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

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Speaker 2: Defense Secretary Pete Hegseth has made no secret of his

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Speaker 2: disdain of transgender people serving in the military.

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Speaker 3: No more pronouns, no more climate change obsession, no more

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Speaker 3: emergency vaccine mandates, no more dudes in dresses. We're done

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Speaker 3: with that.

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Speaker 2: But now a federal appeals court has found that the

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Speaker 2: administration's order banning transgender people in the military was based

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Speaker 2: on unconstitutional animis and the bare desire to harm a

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Speaker 2: politically unpopular group, and the DC's Circuit Court affirmed a

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Speaker 2: district court's order blocking the administration from expelling the transgender

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Speaker 2: plaintiffs from the military. My guest is Shannon Mittner, the

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Speaker 2: legal director of the National Senate Or for LGBTQ Rights.

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Speaker 2: He argued for the transgender troops at the DC Appellate Court. Shannon,

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Speaker 2: will you start by explaining President Trump's executive order, which

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Speaker 2: didn't specifically mention the word transgender, but I mean explain

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Speaker 2: what that order did.

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Speaker 4: Almost immediately upon taking off, as one of the very

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Speaker 4: first things that President Trump did was once again, as

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Speaker 4: he had done during his first term, ban transgender people

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Speaker 4: from serving in the military, and it's an order that

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Speaker 4: doesn't use the word transgender for the nefarious reason that

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Speaker 4: this administration takes the view that transgender people aren't real,

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Speaker 4: that they don't exist, that the belief that your transgender

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Speaker 4: is some kind of delusion or something like that. So

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Speaker 4: it uses terms like people who assert a false gender

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Speaker 4: identity or who have attempted to change their sex. The

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Speaker 4: terminology is just reflective of this administration's animus towards transgender people.

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Speaker 2: Your arguments at the court below and at the DC

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Speaker 2: circuit were they based on equal protection? Tell us about

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Speaker 2: your arguments.

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Speaker 4: Yes, they were based upon a very long standing, well

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Speaker 4: established equal protection doctrine, which is really simple, is that

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Speaker 4: when a government policy is based on disapproval or dislike

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Speaker 4: of a particular group of people rather than some legitimate

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Speaker 4: governmental interest, that violates the most basic precept of equal

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Speaker 4: protection that the line has to treat everyone equally. And

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Speaker 4: obviously a policy or a law that is premised on, well,

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Speaker 4: we just don't like your kind of person just fails

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Speaker 4: that test in the most elemental way.

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Speaker 2: And the administration never presented any evidence that transgender troops

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Speaker 2: failed to meet military standards or perform poorly compared to

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Speaker 2: other service members. I mean, was there any evidence supporting

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Speaker 2: the administration's reasons for kicking out transgender troops.

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Speaker 5: No.

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Speaker 4: And it was really just such an extraordinary experience to

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Speaker 4: be in you know, there room before the Federal District Judge,

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Speaker 4: Judge Rayes and have her asking the representatives for the military.

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Speaker 4: So are these assertions that you're making that are made

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Speaker 4: in this executive order that transgender people are just simply

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Speaker 4: by definition, you know, undisciplined, selfish, lack the moral character

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Speaker 4: to serve? Do you have any evidence to back that up?

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Speaker 4: And you know, the attorney had to answer honestly again

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Speaker 4: and again, no, No, this is an opinion. We don't

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Speaker 4: have evidence to support it.

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Speaker 2: What was their argument?

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Speaker 4: They'd fall back on something called, you know, the military

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Speaker 4: difference doctrine, just that the military can do whatever it likes.

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Speaker 4: They are taking the very extreme position that courts don't

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Speaker 4: have any role to play in scrutinizing military decisions. And

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Speaker 4: I think we hear a lot of rhetoric like that

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Speaker 4: from Secretary Headseeth. I mean, that's this administration's view that

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Speaker 4: the military should be you know, above and beyond the law.

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Speaker 2: The decision was two to one, with an Obama pointing

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Speaker 2: Clinton appointing the majority a Trump appointee in descent.

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Speaker 4: Tell us about the majority opinion, Well, the majority opinion

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Speaker 4: just took a real careful look at what Judge Reyes

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Speaker 4: had written and found in her decision. I mean, you know,

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Speaker 4: there was extensive evidence presented below in front of her.

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Speaker 4: I mean, we put on for the planeoffs, just so

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Speaker 4: much evidence about their service records, which are exemplary, you know,

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Speaker 4: the awards they've received, many of them been deployed in

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Speaker 4: combat situations. We also put on declarations from former secretaries

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Speaker 4: of the Army, Navy, Air Force, who remarkably stepped forward.

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Speaker 4: You know, those folks don't really like to get involved

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Speaker 4: in litigation, but I think they were so concerned by

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Speaker 4: this policy. They provided us with statements that there was,

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Speaker 4: to their knowledge, having been in office when transuring people

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Speaker 4: were serving in the military, like no reason to discharge them,

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Speaker 4: that they're meeting the same standards as everyone else. And

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Speaker 4: then the government just put on effectively no evidence. So

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Speaker 4: based on that, the majority opinion affirmed Judge Reis's preliminary

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Speaker 4: injunction stopping the government from kicking transgender people out of

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Speaker 4: the military.

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Speaker 2: So they said that hegsa's policy was arbitrary and fueled

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Speaker 2: by unconstitutional animists and the bear desire to harm a

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Speaker 2: politically unpopular group. Can you point to where the court

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Speaker 2: found that. Were there statements from heg Seth or was

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Speaker 2: it just the general policy?

