WEBVTT - Justice Ginsberg Back on the Bench, Contentious Case Teed Up

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcast. The Supreme Court

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<v Speaker 1>is hearing arguments today after a four week break, and

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<v Speaker 1>back on the bench for the first time since surgery

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<v Speaker 1>for a lung cancer in December. Is Justice Ruth Bader Ginsburg,

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<v Speaker 1>the leader of the courts liberal wing, joining us as

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<v Speaker 1>Bloomberg New Supreme Court reporter of Greg's store. Who was there, so, Greg?

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<v Speaker 1>How did she appear on the bench June? She appeared

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<v Speaker 1>very much like she she always does. She climbed the

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<v Speaker 1>three steps that the justices have to climb to get

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<v Speaker 1>to the bench without any apparent difficulty and without any assistance.

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<v Speaker 1>She asked the very first question of the argument barely

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<v Speaker 1>a minute into it, and seemed very much engaged in it.

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<v Speaker 1>Did Chief Justice John Roberts say anything about her return.

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<v Speaker 1>He did not. He treated it like an normal day,

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<v Speaker 1>made no mention he has been mentioning her in in

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<v Speaker 1>past cases when she was absent, to say that she

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<v Speaker 1>would be taking part via the transcripts and the briefs

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<v Speaker 1>in the case, but with her back on the bench,

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<v Speaker 1>he didn't need to say anything like that. Okay. Well

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<v Speaker 1>Ginsburg had attended the private conference of the justices on Friday.

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<v Speaker 1>That's the day the court agreed to decide whether the

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<v Speaker 1>Trump administration can ask about a citizenship question on the census,

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<v Speaker 1>and a judge barred that question after a trial. Tell

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<v Speaker 1>us more about what's before the court. This could be

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<v Speaker 1>the biggest case of the year. The Trump administration, as

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<v Speaker 1>you said, is trying to add a question asking people

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<v Speaker 1>about citizenship on the de cential census. In that's a

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<v Speaker 1>question that has been asked previously, but not asked of

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<v Speaker 1>every person during the last several censuses. And the question

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<v Speaker 1>for the court is not just whether that they can

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<v Speaker 1>add that question, but whether they followed the proper rules

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<v Speaker 1>that administrative agencies are supposed to follow in doing that,

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<v Speaker 1>whether they, for example, adequately explain the reasons, and whether

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<v Speaker 1>they considered the facts that were before them about the

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<v Speaker 1>possibility that asking the senses question might lead people not

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<v Speaker 1>to respond, they might lead to a less accurate sensus.

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<v Speaker 1>So what exactly is the question they'll be answering because

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<v Speaker 1>the judge in the trial when pretty far saying that

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<v Speaker 1>Secretary Ross acted in an arbitrary and capricious manner and

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<v Speaker 1>a veritable smartest board of ways he violated administrative procedures.

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<v Speaker 1>There are a whole lot of questions in here. It

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<v Speaker 1>could be a rather complicated argument. That's in part because

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<v Speaker 1>they skipped over the appeals court level, and so there

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<v Speaker 1>is less winnowing out of the issues in the case.

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<v Speaker 1>The Trump administration is saying, among other things, that the

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<v Speaker 1>states and advocacy organizations suing don't have legal standing to

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<v Speaker 1>file the suit in the first place. They're also saying

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<v Speaker 1>that this entire question is a matter that is up

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<v Speaker 1>to the Census Bureau on the Commerce Department, and the

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<v Speaker 1>courts have no role whatsoever. And if the court gets

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<v Speaker 1>past those two questions, uh, then the justices will look

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<v Speaker 1>at the stuff you were just talking about, whether they

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<v Speaker 1>the Census Bureau in the Commerce Department acted in an

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<v Speaker 1>arbitrary and capricious way, essentially by ignoring the evidence that

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<v Speaker 1>was before them and giving an explanation for why they

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<v Speaker 1>did it that didn't square with what actually happened. You

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<v Speaker 1>mentioned that this is going to possibly be the biggest

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<v Speaker 1>case for President Trump of the term. It could also

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<v Speaker 1>be the most politically divisive. Explain why, Yeah, and we

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<v Speaker 1>have some evidence that this has been politically divisive before.

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<v Speaker 1>There's been a lot of back and forth on preliminary

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<v Speaker 1>issues in this case at the Supreme Court, and in

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<v Speaker 1>one earlier example, the three conservative Justices Thomas, Gors and

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<v Speaker 1>Alito said they would have stopped this trial that was

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<v Speaker 1>going on in federal in New York, distinguishing themselves from

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<v Speaker 1>a couple of the other Republican appointed justices robertson Kavanaugh,

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<v Speaker 1>as well as the more liberal justices. It does seem

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<v Speaker 1>like this will be one of those cases that divides

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<v Speaker 1>the Court along ideological lines, and Chief Justice Roberts and

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<v Speaker 1>Justice Kavanaugh will probably be the ones casting the deciding votes.

