1 00:00:03,160 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brasso from Bloomberg Radio. 2 00:00:09,039 --> 00:00:12,640 Speaker 1: It was a Supreme Court term marked by turbulence, the 3 00:00:12,840 --> 00:00:17,840 Speaker 1: unprecedented leak of a draft abortion opinion, protests across the country, 4 00:00:17,960 --> 00:00:23,040 Speaker 1: including at the Johnstice's homes, an alleged assassination attempt, all 5 00:00:23,120 --> 00:00:26,560 Speaker 1: leading to a court surrounded by a high security fence. 6 00:00:27,080 --> 00:00:31,040 Speaker 1: Justice Sonya Sotomayor sounded alarms about the court during the 7 00:00:31,160 --> 00:00:36,680 Speaker 1: oral arguments in the abortion case. Will this institution survive 8 00:00:36,840 --> 00:00:44,199 Speaker 1: the stench that this creates in the public perception that 9 00:00:44,600 --> 00:00:51,960 Speaker 1: the Constitution and it's reading are just political acts. I 10 00:00:52,479 --> 00:00:56,560 Speaker 1: don't see how it is possible. And Justice Clarence Thomas 11 00:00:56,760 --> 00:01:00,560 Speaker 1: said it plainly, the court has changed. And when you 12 00:01:00,640 --> 00:01:06,360 Speaker 1: lose that trust, especially in the institution that I'm in, Uh, 13 00:01:06,400 --> 00:01:10,560 Speaker 1: it changes the institution fundamentally. You begin to look over 14 00:01:10,600 --> 00:01:14,039 Speaker 1: your shoulder. It's like kind of an infidelity joining me 15 00:01:14,120 --> 00:01:17,640 Speaker 1: is constitutional law expert Michael Dorff, a professor at Cornell 16 00:01:17,760 --> 00:01:20,280 Speaker 1: Law School. Would you say this term was the most 17 00:01:20,360 --> 00:01:24,680 Speaker 1: momentous in the Court's history or the most tumultuous. I 18 00:01:24,720 --> 00:01:28,280 Speaker 1: don't know about in the Court's history. Certainly the term 19 00:01:28,360 --> 00:01:33,240 Speaker 1: that they decided the dread Scott case was extremely tumultuous, 20 00:01:33,319 --> 00:01:36,400 Speaker 1: Brown against Board of Education and so forth. But the 21 00:01:36,880 --> 00:01:42,679 Speaker 1: combination of cases and what it portends about the future, 22 00:01:43,120 --> 00:01:47,920 Speaker 1: I think together make this one of the most tumultuous 23 00:01:48,040 --> 00:01:53,200 Speaker 1: terms we've encountered, certainly the most in the last forty years. 24 00:01:54,120 --> 00:01:56,760 Speaker 1: I'm looking at the numbers, and last year with the 25 00:01:56,840 --> 00:02:01,000 Speaker 1: same justices, the court issued more unanimous decisions than the 26 00:02:01,040 --> 00:02:05,480 Speaker 1: previous six or seven years. But this term, unanimous decisions 27 00:02:05,600 --> 00:02:10,800 Speaker 1: dropped sharply. Only cases were unanimous, and six to three 28 00:02:11,080 --> 00:02:14,919 Speaker 1: was the most common alignment. Why such a big change 29 00:02:15,000 --> 00:02:17,440 Speaker 1: from term to term, Well, part of that is just 30 00:02:17,560 --> 00:02:21,000 Speaker 1: a product of small numbers the court. Here's fewer than 31 00:02:21,040 --> 00:02:25,200 Speaker 1: a hundred cases a year. Many of them are resolving 32 00:02:25,240 --> 00:02:28,600 Speaker 1: circuit splits, others involved big cases, and there's also a 33 00:02:28,720 --> 00:02:32,960 Speaker 1: lag that is Justice Barrett joined the court to fall 34 00:02:33,000 --> 00:02:37,240 Speaker 1: of So this concluded term it was really her first 35 00:02:37,320 --> 00:02:40,640 Speaker 1: full term where they were considering cases, where she was 36 00:02:40,720 --> 00:02:43,480 Speaker 1: there to vote to decide what cases to take. That 37 00:02:43,639 --> 00:02:46,760 Speaker 1: is to say they had a quoted