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Speaker 4: Well, sadly, yeah, there's plenty of statements from Heagseth. They're

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Speaker 4: painful to repeat, you know, but one of them, for example,

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Speaker 4: was he was speaking to a group of service members

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Speaker 4: and a public speech and said, you know, no more

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Speaker 4: dudes in dresses. Just a lot of really disparaging language

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Speaker 4: about transgender people, and a lot of statements that made

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Speaker 4: it very clear that this is a politically motivated policy

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Speaker 4: that's just openly based on dislike of transgender people, and

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Speaker 4: it's got nothing to do with whether these individuals can

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Speaker 4: meet the same standards as everyone else, which undisputedly they

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Speaker 4: have been doing and can do.

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Speaker 2: Justin Walker wrote a descent. He's the Trump appointee, he said,

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Speaker 2: but because the plaintiffs are service members, not civilians, and

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Speaker 2: because we are judges not generals, I respectfully dissent.

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Speaker 4: He is falling back on that military difference doctrine and saying, look,

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Speaker 4: I believe it's not my role as a judge to

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Speaker 4: scrutinize what the military is doing. You know. The problem

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Speaker 4: with that is that you just can't reconcile that with

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Speaker 4: the Supreme Court cases on this. I mean, the Supreme

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Speaker 4: Court has over and over again very much scrutinize what

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Speaker 4: the military does and has affirmed and reaffirmed the importance

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Speaker 4: of doing that. And I'll tell you on one of

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Speaker 4: the justices who's been most vocal about the need to

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Speaker 4: do that is Justice Thomas. Clarence Thomas has been probably

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Speaker 4: the most vehement proponent on the Court of why it's

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Speaker 4: so important for the Court to stand up for the

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Speaker 4: content institutional rights of individual service members when they are

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Speaker 4: violated by a military policy.

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Speaker 2: And the decision is sort of a split decision. It

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Speaker 2: distinguishes between transgender people who are currently serving in the

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Speaker 2: military and those who want to join the military.

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Speaker 4: Yes, that is true. The decision addresses, you know, what

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Speaker 4: really is the primary and overwhelming injustice here, which is

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Speaker 4: kicking out people who have served in many cases for years,

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Speaker 4: who've served honorably, who've served ably, been recognized, promoted, awarded

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Speaker 4: like just arbitrarily summarily expelling those folks for no reason

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Speaker 4: and with no kind of serious process or anything like that.

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Speaker 4: They're just like, you're out because your transgender, We're going

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Speaker 4: to kick you out. That is the core injustice here

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Speaker 4: and that's what this appellate decision focused on. There is

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Speaker 4: another issue about whether transgender people should be able to

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Speaker 4: join the military and have the same opportunity to apply

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Speaker 4: and join, and on that one, they sent that back.

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Speaker 4: They sent that issue back to Judge Reyes with the

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Speaker 4: instruction that she should do an independent analysis of the

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Speaker 4: harms imposed by that part of the policy. She'd kind

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Speaker 4: of folded them all into just one category when she

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Speaker 4: was looking at the harms. So during disagreeing with her

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Speaker 4: ultimate conclusion that that policy also violates the Constitution, but

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Speaker 4: they're saying, hey, you need to go back and go

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Speaker 4: through the process the step of independently analyzing the harms

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Speaker 4: imposed by not allowing transgender people to join the military.

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Speaker 2: The government could ask the full Circuit to hear the

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Speaker 2: case on bank. But do you think it might skip

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Speaker 2: that step? Considering that Democrats outnumber Republicans on the DC Circuit.

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Speaker 4: Parties are always given that opportunity to ask the entire

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Speaker 4: court to rehear a case if they wish to. You know,

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Speaker 4: I don't know if the government will do that or not.

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Speaker 4: I do expect they will. Where or the other you know,

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Speaker 4: asked the US Supreme Court to step in here and

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Speaker 4: issue an emergency stay on that shadowed docket, They've already

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Speaker 4: indicated in fact, that that's what they intend to do.

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Speaker 4: I will say, though, that I am very optimistic that

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Speaker 4: the Supreme Court will not do that. It would be

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Speaker 4: pretty extraordinary if they did it in this situation, because

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Speaker 4: this ruling applies just to the twenty eight planoffs, who

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Speaker 4: are current transgender service members in this case, and it

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Speaker 4: relies on a very well established principle of law that

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Speaker 4: a policy based on disapproval of a group of people

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Speaker 4: is unconstitutional. So, unlike some of the other cases where

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Speaker 4: the Court has stepped in and posed an emergency stay,

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Speaker 4: there really is no basis to do that here.

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Speaker 2: So it only applies to the twenty eight service members.

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Speaker 2: I mean, there are about a thousand estimated transgender people

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Speaker 2: in the military. What about them?

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Speaker 4: Yeah, that maybe even a bit larger than that. Well,

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Speaker 4: right now, this rule applies only to the twenty eight

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Speaker 4: named plaintiffs in this case. Two points about that, though

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Speaker 4: it does set a legal precedent, so other transgender service

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Speaker 4: members can bring their own case and rely on that precedent.

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Speaker 4: And also, we are asking Judge Reyes to turn our

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Speaker 4: action into a class action, and if she agrees to

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Speaker 4: do that, then that will provide an opportunity for her

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Speaker 4: ruling to apply to every other transgender service member. And

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Speaker 4: that's penning in front of her. We have a hearing

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Speaker 4: on our motion to do that. She'll be hearing that

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Speaker 4: at the end of the month June thirtieth.

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Speaker 2: You mentioned the Supreme Court. So the Supreme Court did

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Speaker 2: lift an order from a federal judge in Washington State

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Speaker 2: that blocked the military from enforcing the ban. And the

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Speaker 2: Supreme Court has been hostile let's say to transgender rights,

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Speaker 2: LGBTQ rights in general. Why are you so confident that

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Speaker 2: they won't reverse here?

