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

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Speaker 1: It's been called Wall Street's Trial of the Decade, a

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Speaker 1: chest of the government's ambitious market manipulation theory, and on Wednesday,

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Speaker 1: a Manhattan jury convicted Arkago's founder Bill Huang of fraud

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Speaker 1: and market manipulation in a scheme that led to the

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Speaker 1: implosion of that family office in twenty twenty one and

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Speaker 1: cost investment banks more than ten billion dollars. Manhattan US

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Speaker 1: attorney Damian Williams said that Wang had lied to banks

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Speaker 1: to obtain billions of dollars that was used to inflate

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Speaker 1: the stock price of check and media stocks in his portfolio.

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Speaker 2: The wies fed the inflation, and the inflation fed more lies.

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Speaker 2: Round and round it went. But last year the music stopped,

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Speaker 2: the bubble burst, the prices dropped, and when they did,

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Speaker 2: billions of dollars nearly evaporated overnight.

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Speaker 1: During the two month trial, prosecutors took jurors inside the

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Speaker 1: secretive family office through the testimony of bank insiders, former

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Speaker 1: Archa ghost employees, including two star cooperating witnesses, and the

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Speaker 1: unassailable evidence of recorded phone calls between Arcago's staffers and

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Speaker 1: banks in the chaotic seventy two hours before the collapse.

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Speaker 3: Frankly, you know, we don't see how we're going to

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Speaker 3: be able to meet those margin calls fully by tomorrow

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Speaker 3: evening at six o'clock, and so I wanted to get

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Speaker 3: ahead of that and just describe what we are doing

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Speaker 3: and so that you know where we're coming from on

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Speaker 3: this and to give you our assurance that we will

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Speaker 3: get through this very quickly.

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Speaker 4: Yeah, we's got free and she competent, Bill gonna be okay.

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Speaker 1: But the standout recording, this is Bill, Bill long Well

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Speaker 1: Wang's conference call with some of the biggest investment banks

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Speaker 1: in the world on the night before the implosion.

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Speaker 4: We are very confident in our ability to wind down

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Speaker 4: these names given little more time. I mean, today was

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Speaker 4: a shock to me that some of these went bounds.

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Speaker 1: At trial, the defense argued it was an unforeseeable black

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Speaker 1: Swan event and that Huang was just an aggressive investor

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Speaker 1: who believed in his holdings. Former CFO Patrick Halligan was

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Speaker 1: also convicted of fraud and conspiracy, joining me to securities

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Speaker 1: law expert James Park, a professor at UCLA Law School.

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Speaker 1: Prosecutors claimed that Huang had engaged in a pump and

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Speaker 1: brag scheme. Explain what he was convicted.

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Speaker 5: Of, well, he was convicted of two things. The first

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Speaker 5: was lying to various banks that enabled to to finan

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Speaker 5: a strategy of accumulating significant amounts in stock of a

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Speaker 5: number of publicly traded companies, so that was an independent

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Speaker 5: set of charges. The second theory was that he manipulated

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Speaker 5: the price of those stocks, that he manipulated them up

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Speaker 5: in various ways through various techniques, and was reckless in

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Speaker 5: a sense in his manipulation, so that the price of

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Speaker 5: those stocks did not reflect supplying demand or investor demand,

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Speaker 5: but rather was mainly determined by the trading of his

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Speaker 5: hedge funds. Those are the two independent, although somewhat related

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Speaker 5: theories that the jury concluded for the most part that

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Speaker 5: the prosecution had met its burden of proof beyond a

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Speaker 5: reasonable doubt.

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Speaker 1: Would you characterize this as a big win for prosecutors

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Speaker 1: in the Southern District.

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Speaker 5: It's a huge win, and it was not a sporegone

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Speaker 5: conclusion that they would win on the market manipulation charges.

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Speaker 5: I think that the very difficult case the line to

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Speaker 5: the banks. To me, I thought that was an easier theory.

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Speaker 5: I would have been surprised if they did not win that.

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Speaker 5: But the second set of charges of market manipulation, I

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Speaker 5: think could have gone the other way, or it could

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Speaker 5: have been a hung jury on that aspect of it.

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Speaker 5: And I think that this is really going to add

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Speaker 5: some key to the prohibition of market manipulation, which has

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Speaker 5: been part of the Securities Act since the very beginning.

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Speaker 5: That was one of the primary concerns of the drafters

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Speaker 5: of the federal securities laws was the various manipulative tactics

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Speaker 5: that were being used prior to the market crash of

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Speaker 5: the nineteen twenties to inflate the price of stocks. That

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Speaker 5: element of that statue, though, has gone fairly dormant for decades,

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Speaker 5: and I think that this is really going to be

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Speaker 5: a signature case with respect to market manipulation with respect

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Speaker 5: to the stock market.

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Speaker 1: I want to get the prosecutor's presentation of the case.

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Speaker 1: The jury heard from a cavalcade of bank insiders and

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Speaker 1: market experts, Arcago's staffers, and then the government's two star witnesses.

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Speaker 1: What did you think of the way the prosecution framed

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Speaker 1: and presented the case.

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Speaker 5: I think they did a great job but one of

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Speaker 5: the challenges of a case like this is you have

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Speaker 5: a lajer just individuals who are selected randomly from the

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Speaker 5: voting population. Those individuals do not necessarily have a sophisticated

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Speaker 5: understanding finance and how the industry works. And so I

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Speaker 5: think part of the challenge of the case that the

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Speaker 5: prosecutors understood was that you needed to provide a foundation

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Speaker 5: and educate the jury about what exactly the misconduct was.

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Speaker 5: And bringing in a number of industry experts enabled the

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Speaker 5: prosecutors to do that. And having insiders within the funds

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Speaker 5: who are cooperating witnesses I think was important, not only

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Speaker 5: because they were able to provide testimony that implicated Quang

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Speaker 5: and the financial officer of our Kagos, but they also

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Speaker 5: provided some background about the fund and how it worked

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Speaker 5: and how trading works. And so it's really the job

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Speaker 5: of the prosecutor to educate the jury and tally coherent story,

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Speaker 5: which they successfully did.

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Speaker 1: The judge throughout the trial was trying to keep the

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Speaker 1: trial moving along, and when they had, you know, mind

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Speaker 1: numbing stock charts and technical slides over and over, he said,

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Speaker 1: the jury looks like it's bored to tears were going

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Speaker 1: over the same point over and over again. That might

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Speaker 1: have helped the prosecution.

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Speaker 5: Actually, I think so. I think it's a very experienced

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Speaker 5: trial judge in the Southern District of New York who

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Speaker 5: is very very knowledgeable about juries and how they work,

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Speaker 5: how trials work. And you know, he said that on

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Speaker 5: both sides, tried to get both sides to move along,

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Speaker 5: and that's you know, part of what a trial judge

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Speaker 5: said supposed to do is manage the case. And you

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Speaker 5: know that sometimes involved making suggestions about how the trial

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Speaker 5: is going. And he's there in the courtroom watching the

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Speaker 5: jury and he's hearing the testimony. So you know, his

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Speaker 5: commentary I think was interesting to hear, and it, you know,

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Speaker 5: reflects I think the concern of cases like this is

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Speaker 5: that they become just so complicated that the jury is

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Speaker 5: not really able to understand the case. And so I

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Speaker 5: think his goal in making these comments is to, you know,

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Speaker 5: make sure that we have a fair trial here, a

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Speaker 5: trial that is going to result in a coherent body

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Speaker 5: of facts that the jury can understand and make their

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Speaker 5: decision based upon.

