 0:17:25.359 --> 0:17:29.520 concurring opinion, flat out said it would not apply retroactively, 0:17:29.800 --> 0:17:32.760 but the dissent by Justice on Leado said, boy, I'm 0:17:32.800 --> 0:17:35.480 not so sure about that. Based on our precedency, it 0:17:35.560 --> 0:17:38.040 might apply retroactively. And that's what I'm really worried about, 0:17:38.160 --> 0:17:41.639 is this prospect that thousands of convictions will be overturned. 0:17:41.920 --> 0:17:45.760 How about the prospect that in the controversial cases that 0:17:45.800 --> 0:17:49.200 are coming up, we're going to see a lot of opinions. Yeah, 0:17:49.280 --> 0:17:52.000 this really doesn't bode well for for the court. Speaking 0:17:52.000 --> 0:17:55.080 with consensus type opinions, they were all over the map. 0:17:55.119 --> 0:17:57.760 We haven't even talked about some of the other opinions, 0:17:57.960 --> 0:18:00.639 Justice Thomas, Justice, so do my your You know, a 0:18:00.640 --> 0:18:03.800 lot of people wanted to say something. This Court hasn't 0:18:03.880 --> 0:18:06.760 yet sort of hit its rhythm in terms of having 0:18:07.200 --> 0:18:11.440 justices agreeing with one another on large numbers of points. 0:18:11.480 --> 0:18:13.159 Where still at the point with this court where we 0:18:13.200 --> 0:18:16.200 have a lot of different justices going off in different directions, 0:18:16.280 --> 0:18:19.920 and we saw that into this opinion. So which justice 0:18:20.000 --> 0:18:25.000 did not write a concurring opinion? Oh, let's see George's 0:18:26.119 --> 0:18:30.280 Justice Ginsburgh didn't write, Justice Brier didn't write. They just 0:18:30.320 --> 0:18:32.320 went along with what Justice Corsage said. One of the 0:18:32.359 --> 0:18:34.359 interesting dynamics of this is that with the exception of 0:18:34.359 --> 0:18:37.199 Justice Keig and the more liberal justices were with justice 0:18:37.200 --> 0:18:41.440 corsets in the majority. Part perhaps because this is an 0:18:41.440 --> 0:18:44.160 issue that a lot of people think, including justice courses 0:18:44.200 --> 0:18:47.680 to Kavanaugh ends up hurting racial minorities. It hurts lack 0:18:47.720 --> 0:18:50.639 defendants injurors because it means that if there's only one 0:18:50.760 --> 0:18:53.680 or two black jurors on a jury and they take 0:18:53.720 --> 0:18:56.080 a different view from the majority, that they may not 0:18:56.200 --> 0:18:59.240 be able to stop a guilty verdict from going forward. 0:18:59.440 --> 0:19:03.119 Thanks Greg, that's Bloomberg New Supreme Court reporter Gregg's store. 0:19:06.760 --> 0:19:09.720 Thanks for listening to the Bloomberg Law Podcast. You can 0:19:09.760 --> 0:19:13.520 subscribe and listen to the show on Apple Podcasts, SoundCloud, 0:19:13.560 --> 0:19:17.480 and on Bloomberg dot com slash podcast. I'm June Brosso. 0:19:17.960 --> 0:19:19.280 This is Bloomberg