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Speaker 4: Well, you know, I would say they haven't friendly to

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Speaker 4: LGBT people lately. I will say that, although let's not

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Speaker 4: forget as recently as twenty twenty, this is the court

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Speaker 4: that ruled that federal sex discrimination law categorically protects transgender

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Speaker 4: people from discrimination. It's support that did recently uphold Tennessee's

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Speaker 4: ban on medical care for transgender young people. But I

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Speaker 4: will also note that the way the majority decision talked

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Speaker 4: about those young people was very respectful. The Shilling decisions,

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Speaker 4: the one you're talking about, where the Court stepped in

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Speaker 4: and did on its shadow docket, issued an emergency stay

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Speaker 4: of a similar preliminary in junction coming out of a

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Speaker 4: federal district court in the state of Washington. There are

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Speaker 4: two important differences, though. That emergency stay was issued just

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Speaker 4: days before the Court issued a very important decision disapproving

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Speaker 4: of the so called nationwide injunctions, and the injunction in

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Speaker 4: that case was a nationwide injunction. One of the judges

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Speaker 4: on the panel that just decided the Talbot opinion that

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Speaker 4: we're discussing today, Judge Rogers, voiced her opinion that that

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Speaker 4: and it is why the Supreme Court issued that stay

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Speaker 4: in Chilling is because it was a nationwide injunction. It

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Speaker 4: also rested on a different equal protection theory that is

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Speaker 4: more novel and has not yet been addressed by the

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Speaker 4: US Supreme Court, which is the level of scrutiny that

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Speaker 4: should apply to discrimination against transgender people. The decision here.

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Speaker 4: It's not a nationwide injunction, and it doesn't rest on

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Speaker 4: any open question of equal protection law. It rests on

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Speaker 4: a very settled principle again that government can't just do

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Speaker 4: something because it doesn't lack a group of people.

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Speaker 2: Coming up, we'll talk about the other cases challenging the

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Speaker 2: transgender military ban and the Trump administration's attempt to get

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Speaker 2: the medical records of transgender kids. I'm June Grosso and

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Speaker 2: you're listening to Bloomberg. A federal appeals court has found

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Speaker 2: that the administration's order banning transgender people in the military

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Speaker 2: was based on unconstitutional animis and the baar desire to

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Speaker 2: harm a politically unpopular and the DC Circuit Court affirmed

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Speaker 2: a district court's order blocking the administration from expelling the

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Speaker 2: transgender plaintiffs from the military. I've been talking to Shannon Mittner,

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Speaker 2: the legal director of the National Center for LGBTQ Rights.

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Speaker 2: He argued for the transgender plaintiffs at the DC Appellate Court. Shannon,

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Speaker 2: were there any questions that you were asked during the

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Speaker 2: arguments that stumped you?

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Speaker 4: No, nothing that's stump me. But one thing that was

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Speaker 4: very frustrating at the time is one of our key

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Speaker 4: arguments is that the government sometimes says, oh, this is

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Speaker 4: about transgender people, this is about people with a particular

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Speaker 4: medical condition. But one of our key points is that

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Speaker 4: that cannot possibly be the case because for every single

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Speaker 4: other medical condition, if somebody who's already in the military

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Speaker 4: has a particular medical condition, there is not one single

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Speaker 4: other medical condition that results in automatic discharge. In every

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Speaker 4: single other case, the military will go through an individualized

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Speaker 4: assessment to see if that person can still do the job.

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Speaker 4: That's just the ordinary process. So if this is really

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Speaker 4: about transgener people having a medical condition, and why not

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Speaker 4: follow that same process here. But at the argument, the

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Speaker 4: attorney for the military kept trying to assert that that

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Speaker 4: wasn't true, that there are other conditions that result in

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Speaker 4: automatic discharge, and we were like, no, your honors, there

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Speaker 4: are not. And that really became quite a heated debate,

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Speaker 4: you know, at that oral arguments so frustrating, because the

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Speaker 4: record on this is crystal clear. So I was so

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Speaker 4: gratified to see that in the opinion, the judges obviously

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Speaker 4: confirmed that, did their own research and confirmed that what

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Speaker 4: we were saying was one hundred percent correct. And that

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Speaker 4: is one of the primary foundations of the decision that

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Speaker 4: you can see this is based on bias and prejudice,

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Speaker 4: because the military doesn't treat any other medical condition this way.

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Speaker 2: What was the reaction of your clients when you told

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Speaker 2: them about this victim.

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Speaker 4: You know, of course, they feel very vindicated. They have

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Speaker 4: already suffered so much harm. They and their families have

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Speaker 4: suffered so much harm. This has been humiliating, incredibly stressful ordeal.

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Speaker 4: I mean, these are folks who are have devoted their

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Speaker 4: entire professional lives to military service, and it's more than

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Speaker 4: just a job, it's an entire way of life. Many

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Speaker 4: of them come from military families. Having their ability to

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Speaker 4: needs to serve just cut off in the way that

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Speaker 4: it has been has been excruciating for them, and it

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Speaker 4: has also of course left them and just you know,

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Speaker 4: incredibly financially precarious situation. I mean, they feel very vindicated,

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Speaker 4: and they think they know at this point it's going

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Speaker 4: to be very difficult to undo the practical and financial

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Speaker 4: harm that they have suffered. But the principle here is

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Speaker 4: very very important to them, and it means a lot

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Speaker 4: to have a federal appellate court, you know, say to

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Speaker 4: the world what's happened to these people is extremely unfair.