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Speaker 1: The prosecutors seem to do a good job of sort

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Speaker 1: of bringing the jurors into Archagos and the trading there,

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Speaker 1: showing how closely Huang guided his traders with an ongoing

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Speaker 1: zoom call throughout a trading day, and how he was

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Speaker 1: a micro manager and tough on them, with one of

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Speaker 1: the prosecution's star witnesses, the firm's former head trader, William Timido,

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Speaker 1: describing how Huang told him to lie and directed him

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Speaker 1: to manipulate stock prices.

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Speaker 5: Yes, they brought these events to light, and that since

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Speaker 5: another challenge of pieces like this is that you know,

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Speaker 5: this is something that happened a few years ago, and

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Speaker 5: you're not there, you're not actually within the fund and

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Speaker 5: seeing the panic and the environment, and that's part of

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Speaker 5: telling the story with these various witnesses. And I think

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Speaker 5: another thing the prosecution was trying to do was establish

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Speaker 5: the culture of the firm, which was clearly dominated by

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Speaker 5: mister Wang. And I think part of the reason they

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Speaker 5: needed to do this was that one of the defenses

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Speaker 5: that Huang made, essentially was that some of these lies

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Speaker 5: were told by subordinates, and Wang himself never said very

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Speaker 5: much to the bank, and the defense might be that

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Speaker 5: my subordinates are doing this without my knowledge, and they're

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Speaker 5: just doing this on their own and I think part

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Speaker 5: of establishing the way the firm worked was an effort

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Speaker 5: to show that these subordinates are not acting independently. They

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Speaker 5: are controlled by mister Wong, and so it's implausible that

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Speaker 5: they would have lied without Fung's knowledge and direction.

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Speaker 1: So the victims here weren't average investors, they were banks.

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Speaker 1: And the defense had planned to argue that the banks

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Speaker 1: were sophisticated players and they knew the risks of dealing

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Speaker 1: with a family office not required to publicly disclose its holdings,

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Speaker 1: but they went ahead because of the feast they earned.

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Speaker 1: But Judge Hellerstein really restricted the defense's ability to cast

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Speaker 1: blame on the banks. Do you think that hurt the

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Speaker 1: defense a lot? And might be a point on appeal.

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Speaker 5: It's a really good question, and certainly evidentiary issues like

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Speaker 5: that can certainly be raised on appeal, and that's typically

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Speaker 5: what the appellate judges will look at. They will look

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Speaker 5: at legal decisions made by the trial court. I mean,

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Speaker 5: that could be a basis of an argument that the

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Speaker 5: defendants did not get a fair trial in the case.

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Speaker 5: On the other hand, you know, the argument that the

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Speaker 5: judge would make to exclude that evidence is that it's

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Speaker 5: not directly relevant on the legal issue of you know,

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Speaker 5: was somebody lying, were their lives? You know, narrowing the issue,

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Speaker 5: narrowing the evidence so as not to confuse the jury

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Speaker 5: is something that is typically within the discretion of the

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Speaker 5: trial court. And Judge Hellestein made the call that these

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Speaker 5: sorts of arguments were just not relevant on the central

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Speaker 5: issue of whether or not there was a fraud. And

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Speaker 5: you know, there's an argument in support of what he did,

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Speaker 5: and that the question of whether the banks, whether they

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Speaker 5: were responsible to some extent, that might be more of

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Speaker 5: a broader policy issue as opposed to an issue as

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Speaker 5: to whether or not there was a legal violation. And

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Speaker 5: I think that securities laws do not necessarily depend upon

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Speaker 5: how sophisticated the victim was. Even very sophisticated investors can

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Speaker 5: be fooled by a lot and we, to some extent

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Speaker 5: all rely upon trust in this industry. And even if

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Speaker 5: we are sophisticated and the banks know they should be careful,

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Speaker 5: there are situations where they can be victims of fraud.

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Speaker 5: And the other thing that struck me about this case

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Speaker 5: was just how much power this particular fund had and

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Speaker 5: just the amount of resources at its disposal, and so

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Speaker 5: you know, the reality of this world is that you know, banks,

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Speaker 5: they're still large players, but they may be less significant

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Speaker 5: players relative to these huge private funds that have huge

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Speaker 5: amounts of wealth and resources. And so there's an argument

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Speaker 5: that they're equals, right, and equals can certainly defraud each other.

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Speaker 5: And so I think that does those sorts of issues

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Speaker 5: that this particular ruling raises.

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Speaker 1: And the jury deliberated for nearly two days. One of

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Speaker 1: the jurors said he was on the fence during most

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Speaker 1: of the trial because he had worked on Wall Street

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Speaker 1: for more than three decades. But he said Huang condemned

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Speaker 1: himself because he was trading on such a large scale

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Speaker 1: and it had a manipulative impact on stocks.

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Speaker 5: It's a great point, and the main argument as to

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Speaker 5: why this would not be criminal manipulation is that you know,

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Speaker 5: these practices happened, right putting in a bunch of orders

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Speaker 5: at the end of the trading day and using your

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Speaker 5: trading in order to move the price. That is something

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Speaker 5: that happens a lot. The difference was the extent of

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Speaker 5: the trading, the power that this fund had to control.

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Speaker 5: In many cases, more than half of the publicly available stock,

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Speaker 5: and that's that's different. That puts you in a somewhat

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Speaker 5: different position than somebody who, you know, maybe own three

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Speaker 5: or four percent of a company's stock. You just have

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Speaker 5: more ability to move the prices. And in terms of

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Speaker 5: victim harm, the public was harmed by the manipulation because

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Speaker 5: if you're buying at these inflated prices and the stock

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Speaker 5: price collapses, you lost money.

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Speaker 4: Right.

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Speaker 5: So, certainly the theory about lying to the banks that

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Speaker 5: involve sophisticated investors, but we're talking about a manipulation like

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Speaker 5: this that is also going to affect ordinary retail investors.

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Speaker 5: And you know, just the amount of the trading sheer

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Speaker 5: power that he had and the abuse of that, along

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Speaker 5: with evidence that you know this was intended to manipulate

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Speaker 5: and artificially increase the prices that turned out to be sufficient.

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Speaker 1: Do you think that the definition of market manipulation could

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Speaker 1: be a point that defense raises on appeal?

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Speaker 5: It'll be an issue and there are not a whole

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Speaker 5: lot of cases defining what market man is. Are there

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Speaker 5: manipulative activities? Secondly, and most importantly, was their manipulative intent?

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Speaker 5: Was their fraudulent intent? And I don't expect the second

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Speaker 5: Circuit to take this as an opportunity to more precisely

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Speaker 5: define market manipulation. I think what they'll do is apply

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Speaker 5: these broad principles in relation to the facts that were

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Speaker 5: established at trial, and I think that this will be

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Speaker 5: an example of things that has to happen for there

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Speaker 5: to be market manipulation, and I suspect the second Circuit

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Speaker 5: will be careful to limit the decision to its facts.