conservative supermajority the 38 00:02:46,840 --> 00:02:51,520 Speaker 1: previous term, but that conservative supermajority hadn't been selecting cases 39 00:02:51,600 --> 00:02:54,839 Speaker 1: with an eye towards moving the law. So I think 40 00:02:54,840 --> 00:02:57,680 Speaker 1: that it takes a little while for a new court 41 00:02:57,840 --> 00:03:01,079 Speaker 1: to come into its own, and various of the justices 42 00:03:01,200 --> 00:03:04,920 Speaker 1: like to say, whenever there is a single change in personnel, 43 00:03:05,240 --> 00:03:08,120 Speaker 1: there's a whole new court because the dynamic shifts. Chief 44 00:03:08,160 --> 00:03:13,120 Speaker 1: Justice Roberts is no longer the median justice. That title 45 00:03:13,160 --> 00:03:16,000 Speaker 1: I think belongs to Justice kavan On, although depending on 46 00:03:16,000 --> 00:03:18,560 Speaker 1: the issue, it could be barred or core as such. 47 00:03:18,880 --> 00:03:22,600 Speaker 1: But the basic answer is that this was the year 48 00:03:22,840 --> 00:03:27,079 Speaker 1: in which the Conservative supermajority solidified. Doesn't mean there won't 49 00:03:27,120 --> 00:03:29,679 Speaker 1: be unanimous cases going forward. There are issues that are 50 00:03:30,080 --> 00:03:32,680 Speaker 1: largely a political or where the law is very clear. 51 00:03:33,080 --> 00:03:35,800 Speaker 1: But I do think we are likely to see a 52 00:03:35,920 --> 00:03:39,680 Speaker 1: six to three division, occasionally five to four, with Roberts 53 00:03:39,880 --> 00:03:44,440 Speaker 1: swinging to the Democratic appointees. But that's the basic configuration, 54 00:03:44,520 --> 00:03:48,600 Speaker 1: certainly on the high profile cases, with the abortion case 55 00:03:48,920 --> 00:03:52,280 Speaker 1: in particular, where we saw the leak of the draft 56 00:03:52,440 --> 00:03:55,600 Speaker 1: and then we saw that nothing had changed when the 57 00:03:55,640 --> 00:03:59,520 Speaker 1: opinion came out. Does that show that Justice Roberts doesn't 58 00:03:59,520 --> 00:04:02,200 Speaker 1: have the influence he used to have, that he couldn't 59 00:04:02,200 --> 00:04:05,840 Speaker 1: convince one of the Conservatives to not be so radical 60 00:04:06,120 --> 00:04:09,520 Speaker 1: not actually do away with Roe v. Wade. I think 61 00:04:09,560 --> 00:04:13,920 Speaker 1: that's basically right. I would add um some other thoughts 62 00:04:14,000 --> 00:04:17,000 Speaker 1: on that. One is that the very fact of the 63 00:04:17,120 --> 00:04:20,919 Speaker 1: league might have affected the dynamic. You know, there's still 64 00:04:21,040 --> 00:04:23,640 Speaker 1: no good answer to the question of who leaked this 65 00:04:23,760 --> 00:04:27,680 Speaker 1: and why, But one of the leading hypotheses is that 66 00:04:27,720 --> 00:04:31,960 Speaker 1: it was somebody who wanted to hold the other Conservatives 67 00:04:32,440 --> 00:04:34,800 Speaker 1: to justice the leader's opinion, and the thought was that 68 00:04:34,839 --> 00:04:37,359 Speaker 1: if they leaked it, then there wouldn't be a defection. 69 00:04:37,600 --> 00:04:39,120 Speaker 1: I don't know whether that's true or not, but but 70 00:04:39,160 --> 00:04:42,000 Speaker 1: if it is, that could be part of the explanation. 71 00:04:42,520 --> 00:04:44,760 Speaker 1: I think a bigger piece of the explanation is that 72 00:04:44,839 --> 00:04:47,719 Speaker 1: Chief sus As Roberts didn't really offer that much of 73 00:04:47,760 --> 00:04:52,240 Speaker 1: an alternative. You read his opinion and he says, well, 74 00:04:52,279 --> 00:04:56,960 Speaker 1: we can uphold the Mississippi ban, but we don't need 75 00:04:57,040 --> 00:05:00,640 Speaker 1: to say where the line is. We we're just going 76 00:05:00,680 --> 00:05:04,320 Speaker 1: to get rid of viability and we'll do something else eventually. 