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Speaker 4: I mean, this is just a very important change in

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Speaker 4: the status quo. You know, we've been in kind of

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Speaker 4: limbo for a year and a half now after winning

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Speaker 4: the victory and the District Corps then having it stayed,

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Speaker 4: So to have this decision come down and really change

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Speaker 4: that status quo and once again tell the government you

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Speaker 4: cannot enforce this band against these plaintiffs who are who

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Speaker 4: have served so courageously, that means a lot. It's a

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Speaker 4: very big turn of events with this litiation.

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Speaker 2: And I was somewhat following these cases on transgender people

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Speaker 2: in the military, but I wasn't clear on whether or

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Speaker 2: not they were actually thrown out of the military while

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Speaker 2: the case was pending.

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Speaker 4: They are still in the military. Yes, I think it's

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Speaker 4: been confusing for a lot of people because of those

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Speaker 4: early victories and then you know, the news was, hey,

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Speaker 4: you know, these courts have held this band is unconstitutional.

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Speaker 4: But then of course the Supreme Court stepped in and

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Speaker 4: state it issued to stay, and then that we had

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Speaker 4: stay in our case as well. So yeah, we've been

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Speaker 4: in limbo and the military has been able to move forward,

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Speaker 4: but they have been so disorganized. This whole process has

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Speaker 4: been so chaotic, it's been very unclear what is going

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Speaker 4: to be the process for kicking these people out. They've

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Speaker 4: just sort of held them in this torturous state of uncertainty,

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Speaker 4: and they are just now, I mean, here's the irony.

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Speaker 4: They're just now starting to take very active steps to

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Speaker 4: initiate separation proceedings. So this decision came at a very

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Speaker 4: timely moment to put a stop to that, at least

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Speaker 4: right now for these twenty eight plaintiffs and hopefully soon

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Speaker 4: for other transgender service members as well.

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Speaker 2: There are other challenges by transgender service members now that

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Speaker 2: this decision is on the books. Are those cases unnecessary?

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Speaker 3: No?

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Speaker 4: I mean really, right now, the only two that are

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Speaker 4: still going are the one in Washington State, and that

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Speaker 4: one is proceeding to trial, and there's discovery happening there,

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Speaker 4: and the planets in that case are seeking a permanent injunction.

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Speaker 4: They're a preliminary injunction has stayed. There's the Talbot case

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Speaker 4: proceeding in Washington DC. Those are the only two cases.

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Speaker 4: There was another case in New Jersey that was dismissed,

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Speaker 4: and then there's another case challenging the denial of retirement

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Speaker 4: benefits to some of these transgender service members. That is

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Speaker 4: a separate case. It's actually a separate legal issue, but

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Speaker 4: it's just another indication of how much hostility the government

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Speaker 4: is directing it these folks. I mean, there's a group

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Speaker 4: of transgender service members who were awarded retirement benefits because

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Speaker 4: they earned them. They earned them, and then in just

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Speaker 4: a completely inexplicable punitive act, the military took those away

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Speaker 4: for no reason. They can't even offer a reason. So

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Speaker 4: there's a separate case that is challenging that denial of

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Speaker 4: retirement benefits.

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Speaker 2: And Jenan, I wanted to ask you about a different issue,

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Speaker 2: and that is the Trump administration's demands for confidential information

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Speaker 2: about minors that have gotten gender affirming care. And they're

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Speaker 2: asking hospitals to hand over patient records, including birth dates,

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Speaker 2: social Security numbers, and addresses. And the Justice Department has

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Speaker 2: argued that the information is being sought to investigate possible

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Speaker 2: fraud or unlawful off label promotion of drugs. And last month,

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Speaker 2: a federal judge quashed the Trump administration subpoenas for confidential

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Speaker 2: patient information from Rhode Island's largest hospital that provides gender

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Speaker 2: firming care to minors, and they were looking for birth date,

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Speaker 2: social security numbers, and addresses of every patient who receive

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Speaker 2: transgender care over the past five years.

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Speaker 4: One thing's happening there that is just so outrageous, and

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Speaker 4: I don't think people realize it is that, to my knowledge,

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Speaker 4: the federal government has never before, I mean, in the

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Speaker 4: entire history of our country, tried to use the criminal

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Speaker 4: subpoena process to get people's private medical records, and that

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Speaker 4: is what they are now doing. They got shut down.

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Speaker 4: They were using civil subpoenas and like, we had eight

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Speaker 4: different federal district courts say no, you have no legitimate

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Speaker 4: reason to be going after these private medical records. You

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Speaker 4: cannot do that. And they're like, fine, we'll drop the

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Speaker 4: civil subpoenas. And then they popped up with criminal subpoenas

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Speaker 4: and they secured in Texas and you know, went to

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Speaker 4: a very conservative district in the state of Texas, blatant

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Speaker 4: form shopping to get criminal subpoenas against hospitals that have

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Speaker 4: no connection with Texas what soever. Everything about it is

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Speaker 4: so outrageous that it's obviously in running around those eight

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Speaker 4: court decisions that they're going to Texas when that has

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Speaker 4: no connection with any of these hospitals, and that they're

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Speaker 4: using criminal, criminal subpoenas. And I mean part of that

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Speaker 4: is those are completely shrouded in secrecy. That's the grand

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Speaker 4: jury process. It is notoriously super secret. These families don't

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Speaker 4: even have a way to know that their children's medical

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Speaker 4: records are being seized by the federal government, and then

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Speaker 4: there's no limits on what the federal government can do

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Speaker 4: with that information once it gets it. I mean, it's

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Speaker 4: really a big deal.