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Speaker 5: You know, they will highlight some of the unusual aspects

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Speaker 5: of this situation. Particularly, I think they will highlight the

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Speaker 5: fact that the hedge fund had significant amounts of the

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Speaker 5: public float of these stocks, and so I think they

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Speaker 5: will highlight those unusual circumstances so that they will not

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Speaker 5: necessarily cover various practices that may be fairly common in

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Speaker 5: the industry. I think they will really try to limit

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Speaker 5: and really write a very fact specific opinion. But even

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Speaker 5: if they do that, it's still significant because this will

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Speaker 5: be an iconic case. It'll be a reference point for

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Speaker 5: future market manipulation prosecutions. It'll be something that I think

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Speaker 5: a lot of compliance officers are going to read very carefully,

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Speaker 5: and I think it will in some ways change industry practices.

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Speaker 1: So Jim he's going to be sentenced on October twenty eighth,

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Speaker 1: and theoretically each count carries a maximum of twenty years

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Speaker 1: in prison. Do you have any feel for what he's

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Speaker 1: likely to get.

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Speaker 5: I think it'll be a significant sentence, given you know,

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Speaker 5: the seriousness of the charges, the impact on investors. The

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Speaker 5: first set of charges is really about lie about fraud,

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Speaker 5: and then that is something that court take very seriously.

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Speaker 5: On the market manipulation charges, maybe the argument would be

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Speaker 5: that the law was somewhat unclear on this point. It's

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Speaker 5: what I would argue as a defense attorney that he

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Speaker 5: just didn't know what exactly the law was, and so

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Speaker 5: he should get a little bit of leniency with respect

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Speaker 5: to the market manipulation claims. So I would expect that

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Speaker 5: the bulk of the sentence would most likely be relating

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Speaker 5: to the lying to the banks. I think that is

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Speaker 5: the one that is sort of more clearly an established

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Speaker 5: crime that the judge will recognize that there really is

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Speaker 5: no excuse for what happened there. So I think there

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Speaker 5: will be a serious sentence here. And you know, you

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Speaker 5: think about the reference point is maybe Sam Bankman Freed's sentence.

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Speaker 5: Think about the theory there is that he misappropriated customer

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Speaker 5: funds so he could speculate on various crypto investments. And

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Speaker 5: you could argue that in this case, it was not

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Speaker 5: stealing funds, but it was lying to get funds in

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Speaker 5: order to artificially inflate these various positions. And so so,

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Speaker 5: you know, could it be in the same range of

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Speaker 5: Sam Bankman freed sentence I believe was in the neighborhood

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Speaker 5: of around thirty years or so. Possibly. I imagine there

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Speaker 5: are other considerations though, that will come into play that

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Speaker 5: you know, the defense attorneys will argue make this case different.

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Speaker 5: But I would be surprised if the prosecutors did not

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Speaker 5: at least try to argue for a similar type of sentence.

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Speaker 1: One difference is that Huang is sixty years old, whereas

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Speaker 1: Sam Bankman Freed is thirty two. So a long sentence

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Speaker 1: might mean life in prison for Wang. We'll see what

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Speaker 1: the judge decides on October twenty eighth. Thanks so much, Jim.

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Speaker 1: That's Professor James Park of UCLA Law School coming up next.

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Speaker 1: The impact of the Supreme Court curbing federal agency power

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Speaker 1: is already being felt. I'm June Grosso and you're listening

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Speaker 1: to Bloomberg during oral arguments. In January, Liberal Justice Katanji

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Speaker 1: Brown Jackson warned about the consequences avoiding the Chevron Doctrine,

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Speaker 1: a forty year old precedent in which courts deferred to

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Speaker 1: a federal agency's reasonable interpretation of unclear laws.

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Speaker 6: The way I've been thinking about Chevron is Congress has

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Speaker 6: given that policy choice to the agency, and my concern

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Speaker 6: is that if we take away something like Chevron, the

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Speaker 6: Court will then suddenly become a policy maker by majority

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Speaker 6: rule or not making policy determinations.

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Speaker 1: But the six conservative justices ignored her concerns and threw

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Speaker 1: out Chevron, and it took less than a week for

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Speaker 1: Justice Jackson's fears to be realized. Several federal judges barred

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Speaker 1: agencies from enforcing Biden administration rules, substituting their opinion for

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Speaker 1: that of the Departments of Education and Health in human Services,

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Speaker 1: the rules prohibiting transgender discrimination in public schools and health

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Speaker 1: care were the first to fall. Joining me is an

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Speaker 1: expert in administrative law, Carrie Coliniesi, a professor at the

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Speaker 1: University of Pennsylvania Law School. I want to start with

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Speaker 1: the broad question your reaction to the Supreme Court's decision

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Speaker 1: eliminating the Chevron doctrine.

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Speaker 7: Well, we knew that the Court, or at least a

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Speaker 7: good number of justices on the Court, were critical of

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Speaker 7: the Chevron decisions. So in some sense it's not terribly surprising,

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Speaker 7: But in another sense, it is quite dramatic, because, first

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Speaker 7: of all, the Supreme Court seldom overturns any of its decisions.

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Speaker 7: That's a rare event. But also in this case, this

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Speaker 7: had been a decision that was one of the most

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Speaker 7: widely cited of all Supreme Court decisions, and certainly one

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Speaker 7: of the most widely cited in the administrative law world,

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Speaker 7: that area of law that governs the operation of government agencies.

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Speaker 7: So there's a real potential for a lot of mischief

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Speaker 7: and confused usion and further contestation when the Court overturns

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Speaker 7: the decision that's been so widely cited like this one.

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Speaker 1: It seems judges have been emboldened to override federal agencies.

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Speaker 1: Last week, just four days after the decision eliminating Chevron,

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Speaker 1: a judge in Kansas blocked an Education Department rule that

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Speaker 1: bars discrimination against children in schools based on their gender identity,

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Speaker 1: and two days after that, federal judges in Mississippi, Florida,

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Speaker 1: and Texas all barred the Department of Health and Human

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Speaker 1: Services from enforcing a rule that prohibits healthcare discrimination against

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Speaker 1: people based on their sexual orientation or gender identity. Are

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Speaker 1: you surprised that the courts are acting so quickly?

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Speaker 8: Not really.

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Speaker 7: First of all, you know, there are many district court

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Speaker 7: judges that have I think an affinity with the majority

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Speaker 7: on the Supreme Court in their skepticism toward administrative agencies

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Speaker 7: and the exercise of authority by administrative agencies, and certainly

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Speaker 7: on some of these hot button kinds of issues today

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Speaker 7: in American culture wars. The lower courts have been caught

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Speaker 7: up in these kinds of matters even before the Supreme

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Speaker 7: Court overturned Chevron, So that's not terribly surprising. On the

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Speaker 7: other hand, it is also the case that the Supreme

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Speaker 7: Court has sent a very strong signal to lower court

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Speaker 7: judges to take on administrative agencies, to embrace your skepticism

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Speaker 7: and assert your power over these agencies. That is, I

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Speaker 7: think the dramatic symbolic import of the Court's decision in

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Speaker 7: the Lower Bright Enterprises case that overturn Chevron.