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<v Speaker 1>So greg they've been staying away from most of these

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<v Speaker 1>very politically divisive cases and issues since Kavanaugh took the bench.

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<v Speaker 1>Is it that they had to do this, that there

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<v Speaker 1>was sort of no choice? Yeah, pretty much. You know

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<v Speaker 1>this is there's a looming deadline. The Census Bureau says

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<v Speaker 1>that they have to start printing the questionnaires by June.

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<v Speaker 1>There wasn't time to let the case play out a

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<v Speaker 1>little more at the lower court level, for example, by

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<v Speaker 1>letting the appeals court decided. And ultimately, if if a

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<v Speaker 1>court is going to tell the government, a government agency,

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<v Speaker 1>a cabinet official, you can't do something virtually always the

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<v Speaker 1>Supreme Court wants to be the one who's saying that

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<v Speaker 1>they don't want to leave it to a federal judge

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<v Speaker 1>to make the final decision. So it would have been

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<v Speaker 1>a major surprise if the Supreme Court had not agreed

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<v Speaker 1>to take this up. And because of that deadline, they

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<v Speaker 1>need to take it up on an expedited basis. So,

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<v Speaker 1>as you and I have discussed, the Trump administration has

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<v Speaker 1>several times tried to bypass appellate courts to get to

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<v Speaker 1>the Supreme Court. So are you saying that this is

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<v Speaker 1>really not a sign that the Supreme Court is giving

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<v Speaker 1>in to the Trump administration on bypassing appellate courts. This

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<v Speaker 1>is a separate issue, correct, And I can give you

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<v Speaker 1>counter examples where the Supreme Court has not agreed to

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<v Speaker 1>it to hear things bypassing the appeals courts. In this case,

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<v Speaker 1>even the folks on the other side, the states led

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<v Speaker 1>by New York and the civil rights groups said if

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<v Speaker 1>the Supreme Court was going to take this case up,

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<v Speaker 1>it should do so on an expedited basis. It should

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<v Speaker 1>skip the appeals court level simply because there's not enough

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<v Speaker 1>time to get this case through another court level, and

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<v Speaker 1>have the Supreme Court decided and have the Sense of

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<v Speaker 1>S Bureau start printing those questionnaires when they need to

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<v Speaker 1>in June. So the Court did other things today besides

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<v Speaker 1>listening to Justice Ginsburg asked her first questions in a

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<v Speaker 1>couple of months. Tell us about the consideration of the

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<v Speaker 1>scope of the Clean Water Act. Yeah, so this is

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<v Speaker 1>a case the Court has agreed to hear um. Somewhat surprisingly,

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<v Speaker 1>they're going to hear it during the next term because

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<v Speaker 1>they had expedited the briefing in it to some degree.

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<v Speaker 1>This is a case involving uh treated wastewater that ends

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<v Speaker 1>up in the Pacific Ocean near Hawaii, and the question

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<v Speaker 1>is whether to discharge this pollution which goes underground before

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<v Speaker 1>emerging in the Pacific Ocean. The question is whether you

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<v Speaker 1>need a federal permit for that discharge. Lower courts are

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<v Speaker 1>divided on the issue. Not surprising that the Supreme Court

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<v Speaker 1>agreed to take it up also an issue that might

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<v Speaker 1>well divide the Court along ideological lines. Is the court's

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<v Speaker 1>calendar pretty full for the rest of this term where

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<v Speaker 1>they still have room for squeezing in more cases. Yeah,

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<v Speaker 1>it's totally full, and it's not even clear where they're

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<v Speaker 1>putting the senses case, the for all argument. A calendar

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<v Speaker 1>now has twelve cases and now will thirteen now with

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<v Speaker 1>the Census case, So they're going to have to hear

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<v Speaker 1>more than they they usually do. It's a bit of

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<v Speaker 1>a backloaded term, more so than the justices would want.

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<v Speaker 1>What looks to be the biggest decisions that are now

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<v Speaker 1>going to be the Census case, a case involving partisan jerrymandering,

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<v Speaker 1>and a case they're gonna here next week involving a

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<v Speaker 1>cross that serves as a World War One memorial and

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<v Speaker 1>whether that violates the Constitution's First Amendment. Well, we will

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<v Speaker 1>be back to you then because it sounds interesting and

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<v Speaker 1>there may be some decisions tomorrow, So maybe as soon

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<v Speaker 1>as tomorrow. Thanks so much, Greg, that's Bloomberg New Supreme

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<v Speaker 1>port Report of Greg's star. Thanks for listening to the

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<v Speaker 1>Bloomberg Law Podcast. You can subscribe and listen to the

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<v Speaker 1>show on Apple Podcast SoundCloud and on bloomberg dot com

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<v Speaker 1>slash Podcast. I'm June Brasso. This is Bloomberg