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Speaker 2: Why do you think they're looking for the medical records,

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Speaker 2: I mean, to get the doctors who perform these procedures.

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Speaker 4: They want to scare the hell out of people. They

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Speaker 4: know there's no there there there's no criminal law that's

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Speaker 4: being violated here. They know that this is like mafia

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Speaker 4: like tactics. I mean, this is just an attempt to

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Speaker 4: scare the hell out of people, scare hospitals away from

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Speaker 4: providing the care, scare doctors away from providing the care,

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Speaker 4: and scare parents away from, you know, protecting their own

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Speaker 4: children and supporting their own children. They want to make

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Speaker 4: all of those groups, including parents, feel like they are

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Speaker 4: in serious dread of being criminally prosecuted if they do

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Speaker 4: anything to support a transgender child. I mean, really, I

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Speaker 4: just speechless with the level of use of power here.

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Speaker 4: It's really out of control.

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Speaker 2: Thanks so much for joining me, Shannon. It's your first

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Speaker 2: time on the show, but I hope it won't be

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Speaker 2: your last. That's Shannon Mittner, the legal director of the

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Speaker 2: National Center for LGBTQ Rights. The Supreme Court's conservatives have

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Speaker 2: made another decision favoring Republicans in the redistricting frenzy. The

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Speaker 2: Court sent off with its decision last month, eviscerating the

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Speaker 2: Voting Rights Act in a six to three vote, with

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Speaker 2: Republican appointees in the majority and Democratic appointees in descent.

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Speaker 2: The Court reinstated a Republican friendly congressional map in Alabama

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Speaker 2: that allows the state to eliminate a majority black House

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Speaker 2: district in the midterms, despite the fact that a three

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Speaker 2: judge panel found that the state had intentionally discriminated against

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Speaker 2: black people when drawing that map. The ruling caps a

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Speaker 2: run of redistricting decisions that collectively have boyd Republican Shays

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Speaker 2: to retain their narrow majority in the House. Joining me

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Speaker 2: is Bloomberg, Supreme Court reporter Greg Store. Greg, I'm not

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Speaker 2: going to make you go back all the way through

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Speaker 2: all the times the Alabama legislature has been at the

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Speaker 2: Supreme Court and this, that, and the other. Just go

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Speaker 2: back to the latest decision by the three judge panel.

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Speaker 5: The three judge panel said that Alabama needed to keep

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Speaker 5: a second majority black district, and it said that for

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Speaker 5: two reasons. First of all, the court said Alabama had

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Speaker 5: previously engaged in intentional discrimination and defied earlier court rulings

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Speaker 5: by trying to draw a key district that had just

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Speaker 5: a little bit less than a majority of black voters.

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Speaker 5: And secondly, the lower court said, the primary election is

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Speaker 5: on August the eleventh, and there's just not enough time

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Speaker 5: for the state to shift everybody to different districts in

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Speaker 5: time for that election.

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Speaker 1: And so by keeping the existing map.

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Speaker 5: Which has the two majority black districts, we're actually reducing

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Speaker 5: the amount of confusion that would occur over the next

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Speaker 5: few weeks.

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Speaker 2: And I just want to point out that that three

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Speaker 2: judge panel consisted of two Trump appointees and Clinton appointees.

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Speaker 2: So now tell us about this unsigned Supreme Court decision

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Speaker 2: of just a little over three pages rejecting the findings

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Speaker 2: of a three judge panel that Alabama had intentionally discriminated

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Speaker 2: against black voters, and that panel consisted of two Trump

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Speaker 2: appointees and a Clinton appointee.

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Speaker 5: It was an unsigned opinion, but it was basically a

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Speaker 5: six 's three ruling with the six conservative justices the

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Speaker 5: six Republican appointees in the majority. And what they said

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Speaker 5: is that the lower court got it wrong in multiple respects.

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Speaker 5: It said, among other things, this big ruling the Supreme

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Speaker 5: Court issue on April twenty ninth that really scaled back

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Speaker 5: the use of the Voting Rights Act and districting, that

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Speaker 5: that undercut the claim against Alabama. It also said that

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Speaker 5: the lower court was too quick to presume that Alabama

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Speaker 5: legislators were acting with racial animus, that they should have

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Speaker 5: accorded more of a presumption of good faith for the legislature.

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Speaker 1: And finally, the Supreme Court.

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Speaker 5: Said the sixth and the majority said that if there's

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Speaker 5: going to be chaos leading up to the election, that's.

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Speaker 1: The state's choice.

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Speaker 5: It's not for a lower court to intervene and say

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Speaker 5: we're going to do something because it's going to reduce

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Speaker 5: the confusion that's on Alabama, and that they want to

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Speaker 5: proceed this way they can.

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Speaker 2: Liberal Justice Sonya Sotomayor wrote the dissent for the liberals,

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Speaker 2: and she said that the decision corrodes the rule of law.

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Speaker 1: Well, she didn't hold back.