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Speaker 1: So in those three cases it turned on the agency's

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Speaker 1: interpretation of the word sex under the Affordable Care Act

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Speaker 1: and Title nine.

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Speaker 8: So are these.

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Speaker 1: Judges then substituting their own interpretation of what the word

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Speaker 1: means for the agency? And I mean, how are they

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Speaker 1: coming up with this?

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Speaker 7: Well, that's what the Supreme Court has told lower court judges.

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Speaker 7: Their responsibility is to find the one and only one

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Speaker 7: best meaning of a statute based upon the judge's own

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Speaker 7: sense of what the statute should mean, not giving the

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Speaker 7: kind of deference that the agency would have been afforded

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Speaker 7: in the past under the Chevron doctrine. The Chevron doctrine

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Speaker 7: came into play when statutes were ambiguous what does sex mean?

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Speaker 7: A statute could mean gender, It could mean anything related

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Speaker 7: to gender, you know. It could be narrow, it could

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Speaker 7: be broad. And that ambiguity under Chevron would have often

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Speaker 7: been seen as justifying an inquiry into whether the agency

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Speaker 7: had been delegated the authority to make the call about

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Speaker 7: what that ambiguous phrase or term meant, And as long

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Speaker 7: as the agency was reasonable, courts were obligated to go

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Speaker 7: with what the agency held. That's now changed, and in

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Speaker 7: the face of ambiguity, the obligation of the lower Court

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Speaker 7: is to substitute its own decision, and maybe it will

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Speaker 7: agree with the agency, maybe it won't. It certainly should

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Speaker 7: listen to and gear the argument from the agency, but

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Speaker 7: it doesn't have to follow it in the same way

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Speaker 7: that it was supposed to under the Chevron doctrine.

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Speaker 1: Does the agency argument get any kind of weight outside

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Speaker 1: of you know, any litigant coming up and arguing a case.

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Speaker 1: Is there any more weight at all to an agency's interpretation?

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Speaker 7: Well, not really, although it's also not entirely clear what

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Speaker 7: the Supreme Court majority thinks should be given. You know,

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Speaker 7: there are passages in the lower Bright decision that say,

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Speaker 7: first of all, the agency should have its interpretation be

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Speaker 7: treated with respectful consideration. It may well have the power

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Speaker 7: to persuade the Court on or an older decision called Skidmore.

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Speaker 7: And it's also possible if you could read some passages

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Speaker 7: in the Loco Bright decision where the Supreme Court majority

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Speaker 7: has recognized that there may be evidence that Congress actually

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Speaker 7: intended to delegate to the agency the decision about what

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Speaker 7: the statute means. So in all those situations, the agency's

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Speaker 7: interpretation will have some weight, but it won't have the

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Speaker 7: same kind of weight that it would have under the

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Speaker 7: Chevron doctrine.

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Speaker 1: The district courts that I mentioned were all conservative. So

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Speaker 1: what happens if the same issue comes up in a

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Speaker 1: different district court, let's say in New York or California,

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Speaker 1: and the court has a different interpretation of what the

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Speaker 1: word sex means. What happens?

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Speaker 8: Then?

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Speaker 7: Yeah, we're going to end up with a situation where

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Speaker 7: we have competing judges, each giving their own best interpretation

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Speaker 7: of the statute, and within their districts, or if it's

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Speaker 7: at the Court of Appeals level, within their circuits, there

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Speaker 7: will be competing definitions. Maybe the Supreme Court will step

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Speaker 7: in and resolve some of these, but the Supreme Court

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Speaker 7: only here's what sixty or seventy or so cases per year.

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Speaker 7: So we're going to be living with I think a

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Speaker 7: lot more flux and conflict, and maybe one might even

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Speaker 7: say chaos in the law as these different judges reach

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Speaker 7: potentially different interpretations on their own accord. Following the Lower

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Speaker 7: Bright decision.

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Speaker 1: The opinion mentioned starry decisis, which basically means following precedence

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Speaker 1: about forty times. What role does story decisives play here?

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Speaker 7: Well, that's also a point of potential chaos from this decision.

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Speaker 7: Because Chevron had been so widely cited, new questions now

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Speaker 7: are arising about what is the status of old agency

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Speaker 7: interpretation that had been previously litigated and upheld under the

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Speaker 7: Chevron doctrine. The Court did anticipate this issue to some degree,

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Speaker 7: but it addressed it only in a very brief section

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Speaker 7: of its opinion, and in a way that isn't quite

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Speaker 7: crystal clear itself, and will only i think, breed further

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Speaker 7: confusion and lesser until the Court steps in and tries

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Speaker 7: to clarify things. But in brief, the Court said that

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Speaker 7: prior to specific agency actions that had been undertaken under

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Speaker 7: a position or an interpretation approved under the Chevron doctrine,

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Speaker 7: those specific agency actions could not be overturned just because

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Speaker 7: the Court was overturning Chevron. But there's a whole host

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Speaker 7: of ambiguities and questions about what all that means. So

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Speaker 7: it probably means that if somebody has a permit or

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Speaker 7: a license, or been the beneficiary of some immigration decision

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Speaker 7: in the pass that was handed down under a policy

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Speaker 7: approved by courts under the Chevron doctor, that those specific

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Speaker 7: actions can't be overturned. But it doesn't mean necessarily that

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Speaker 7: the prior statutory interpretations can't be challenged in new permit

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Speaker 7: denials or licensed denials or adverse immigration decisions that might

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Speaker 7: come up. So you're likely to see old interpretations now

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Speaker 7: that had seemingly been settled law, sometimes perhaps for years

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Speaker 7: or not decades, being reopened and revisited.

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Speaker 1: So is this the Court taking more power for the courts?

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Speaker 7: Yeah, this is of a piece with other decisions that

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Speaker 7: are making the Court a more central player within modern government,

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Speaker 7: probably more central than it's been for at least fifty years,

440
00:27:50,320 --> 00:27:54,359
Speaker 7: if not more. The overturning of Chevron means that the

441
00:27:54,480 --> 00:28:00,320
Speaker 7: Court must decide questions of statutory interpretation and agencies don't

442
00:28:00,400 --> 00:28:05,000
Speaker 7: merit anything more than perhaps respectful consideration. But it's also

443
00:28:05,440 --> 00:28:09,399
Speaker 7: something to combine with another decision that the Court handed

444
00:28:09,480 --> 00:28:12,320
Speaker 7: down at the end of the term that allows new

445
00:28:12,440 --> 00:28:17,480
Speaker 7: businesses to form and to have the ability to essentially

446
00:28:17,920 --> 00:28:22,879
Speaker 7: obliterate the statute of limitations that might otherwise apply because

447
00:28:22,920 --> 00:28:26,200
Speaker 7: they weren't in existence at the time an agency undertook

448
00:28:26,200 --> 00:28:30,080
Speaker 7: an action and reopened again settled rules. It's of a

449
00:28:30,200 --> 00:28:34,320
Speaker 7: piece with another decision handed down this term that was

450
00:28:34,440 --> 00:28:39,800
Speaker 7: decided on Seventh Amendment grounds that Darchisi decision that holds that,

451
00:28:40,120 --> 00:28:43,920
Speaker 7: at least in the Securities and Exchange Commission context, when

452
00:28:44,000 --> 00:28:49,440
Speaker 7: dealing with civil penalties for fraud, the agency's tribunals cannot

453
00:28:49,640 --> 00:28:52,880
Speaker 7: decide the matter. They have to go to jury's in

454
00:28:53,200 --> 00:28:58,120
Speaker 7: the Article three Courts. That decision itself, I suspect will

455
00:28:58,240 --> 00:29:01,680
Speaker 7: not be the last word, and we might see other

456
00:29:02,200 --> 00:29:06,720
Speaker 7: agencies internal tribunals in future years needing to go to

457
00:29:06,880 --> 00:29:08,760
Speaker 7: Article three courts. So we're going to have a lot

458
00:29:08,800 --> 00:29:11,960
Speaker 7: more business for the judiciary, and that raises a host

459
00:29:12,000 --> 00:29:15,600
Speaker 7: of institutional capacity questions about whether the courts are going

460
00:29:15,640 --> 00:29:18,959
Speaker 7: to be capable of resolving these matters in a timely

461
00:29:19,160 --> 00:29:20,960
Speaker 7: and informed manner.

462
00:29:21,400 --> 00:29:24,360
Speaker 1: So they're not done dismantly the administrative state yet.

463
00:29:25,040 --> 00:29:27,760
Speaker 7: I think the administrative state is certainly going to be around,

464
00:29:27,880 --> 00:29:30,520
Speaker 7: but it's going to be a different one, and its

465
00:29:30,600 --> 00:29:33,320
Speaker 7: relationship with the courts and the court's relationship with it

466
00:29:33,720 --> 00:29:37,840
Speaker 7: have definitely shifted. And the US Supreme Court majority here

467
00:29:37,920 --> 00:29:41,760
Speaker 7: has signaled to the rest of government that the old

468
00:29:41,880 --> 00:29:46,720
Speaker 7: ways are over and it wants everybody at the lower

469
00:29:46,800 --> 00:29:50,040
Speaker 7: court level and throughout the agencies to take a more

470
00:29:50,320 --> 00:29:55,560
Speaker 7: skeptical view of administrative authority being exercised by agencies that

471
00:29:55,680 --> 00:29:59,000
Speaker 7: have been delegated that authority by Congress, but now are

472
00:29:59,080 --> 00:30:03,000
Speaker 7: going to be subject to a much more muscular approach

473
00:30:03,120 --> 00:30:03,840
Speaker 7: by the courts.

474
00:30:04,160 --> 00:30:06,600
Speaker 1: I'm sure we're going to be discussing this over and

475
00:30:06,720 --> 00:30:10,000
Speaker 1: over again in the future. Thanks so much for your insights, Carrie.

476
00:30:10,200 --> 00:30:14,040
Speaker 1: That's Professor carry Coliniesi of the University of Pennsylvania Law School,

477
00:30:14,520 --> 00:30:17,440
Speaker 1: coming up next on the Bloomberg Law Show. The Roberts

478
00:30:17,560 --> 00:30:20,920
Speaker 1: Court is looking more and more political. But how different

479
00:30:21,040 --> 00:30:24,400
Speaker 1: is that from Supreme courts in the past. I'm June

480
00:30:24,440 --> 00:30:30,040
Speaker 1: Grosso and this is Bloomberg with another transformational term. The

481
00:30:30,160 --> 00:30:34,240
Speaker 1: conservative super majority on the Supreme Court left no doubt

482
00:30:34,400 --> 00:30:37,640
Speaker 1: that a revolution is under way, pushing ahead to attain

483
00:30:37,760 --> 00:30:41,880
Speaker 1: its long term goals without much regard for precedent. Among

484
00:30:41,960 --> 00:30:46,360
Speaker 1: other things, the six Republican appointed justices slashed the power

485
00:30:46,400 --> 00:30:51,080
Speaker 1: of regulators, granted broad immunity from criminal prosecution for former

486
00:30:51,160 --> 00:30:55,040
Speaker 1: President Donald Trump, made it harder to challenge voting maps

487
00:30:55,120 --> 00:30:59,320
Speaker 1: as racially gerrymandered, and found that homeless people sleeping on

488
00:30:59,440 --> 00:31:02,640
Speaker 1: the street can be sent to jail. So what can

489
00:31:02,720 --> 00:31:06,640
Speaker 1: be done about a court issuing landmark rulings changing the

490
00:31:06,760 --> 00:31:09,600
Speaker 1: law for the third year in a row. Here's Chief

491
00:31:09,840 --> 00:31:13,440
Speaker 1: Justice John Roberts answer that question twelve years ago.

492
00:31:13,880 --> 00:31:16,480
Speaker 2: Well, I think the important thing to understand is that

493
00:31:17,080 --> 00:31:19,280
Speaker 2: there are three branches of government, and two of them

494
00:31:19,320 --> 00:31:22,760
Speaker 2: are political. And if you don't like what the Congress

495
00:31:22,880 --> 00:31:25,760
Speaker 2: is doing, you're congressman. You can throw them out of office.

496
00:31:25,880 --> 00:31:27,760
Speaker 2: If you don't like what the President is doing, can

497
00:31:27,840 --> 00:31:30,400
Speaker 2: throw him out of office. If you don't like what

498
00:31:30,480 --> 00:31:35,160
Speaker 2: I'm doing, it's just too bad. And now most people

499
00:31:35,240 --> 00:31:37,600
Speaker 2: would say, how can that be?

500
00:31:37,960 --> 00:31:38,240
Speaker 3: You do?

501
00:31:38,920 --> 00:31:41,280
Speaker 2: The cases are pretty important and you need to understand, Well,

502
00:31:41,320 --> 00:31:44,120
Speaker 2: it's because the Framers didn't want the courts to be

503
00:31:44,240 --> 00:31:45,520
Speaker 2: making political decisions.

504
00:31:46,040 --> 00:31:49,280
Speaker 1: Well, seven out of ten Americans feel the Court is

505
00:31:49,480 --> 00:31:53,440
Speaker 1: making political decisions, shaping the law to fit the justice's

506
00:31:53,640 --> 00:31:58,400
Speaker 1: own ideologies, according to an ap nork pole conducted last month.

507
00:31:58,640 --> 00:32:02,000
Speaker 1: But is the Roberts Court any different from other Supreme

508
00:32:02,120 --> 00:32:05,520
Speaker 1: courts in our history? Joining me is Anthony Michael Christ,

509
00:32:05,640 --> 00:32:08,800
Speaker 1: a professor at the Georgia State University College of Law,

510
00:32:09,120 --> 00:32:12,960
Speaker 1: who's written about this. People are bemoaning how the Supreme

511
00:32:13,080 --> 00:32:17,480
Speaker 1: Court has become so political. But you write that the

512
00:32:17,600 --> 00:32:20,720
Speaker 1: Supreme Court always has been political and that the Court

513
00:32:20,800 --> 00:32:25,160
Speaker 1: has never been an apolitical arbiter of the constitution. Tell

514
00:32:25,240 --> 00:32:25,600
Speaker 1: us why.