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00:25:50,440 --> 00:25:52,840
Speaker 5: She wrote for all three of the court's liberals, and

438
00:25:52,960 --> 00:25:56,760
Speaker 5: she said that the Court is disregarding both democratic values

439
00:25:56,800 --> 00:25:59,639
Speaker 5: and the rule of law. She said that when the

440
00:25:59,680 --> 00:26:02,520
Speaker 5: Supreme Court issued that Voting Rights Act decision a few

441
00:26:02,560 --> 00:26:08,160
Speaker 5: weeks ago, it explicitly left open the possibility that there

442
00:26:08,160 --> 00:26:12,359
Speaker 5: could be a showing of intentional discrimination by a state

443
00:26:12,440 --> 00:26:15,679
Speaker 5: against minority voters, and she said that's exactly what the

444
00:26:15,680 --> 00:26:19,120
Speaker 5: lower court found in this case. She also pointed out

445
00:26:19,160 --> 00:26:23,280
Speaker 5: that this Alabama case has a really long, entangled history

446
00:26:23,320 --> 00:26:26,320
Speaker 5: that I won't walk all the way through, but the

447
00:26:26,359 --> 00:26:30,120
Speaker 5: Supreme Court has actually ruled in this very case after

448
00:26:30,200 --> 00:26:33,560
Speaker 5: hearing arguments before, and what it said in that case was,

449
00:26:33,920 --> 00:26:37,480
Speaker 5: we're going to uphold this lower court decision that says

450
00:26:37,520 --> 00:26:39,920
Speaker 5: that there has to be a second district where black

451
00:26:40,000 --> 00:26:44,040
Speaker 5: voters can select the candidate of their choice. And Sodavirus

452
00:26:44,080 --> 00:26:48,080
Speaker 5: says that the Supreme Court has effectively ignored that. And finally,

453
00:26:48,119 --> 00:26:50,320
Speaker 5: she pointed out what the lower court pointed out.

454
00:26:50,200 --> 00:26:52,960
Speaker 1: Which is that this is going to invite chaos.

455
00:26:53,320 --> 00:26:56,639
Speaker 5: The Director of Elections has suggested it's going to be

456
00:26:56,640 --> 00:27:00,320
Speaker 5: near impossible to shift everybody into the proper districts in

457
00:27:00,400 --> 00:27:05,280
Speaker 5: time for the August eleventh primary election, and so we

458
00:27:05,320 --> 00:27:07,800
Speaker 5: will see how that works out in Alabama, but she

459
00:27:07,880 --> 00:27:10,680
Speaker 5: at least is skeptical that it will be a smooth process.

460
00:27:11,000 --> 00:27:16,760
Speaker 2: So this is the first test since the Justice's weekend

461
00:27:16,840 --> 00:27:20,280
Speaker 2: I say, eviscerated the Voting Rights Act. Is this sending

462
00:27:20,320 --> 00:27:24,400
Speaker 2: a message that even findings of intentional discrimination are not enough?

463
00:27:24,520 --> 00:27:25,880
Speaker 2: I mean, what's the message here?

464
00:27:26,359 --> 00:27:29,680
Speaker 5: It certainly suggests that that might be the case. That

465
00:27:29,880 --> 00:27:32,919
Speaker 5: was the area that the Court said it was leaving

466
00:27:32,920 --> 00:27:36,119
Speaker 5: open when it ruled in the Footing Rights Act case.

467
00:27:35,960 --> 00:27:37,359
Speaker 1: On April twenty ninth.

468
00:27:37,760 --> 00:27:40,439
Speaker 5: But in this case, a lower court, as you pointed

469
00:27:40,440 --> 00:27:43,520
Speaker 5: out in a lot of detail, explain why in its view,

470
00:27:44,000 --> 00:27:46,760
Speaker 5: this was different from that case because it involved that

471
00:27:46,840 --> 00:27:51,639
Speaker 5: intentional discrimination, because they said Alabama legislators were trying to

472
00:27:51,760 --> 00:27:56,080
Speaker 5: limit black voting power, and the Supreme Court said and

473
00:27:56,480 --> 00:27:59,080
Speaker 5: even was willing to do it in this emergency posture

474
00:27:59,080 --> 00:28:01,280
Speaker 5: where it didn't have all lot of time to hear

475
00:28:01,400 --> 00:28:02,600
Speaker 5: arguments and that sort of thing.

476
00:28:02,680 --> 00:28:03,800
Speaker 1: It was willing to say.

477
00:28:03,640 --> 00:28:06,080
Speaker 5: We're sure enough that the lower court got it wrong

478
00:28:06,200 --> 00:28:09,119
Speaker 5: that we are going to block that ruling and allow

479
00:28:09,200 --> 00:28:12,399
Speaker 5: this district that the lower court thinks is the product

480
00:28:12,440 --> 00:28:15,399
Speaker 5: of intentional discrimination. We're going to allow that map to

481
00:28:15,640 --> 00:28:17,320
Speaker 5: be in place for the November election.

482
00:28:18,080 --> 00:28:20,639
Speaker 2: Greg when you look at the redistricting decisions from the

483
00:28:20,720 --> 00:28:26,520
Speaker 2: Court since December, they've overwhelmingly favored Republicans, and like in

484
00:28:26,560 --> 00:28:30,159
Speaker 2: this case, it's always by six to three votes, with

485
00:28:30,640 --> 00:28:34,960
Speaker 2: the Republican appointees in the majority and the Democratic appointees

486
00:28:35,080 --> 00:28:38,120
Speaker 2: in dessent. So it's hard to look at these decisions

487
00:28:38,160 --> 00:28:42,920
Speaker 2: as anything but political, despite how much the Chief protests

488
00:28:43,040 --> 00:28:45,280
Speaker 2: that they're not political actors.

489
00:28:46,120 --> 00:28:48,840
Speaker 5: But it is certainly having a big effect, and that

490
00:28:48,920 --> 00:28:52,560
Speaker 5: effect is to help the Republican Party, in particular for

491
00:28:52,640 --> 00:28:57,440
Speaker 5: the November election. So there are basically five states in

492
00:28:57,480 --> 00:29:00,000
Speaker 5: the cycle where the Supreme Court has acted.

493
00:28:59,680 --> 00:29:01,080
Speaker 1: In read discting cases.