515
00:32:26,040 --> 00:32:29,880
Speaker 8: So, you know, the Supreme Court has two important features

516
00:32:30,040 --> 00:32:33,400
Speaker 8: in terms of how justice think. The first one is

517
00:32:33,520 --> 00:32:37,000
Speaker 8: that they're members of society, and so you know, society

518
00:32:37,320 --> 00:32:40,240
Speaker 8: has kind of dominant main streme views and those that

519
00:32:40,360 --> 00:32:43,480
Speaker 8: are very much on the outside, and justices, much like

520
00:32:43,560 --> 00:32:48,320
Speaker 8: your average citizens, is going to internalize those views, internalize

521
00:32:48,440 --> 00:32:51,760
Speaker 8: those changing dynamics in society and current events and all

522
00:32:51,800 --> 00:32:55,560
Speaker 8: the like, and their jurisprudence is going to sometimes be

523
00:32:55,680 --> 00:32:57,920
Speaker 8: affected by that. But then the other thing that's even

524
00:32:58,000 --> 00:33:01,840
Speaker 8: more important in terms of the Supreme Court jurisprudential outcomes

525
00:33:02,000 --> 00:33:05,280
Speaker 8: is the fact that it is the byproduct of big

526
00:33:05,440 --> 00:33:10,040
Speaker 8: political coalition that elect presidents and that elect majorities in

527
00:33:10,080 --> 00:33:13,520
Speaker 8: the Senate. That then creates this dynamic where you get

528
00:33:13,560 --> 00:33:17,440
Speaker 8: a president who appoints justice the Supreme Court who also

529
00:33:17,520 --> 00:33:21,920
Speaker 8: reflects their ideological commitments. And so generally speaking, because of

530
00:33:22,040 --> 00:33:25,960
Speaker 8: these two different features of how justices get picked and

531
00:33:26,400 --> 00:33:28,800
Speaker 8: how they just operate as regular members of society, right,

532
00:33:28,840 --> 00:33:31,080
Speaker 8: they're not for medically sealed off from the rest of us.

533
00:33:31,200 --> 00:33:34,920
Speaker 8: You know, the courts tend to reflect majoritarian views. Certainly,

534
00:33:35,200 --> 00:33:37,840
Speaker 8: I think there's a case to be made that this court,

535
00:33:38,200 --> 00:33:41,880
Speaker 8: the Roberts Court, and as the Roberts Court is currently constituted,

536
00:33:42,000 --> 00:33:45,200
Speaker 8: a lot of people may say this well outside of

537
00:33:45,280 --> 00:33:49,120
Speaker 8: the kind of mainstream views of the average American today,

538
00:33:49,240 --> 00:33:51,200
Speaker 8: And I think there was an argument made for that,

539
00:33:51,520 --> 00:33:55,280
Speaker 8: for sure. But generally speaking, the Supreme Court, contrary to

540
00:33:55,360 --> 00:33:57,240
Speaker 8: what most of us have been taught in law school

541
00:33:57,480 --> 00:33:59,400
Speaker 8: and in college for years and years and years, it's

542
00:33:59,440 --> 00:34:00,920
Speaker 8: not account of George Tian institution.

543
00:34:01,560 --> 00:34:04,840
Speaker 1: And you see the Roberts Court as the living embodiment

544
00:34:05,040 --> 00:34:08,680
Speaker 1: of the Reagan Revolution of the nineteen eighties, just as

545
00:34:08,800 --> 00:34:12,480
Speaker 1: the Warren Court in the fifties and sixties mirrored the

546
00:34:12,600 --> 00:34:13,719
Speaker 1: values of the New Deal.

547
00:34:14,200 --> 00:34:17,680
Speaker 8: Certainly, there's similar dynamics in that both courts overturned a

548
00:34:17,719 --> 00:34:21,280
Speaker 8: lot of precedent. People generally don't see the Warren Court

549
00:34:21,440 --> 00:34:24,719
Speaker 8: as being at a step with the average Americans view

550
00:34:25,000 --> 00:34:28,040
Speaker 8: during that period because the New Deal coalition was dominant

551
00:34:28,080 --> 00:34:32,360
Speaker 8: and they won outright majorities both in Congress and substantial

552
00:34:32,400 --> 00:34:35,480
Speaker 8: majorities time and again in terms of sending a president

553
00:34:35,520 --> 00:34:38,759
Speaker 8: to the White House, and even Republicans who were more

554
00:34:38,840 --> 00:34:42,360
Speaker 8: conservative than the average Democrat at the time tends to

555
00:34:42,440 --> 00:34:45,320
Speaker 8: be more liberal, and so the views of the average

556
00:34:45,400 --> 00:34:48,640
Speaker 8: politicians who was electable in that time period was very

557
00:34:48,719 --> 00:34:51,600
Speaker 8: much in sync with the average view of the typical

558
00:34:51,640 --> 00:34:54,400
Speaker 8: Supreme Court justice at the time. Why I think people

559
00:34:54,560 --> 00:34:59,160
Speaker 8: seem more skeptical of this court is because, unlike the

560
00:34:59,239 --> 00:35:01,759
Speaker 8: Warren Court, for for example, Donald Trump when he was

561
00:35:01,800 --> 00:35:05,759
Speaker 8: first elected, never cured a popular vote majority, and I

562
00:35:05,880 --> 00:35:09,400
Speaker 8: think in terms of public opinion pulling really never cracked

563
00:35:09,440 --> 00:35:12,920
Speaker 8: a majority of Americans supporting his presidency. And at the

564
00:35:12,960 --> 00:35:15,400
Speaker 8: same time, there was a dynamic that occurred in the

565
00:35:15,520 --> 00:35:19,720
Speaker 8: Senate where Donald Trump's Supreme Court nominees, unlike every nominee

566
00:35:19,840 --> 00:35:23,719
Speaker 8: in the years past, was unable to secure a majority

567
00:35:24,040 --> 00:35:28,520
Speaker 8: of Senators who confirm the nomination who also represented a

568
00:35:28,680 --> 00:35:33,080
Speaker 8: majority of Americans because the Senate has become so malaportioned

569
00:35:33,200 --> 00:35:36,279
Speaker 8: based on population. And so I think part of the

570
00:35:36,400 --> 00:35:40,399
Speaker 8: anxiety that you see, particularly from the center, center, left

571
00:35:40,480 --> 00:35:43,480
Speaker 8: and left of the political spectrum here in the United States,

572
00:35:43,760 --> 00:35:46,239
Speaker 8: that is a byproduct of the feeling that the Preme

573
00:35:46,360 --> 00:35:51,840
Speaker 8: Court is representing minoritarian on minoritarian on minoritarian interests and

574
00:35:52,040 --> 00:35:55,200
Speaker 8: not in step with kind of the general flow and

575
00:35:55,320 --> 00:35:58,879
Speaker 8: trajectory of the American body politics, as was the case

576
00:35:58,920 --> 00:36:01,560
Speaker 8: perhaps in the nineteen fifty in nineteen sixties. So there

577
00:36:01,600 --> 00:36:05,640
Speaker 8: are similarities in terms of the court reflecting winning coalitions

578
00:36:05,719 --> 00:36:07,600
Speaker 8: to a certain extent, both between the Warren Court and

579
00:36:07,600 --> 00:36:10,000
Speaker 8: the Roberts Court. But I think there are also very

580
00:36:10,120 --> 00:36:13,160
Speaker 8: significant qualitated differences in terms of where we are in

581
00:36:13,239 --> 00:36:15,960
Speaker 8: the kind of a longer term trajectory in American politics.

582
00:36:16,200 --> 00:36:18,560
Speaker 1: So let's talk about a few of the cases this term.

583
00:36:19,120 --> 00:36:22,840
Speaker 1: There was a case involving the Eighth Amendment's prohibition against

584
00:36:22,960 --> 00:36:27,200
Speaker 1: cruel and unusual punishment as it applied to homelessness, and

585
00:36:27,360 --> 00:36:30,440
Speaker 1: it was one of eleven cases this term where the

586
00:36:30,560 --> 00:36:35,440
Speaker 1: Court was divided sixty three down ideological lines, with the

587
00:36:35,520 --> 00:36:37,600
Speaker 1: liberal justices in the minority.

588
00:36:37,920 --> 00:36:40,920
Speaker 8: So, in a case called City of Grant's Past, the

589
00:36:41,040 --> 00:36:44,919
Speaker 8: Supreme Court said that it does not violate the Eighth

590
00:36:44,960 --> 00:36:49,800
Speaker 8: Amendments ban on cruel and unusual punishment to essentially criminalize

591
00:36:50,200 --> 00:36:54,080
Speaker 8: people from camping in public spaces. The majority basically said, well,

592
00:36:54,120 --> 00:36:56,320
Speaker 8: you know, this is not a problem like you essentially

593
00:36:56,400 --> 00:37:00,440
Speaker 8: have choices here, and that's that there's no conscious foutional

594
00:37:00,840 --> 00:37:04,000
Speaker 8: refuge or shield here under the Eighth Amendment. Whereas I

595
00:37:04,040 --> 00:37:07,320
Speaker 8: think that the centers understood the bind that people face

596
00:37:07,520 --> 00:37:10,520
Speaker 8: in these very tough situations, I think what's telling in

597
00:37:10,560 --> 00:37:13,080
Speaker 8: some respects, at least for me as a scholar of

598
00:37:13,239 --> 00:37:16,120
Speaker 8: political history. You know, so much of this court is

599
00:37:16,400 --> 00:37:19,920
Speaker 8: hell bent on originalist principles. And it's kind of ironic

600
00:37:20,080 --> 00:37:22,760
Speaker 8: because you know, if you look back to the eighteen

601
00:37:22,960 --> 00:37:27,520
Speaker 8: sixties when zoodical Republicans were running the show and reconstruction

602
00:37:27,800 --> 00:37:30,600
Speaker 8: was on their mind, and the Fourteenth Amendment came into play,

603
00:37:30,719 --> 00:37:34,040
Speaker 8: as did the forerunner to the Fourteenth Amendment, the Civil

604
00:37:34,160 --> 00:37:36,800
Speaker 8: Rights Act of eighteen sixty six. These laws were to

605
00:37:36,920 --> 00:37:40,080
Speaker 8: push back on seven states which used vacancy walls, which

606
00:37:40,120 --> 00:37:42,319
Speaker 8: were very similar right to what is that play here

607
00:37:42,360 --> 00:37:45,479
Speaker 8: in the City of Grant Pass case, and basically track

608
00:37:45,600 --> 00:37:49,080
Speaker 8: people either you know, working on certain plantations or working

609
00:37:49,160 --> 00:37:51,759
Speaker 8: in certain conditions. And the pushback against that was that

610
00:37:51,800 --> 00:37:54,239
Speaker 8: people should have freedom of movement. And you know, there

611
00:37:54,280 --> 00:37:56,759
Speaker 8: were certainly people who also thought that there was a

612
00:37:56,880 --> 00:38:00,319
Speaker 8: requirement and an obligation on government to provide some kind

613
00:38:00,360 --> 00:38:03,240
Speaker 8: of basic social safety net. And this is a particularly

614
00:38:03,400 --> 00:38:07,920
Speaker 8: important point that reconstruction legislators in South Carolina made in

615
00:38:08,000 --> 00:38:10,320
Speaker 8: the late eighteen sixties and or only eighteen seventies. But

616
00:38:10,360 --> 00:38:13,480
Speaker 8: there's no originalism here, right, There's kind of no originalism

617
00:38:13,640 --> 00:38:15,719
Speaker 8: for folks who are poor. And I think that's really

618
00:38:15,840 --> 00:38:19,040
Speaker 8: kind of telling in some respects about what this court

619
00:38:19,160 --> 00:38:23,000
Speaker 8: is doing. It's not some kind of neutral zuri prudential

620
00:38:23,080 --> 00:38:26,320
Speaker 8: decision making. They make decisions on an ad hoc basis,

621
00:38:26,440 --> 00:38:30,080
Speaker 8: implementing whatever kind of constitutional tools of interpretation they want

622
00:38:30,360 --> 00:38:32,840
Speaker 8: as they see fit. There's really no rhyme or reason

623
00:38:32,880 --> 00:38:35,279
Speaker 8: to it other than they see an issue and they

624
00:38:35,400 --> 00:38:39,320
Speaker 8: craft a rule based on what they viscerally and politically

625
00:38:39,400 --> 00:38:41,080
Speaker 8: feel is the right outcome.

626
00:38:41,480 --> 00:38:45,560
Speaker 1: Originalism being a method of interpreting the Constitution and laws

627
00:38:46,000 --> 00:38:50,440
Speaker 1: that relies on history and tradition to determine its original meaning.

628
00:38:50,960 --> 00:38:54,000
Speaker 1: Do you think that Grant's past case and several other

629
00:38:54,120 --> 00:38:59,920
Speaker 1: cases exposed riffs among the conservatives about just what originalism is,

630
00:39:00,760 --> 00:39:04,600
Speaker 1: especially the fractured decision in the Raheemi gun case where

631
00:39:04,600 --> 00:39:08,239
Speaker 1: there were six concurrences basically debating originalism.

632
00:39:08,880 --> 00:39:11,760
Speaker 8: I think the Raheimi case is really telling in some respects.