494
00:29:01,440 --> 00:29:04,520
Speaker 5: They are not all the same, but Republicans have won

495
00:29:04,560 --> 00:29:06,560
Speaker 5: four of them. So there was the big Voting Rights

496
00:29:06,600 --> 00:29:10,000
Speaker 5: Act case, which was a Louisiana case, There's this one.

497
00:29:10,160 --> 00:29:13,080
Speaker 5: There's a case where they blocked the Lower Court ruling

498
00:29:13,160 --> 00:29:15,800
Speaker 5: that would have required a new map in New York.

499
00:29:16,160 --> 00:29:18,840
Speaker 5: And then there was Texas where they intervened to let

500
00:29:19,000 --> 00:29:22,080
Speaker 5: Texas Republicans change the map there. Now, the Texas case

501
00:29:22,120 --> 00:29:24,920
Speaker 5: was very similar to a California case later on that

502
00:29:25,040 --> 00:29:28,000
Speaker 5: ended up helping Democrats, letting them put a new map

503
00:29:28,040 --> 00:29:30,920
Speaker 5: in place. Then the Big Voting Rights Act decision also

504
00:29:31,120 --> 00:29:35,600
Speaker 5: spawned some redistricting in states like Tennessee, eliminating some majority

505
00:29:35,640 --> 00:29:39,560
Speaker 5: black and Democratic leaning districts. And the upshot of that

506
00:29:39,640 --> 00:29:42,240
Speaker 5: will be that there will be a number of districts

507
00:29:42,280 --> 00:29:44,000
Speaker 5: that used to be fairly safe.

508
00:29:43,760 --> 00:29:45,360
Speaker 1: Democratic districts that are now going.

509
00:29:45,320 --> 00:29:48,880
Speaker 5: To be fairly safe Republican districts in November. And we

510
00:29:48,960 --> 00:29:51,960
Speaker 5: haven't even talked about other types of cases election cases

511
00:29:51,960 --> 00:29:54,520
Speaker 5: the Supreme Court has that might also affect the election

512
00:29:54,600 --> 00:29:55,240
Speaker 5: in November.

513
00:29:55,720 --> 00:29:59,400
Speaker 2: The per sale principle. I've been discussing that a lot lately,

514
00:29:59,520 --> 00:30:04,480
Speaker 2: and I'm confused about what the Supreme Court considers the

515
00:30:04,520 --> 00:30:06,440
Speaker 2: percel principle to be.

516
00:30:06,920 --> 00:30:08,520
Speaker 1: You joined Justice Soda Mayora.

517
00:30:08,560 --> 00:30:12,120
Speaker 5: There the percel principle, and it's named after the two

518
00:30:12,160 --> 00:30:14,480
Speaker 5: thousand and six case that invoked the idea in the

519
00:30:14,520 --> 00:30:15,040
Speaker 5: first place.

520
00:30:15,120 --> 00:30:15,800
Speaker 1: The idea is.

521
00:30:15,760 --> 00:30:19,600
Speaker 5: That federal judges shouldn't intervene at kind of the last

522
00:30:19,640 --> 00:30:22,720
Speaker 5: minute to change the rules of a state run election.

523
00:30:23,560 --> 00:30:27,360
Speaker 5: And the Supreme Court over the years has started to

524
00:30:27,360 --> 00:30:31,760
Speaker 5: make pretty clear that while that restricts lower court.

525
00:30:31,400 --> 00:30:33,680
Speaker 1: Federal judges, it doesn't restrict them.

526
00:30:34,000 --> 00:30:36,719
Speaker 5: So in this case, one of the things the Supreme

527
00:30:36,720 --> 00:30:38,920
Speaker 5: Court said it didn't use the word percel, but that

528
00:30:39,000 --> 00:30:42,160
Speaker 5: was the principle it used, was that when this three

529
00:30:42,280 --> 00:30:45,360
Speaker 5: judge panel reinstated the earlier.

530
00:30:45,040 --> 00:30:48,120
Speaker 1: Map and a ruling that came down just a week

531
00:30:48,200 --> 00:30:48,960
Speaker 1: or two ago.

532
00:30:49,440 --> 00:30:55,040
Speaker 5: That that was interjecting itself improperly in the way the

533
00:30:55,080 --> 00:30:58,080
Speaker 5: state wanted to conduct the election with this other map,

534
00:30:58,200 --> 00:31:01,440
Speaker 5: and it didn't matter to the Supreme Court that the

535
00:31:01,480 --> 00:31:04,520
Speaker 5: only reason the lower court had to act again was

536
00:31:04,560 --> 00:31:08,720
Speaker 5: because the Supreme Court itself had previously vacated a decision

537
00:31:09,000 --> 00:31:11,959
Speaker 5: that everybody thought up until a month ago was going

538
00:31:12,000 --> 00:31:13,880
Speaker 5: to govern the fall election.

539
00:31:14,200 --> 00:31:17,400
Speaker 1: So the Supreme Court is restricting.

540
00:31:16,920 --> 00:31:19,920
Speaker 5: Federal courts, It is giving a lot of leeway to

541
00:31:20,720 --> 00:31:24,720
Speaker 5: states that want a redistrict, particularly for partisan purposes, and

542
00:31:25,080 --> 00:31:29,160
Speaker 5: it is leaving open the possibility that it itself might

543
00:31:29,920 --> 00:31:34,560
Speaker 5: cause some confusion as long as it is moving in

544
00:31:34,640 --> 00:31:38,400
Speaker 5: support of those principles of letting states craft their own

545
00:31:38,440 --> 00:31:40,640
Speaker 5: maps and keeping lower court.

546
00:31:40,440 --> 00:31:42,440
Speaker 1: Judges from overstepping their authority.

547
00:31:42,480 --> 00:31:45,000
Speaker 2: It's nice to be able to exempt yourself from a rule.

548
00:31:45,440 --> 00:31:48,680
Speaker 2: Tell us about the cases that are yet to be

549
00:31:48,760 --> 00:31:51,600
Speaker 2: decided that we're waiting for decisions and that might also

550
00:31:51,680 --> 00:31:52,760
Speaker 2: affect elections.

551
00:31:53,360 --> 00:31:56,280
Speaker 5: There are two significant election decisions that we're expecting the

552
00:31:56,320 --> 00:31:58,040
Speaker 5: Court to decide sometime in the next month.

553
00:31:58,400 --> 00:32:00,400
Speaker 1: One is a campaign finance case.

554
00:32:00,520 --> 00:32:03,920
Speaker 5: It involves what right now is a limit on the

555
00:32:04,520 --> 00:32:07,960
Speaker 5: course so called coordinated party expenditures, in other words, money

556
00:32:08,000 --> 00:32:12,719
Speaker 5: that political parties can spend in coordination with their candidates,

557
00:32:13,280 --> 00:32:16,120
Speaker 5: and the Supreme Court sure seems like it's.

558
00:32:16,000 --> 00:32:17,680
Speaker 1: Going to overturn those limits.

559
00:32:17,720 --> 00:32:20,680
Speaker 5: This is a court that very much sees campaign finance

560
00:32:20,760 --> 00:32:23,840
Speaker 5: restrictions as a problem for free speech, and if they

561
00:32:23,880 --> 00:32:26,480
Speaker 5: do that, it will give parties a lot more power,

562
00:32:26,560 --> 00:32:29,840
Speaker 5: and at least for November, will probably help the Republican

563
00:32:29,880 --> 00:32:32,880
Speaker 5: Party because they have a lot more cash on hand

564
00:32:32,960 --> 00:32:36,400
Speaker 5: right now than the Democratic Party does, and they will

565
00:32:36,440 --> 00:32:38,840
Speaker 5: also be able to use this money. When you spend

566
00:32:38,840 --> 00:32:41,160
Speaker 5: money in coordination with a candidate, you can get these

567
00:32:41,480 --> 00:32:45,280
Speaker 5: discounted rates that candidates can get, so that's one that

568
00:32:45,280 --> 00:32:48,160
Speaker 5: the Republican Party is almost certain to win. The second

569
00:32:48,160 --> 00:32:52,120
Speaker 5: case has to do with the deadlines for mail in ballots.

570
00:32:52,280 --> 00:32:55,640
Speaker 5: There's a case in which the argument is that the

571
00:32:55,680 --> 00:32:59,680
Speaker 5: federal government Congress has set election day for a particular

572
00:32:59,760 --> 00:33:05,800
Speaker 5: date in November, and all ballots have to be received.

573
00:33:05,280 --> 00:33:08,720
Speaker 1: By that day. A number of states right now have

574
00:33:08,840 --> 00:33:09,320
Speaker 1: laws that.

575
00:33:09,320 --> 00:33:11,239
Speaker 5: Say as long as you mail them, as long as

576
00:33:11,480 --> 00:33:14,240
Speaker 5: the ballots are postmarked by that day, will give you

577
00:33:14,280 --> 00:33:17,120
Speaker 5: a few extra days for them to actually arrive. The

578
00:33:17,160 --> 00:33:22,360
Speaker 5: Supreme Court could might knock out those laws. There's about

579
00:33:22,360 --> 00:33:25,480
Speaker 5: fourteen of those laws, plus another fifteen that apply only

580
00:33:25,520 --> 00:33:28,680
Speaker 5: to military and overseas votes. And again, this is the

581
00:33:28,720 --> 00:33:32,560
Speaker 5: case that has divided the litigants by party. Republicans are

582
00:33:32,600 --> 00:33:35,000
Speaker 5: the ones who are arguing for those strict limits, and

583
00:33:35,120 --> 00:33:39,800
Speaker 5: Democrats are the ones who say that grace periods are appropriate.

584
00:33:39,960 --> 00:33:42,960
Speaker 5: Remains to be seen exactly how much effect that has,

585
00:33:43,120 --> 00:33:46,320
Speaker 5: but certainly to the extent you can read something from

586
00:33:46,320 --> 00:33:49,040
Speaker 5: what side everybody's on, it's a case where if the

587
00:33:49,080 --> 00:33:52,320
Speaker 5: Supreme Court adopts that strict limit, it could help Republicans.

588
00:33:52,440 --> 00:33:55,480
Speaker 2: They're announcing decisions again tomorrow morning, so we'll see if

589
00:33:55,480 --> 00:33:58,920
Speaker 2: those two cases are among them. Thanks so much, Greg.

590
00:33:59,320 --> 00:34:03,400
Speaker 2: That's Bloomberg Supreme Court Reporter Greg Store and that's it

591
00:34:03,480 --> 00:34:06,040
Speaker 2: for this edition of The Bloomberg Law Show. Remember you

592
00:34:06,080 --> 00:34:08,520
Speaker 2: can always get the latest legal news on our Bloomberg

593
00:34:08,640 --> 00:34:12,239
Speaker 2: Law podcasts. You can find them on Apple Podcasts, Spotify,

594
00:34:12,440 --> 00:34:17,480
Speaker 2: and at www dot Bloomberg dot com slash podcast Slash Law,

595
00:34:17,880 --> 00:34:20,440
Speaker 2: And remember to tune into The Bloomberg Law Show every

596
00:34:20,520 --> 00:34:24,400
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso

597
00:34:24,560 --> 00:34:26,160
Speaker 2: and you're listening to Bloomberg