633
00:39:11,920 --> 00:39:15,719
Speaker 8: It's ironic to me that Justice Schummas, who wrote the

634
00:39:15,800 --> 00:39:18,040
Speaker 8: decision a couple of years ago in Bruin, which was

635
00:39:18,200 --> 00:39:22,200
Speaker 8: this revolutionary Second Amendment case, basically was a loan to

636
00:39:22,360 --> 00:39:25,760
Speaker 8: center in Rahimi and said, well, you don't really understand

637
00:39:25,920 --> 00:39:29,279
Speaker 8: what I wrote. And so you know, that kind of

638
00:39:29,360 --> 00:39:31,520
Speaker 8: undercuts the whole point of originalism. Right when you have

639
00:39:31,640 --> 00:39:35,799
Speaker 8: the author of an opinion that received majority vote by

640
00:39:36,120 --> 00:39:39,359
Speaker 8: members of the United States Supreme Court saying to other

641
00:39:39,400 --> 00:39:41,440
Speaker 8: people in the Streme Court you don't understand just a

642
00:39:41,520 --> 00:39:43,680
Speaker 8: couple of years later what I actually meant kind of

643
00:39:43,800 --> 00:39:48,120
Speaker 8: ironically undercut originalism and its alleged integrity as a tool

644
00:39:48,120 --> 00:39:51,000
Speaker 8: of interpretation. But I think the other thing is that

645
00:39:51,120 --> 00:39:54,719
Speaker 8: it has shown some cracks in that people have understood

646
00:39:55,080 --> 00:39:58,920
Speaker 8: that originalism has applied in a very strict and narrow

647
00:39:59,200 --> 00:40:04,279
Speaker 8: sense unworkable and untenable outcome. And I think, frankly, the

648
00:40:04,400 --> 00:40:07,960
Speaker 8: fact that the justices all roundly rejected this idea that

649
00:40:08,080 --> 00:40:12,360
Speaker 8: the Second Amendment should somehow protect domestic abusers and allow

650
00:40:12,440 --> 00:40:14,320
Speaker 8: them to have weapons. You know, most people in the

651
00:40:14,400 --> 00:40:16,520
Speaker 8: United States, I think, would say they agree that that

652
00:40:16,560 --> 00:40:19,520
Speaker 8: should not be the case. But if you applied just

653
00:40:19,600 --> 00:40:22,279
Speaker 8: to Thomas's tests that he articulated a couple of years

654
00:40:22,280 --> 00:40:25,880
Speaker 8: ago in a truly faithful way, the outcome would have

655
00:40:25,920 --> 00:40:28,800
Speaker 8: been different. And so I think the Rasheini case, in

656
00:40:28,880 --> 00:40:33,960
Speaker 8: some respects illustrates how there's this kind of roving attempt

657
00:40:34,160 --> 00:40:35,960
Speaker 8: by a number of the members of the Court to

658
00:40:36,160 --> 00:40:39,520
Speaker 8: apply riginalism where it works for them and to kind

659
00:40:39,560 --> 00:40:42,480
Speaker 8: of push back a bit where it doesn't. And that, again,

660
00:40:42,640 --> 00:40:47,640
Speaker 8: I think truly is astonishing for a group of people

661
00:40:47,840 --> 00:40:52,440
Speaker 8: who suggest that originalism is the one, only and true

662
00:40:52,480 --> 00:40:53,960
Speaker 8: way to interpret the Constitution.

663
00:40:54,800 --> 00:40:58,520
Speaker 1: The Chief Justice used to care, or seemed to care

664
00:40:59,040 --> 00:41:02,319
Speaker 1: about the public's of the court, about the Court as

665
00:41:02,320 --> 00:41:07,000
Speaker 1: an institution, claiming, you know, justices are not politicians, that

666
00:41:07,080 --> 00:41:10,440
Speaker 1: they're just calling balls and strikes. What do you think

667
00:41:10,560 --> 00:41:14,720
Speaker 1: happened this term that he seemed to throw away that concern.

668
00:41:16,200 --> 00:41:18,840
Speaker 8: That's a good question. I think for a long time,

669
00:41:20,200 --> 00:41:23,520
Speaker 8: Justice Roberts was dealing with a court that was really

670
00:41:23,640 --> 00:41:27,399
Speaker 8: straddling an ideological void a bit where any case could

671
00:41:27,400 --> 00:41:31,279
Speaker 8: come out five to four. Really truly, before Donald Trump

672
00:41:31,360 --> 00:41:35,320
Speaker 8: took office, you know, the Supreme Court was still incredibly conservative,

673
00:41:35,480 --> 00:41:39,080
Speaker 8: even though it had a lot more ideological diversity on it.

674
00:41:39,200 --> 00:41:42,160
Speaker 8: The Court was certainly right of center, and when Justice

675
00:41:42,239 --> 00:41:44,919
Speaker 8: Kennedy left the bench a couple of years into Donald

676
00:41:44,960 --> 00:41:48,360
Speaker 8: Trump's term, the Court went vastly right ward. But I

677
00:41:48,400 --> 00:41:53,200
Speaker 8: think despite the Court's conservative dynamics before the Corom ministerration,

678
00:41:53,560 --> 00:41:57,279
Speaker 8: John Roberts still had to cobble together coalition, and I

679
00:41:57,360 --> 00:41:59,480
Speaker 8: think that there was a sense that the American public

680
00:41:59,680 --> 00:42:03,560
Speaker 8: was coming increasingly liberal, especially on social issues and some

681
00:42:03,640 --> 00:42:05,759
Speaker 8: of these kind of hot button issues that were very

682
00:42:05,880 --> 00:42:08,960
Speaker 8: salient during the Aboma administration. I think there was a

683
00:42:09,080 --> 00:42:11,600
Speaker 8: sense that he really had to keep together a coalition

684
00:42:11,800 --> 00:42:13,680
Speaker 8: of five and so you know, there might be some

685
00:42:13,840 --> 00:42:17,520
Speaker 8: internal fugitial politics at play there. It's really hard to say,

686
00:42:17,680 --> 00:42:20,360
Speaker 8: but I think what we can for certain day is

687
00:42:20,440 --> 00:42:23,360
Speaker 8: that he has seen, for whatever reason, the Court, you know,

688
00:42:23,480 --> 00:42:26,000
Speaker 8: in his view, needs and can take a sharp turn.

689
00:42:26,120 --> 00:42:30,120
Speaker 8: Right now, It's hard to understand without the perspective of

690
00:42:30,440 --> 00:42:34,400
Speaker 8: more time exactly what's happened there, but there is I

691
00:42:34,680 --> 00:42:39,960
Speaker 8: think a noticeable shift in the Chief justices perspective on

692
00:42:40,320 --> 00:42:43,320
Speaker 8: the Court as an institution, in the institutional capital that

693
00:42:43,400 --> 00:42:45,839
Speaker 8: it had. There are some risks to that. I think

694
00:42:45,920 --> 00:42:48,759
Speaker 8: that opens up the Court to a lot more political text,

695
00:42:48,920 --> 00:42:51,000
Speaker 8: so we'll have to see if that works out to

696
00:42:51,160 --> 00:42:51,760
Speaker 8: his benefit.

697
00:42:51,920 --> 00:42:54,879
Speaker 1: In the longer term, it's difficult to understand a lot

698
00:42:54,960 --> 00:42:57,879
Speaker 1: of what's going on at the Court because of its

699
00:42:58,160 --> 00:43:02,200
Speaker 1: total lack of transparency. Thanks so much, Anthony. That's Professor

700
00:43:02,280 --> 00:43:06,239
Speaker 1: Anthony Michael Chrice of the Georgia State University College of Law.

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00:43:06,520 --> 00:43:09,120
Speaker 1: And that's it for this edition of the Bloomberg Law Podcast.

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00:43:09,560 --> 00:43:11,880
Speaker 1: Remember you can always get the latest legal news by

703
00:43:11,960 --> 00:43:15,759
Speaker 1: subscribing and listening to the show on Apple Podcasts, Spotify,

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00:43:16,080 --> 00:43:19,919
Speaker 1: and at Bloomberg dot com, slash podcast, Slash Law. I'm

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00:43:20,000 --> 00:43:22,400
Speaker 1: June Grosso and this is Bloomberg