77 00:05:05,080 --> 00:05:08,560 Speaker 1: I think for the justices who might have been amenable 78 00:05:08,640 --> 00:05:11,600 Speaker 1: to some sort of compromise, and the theory was that 79 00:05:11,960 --> 00:05:14,920 Speaker 1: Justice Kavanaugh was the most likely one, he didn't really 80 00:05:15,000 --> 00:05:18,720 Speaker 1: get something that looked like a real alternative. What he 81 00:05:18,800 --> 00:05:22,080 Speaker 1: got was well, let's wait and see. Uh. And I 82 00:05:22,120 --> 00:05:25,560 Speaker 1: think that, um, that was just not enough for him. 83 00:05:25,800 --> 00:05:29,599 Speaker 1: I do realize that Chief Justice roberts basic orientation is 84 00:05:29,680 --> 00:05:32,080 Speaker 1: towards wait and see, right, and it's not necessary to 85 00:05:32,120 --> 00:05:35,000 Speaker 1: decide a question. It's necessary not to decide the question. 86 00:05:35,040 --> 00:05:38,200 Speaker 1: He actually says that in his concurrence in the Dobb's case. 87 00:05:38,720 --> 00:05:44,080 Speaker 1: But that's a sort of procedural posture, it's not an alternative, 88 00:05:44,120 --> 00:05:50,120 Speaker 1: substantive compromise. Looking at the reasoning of the majority in 89 00:05:50,160 --> 00:05:53,480 Speaker 1: these six to three cases, in the hot button issue cases, 90 00:05:54,080 --> 00:05:57,960 Speaker 1: can you describe in general the theory that the conservative 91 00:05:58,000 --> 00:06:02,120 Speaker 1: majority used to come to their conclusion? Was it TEXTUALI 92 00:06:02,120 --> 00:06:06,240 Speaker 1: is um originalism? It certainly wasn't the living Constitution. Well, so, 93 00:06:06,360 --> 00:06:12,200 Speaker 1: first we want to distinguish between constitutional cases and statutory cases. 94 00:06:12,360 --> 00:06:17,279 Speaker 1: So the big constitutional cases are, of course the abortion decision, Bruin, 95 00:06:17,600 --> 00:06:23,240 Speaker 1: the Second Amendment case, and then two of the three 96 00:06:23,360 --> 00:06:26,840 Speaker 1: main religion cases, although the big ones Kennedy against Bremerton 97 00:06:27,279 --> 00:06:32,960 Speaker 1: and the main case involving the subsidies for the religious schools. 98 00:06:33,000 --> 00:06:37,240 Speaker 1: So those are all constitutional cases, and they all purport 99 00:06:38,000 --> 00:06:42,520 Speaker 1: to use originalism. Or in Bruin they say the method 100 00:06:42,560 --> 00:06:48,680 Speaker 1: of text, original understanding and history or text and tradition, history, etcetera. 101 00:06:48,960 --> 00:06:53,560 Speaker 1: So they all are very historically focused. In the biggest 102 00:06:53,640 --> 00:06:58,640 Speaker 1: statutory case, which is the West Virginia against E. P A. There, 103 00:06:58,640 --> 00:07:01,440 Speaker 1: of course it's not about original meaning of the Constitution. 104 00:07:01,480 --> 00:07:05,640 Speaker 1: It's about the scope of the delegation from Congress to 105 00:07:06,040 --> 00:07:10,120 Speaker 1: the agency, and there that is purports to be textualism. 106 00:07:10,120 --> 00:07:12,240 Speaker 1: Now you'll notice I said in both cases purports to 107 00:07:12,280 --> 00:07:15,800 Speaker 1: be originalists, purports to be textualists. That's because I think 108 00:07:16,120 --> 00:07:19,520 Speaker 1: that it's very hard to take seriously the notion that 109 00:07:19,640 --> 00:07:23,760 Speaker 1: what we're seeing here is a methodological disagreement as opposed 110 00:07:23,760 --> 00:07:28,400 Speaker 1: to an ideological disagreement. Long ago there were liberal originalists 111 00:07:28,400 --> 00:07:30,560 Speaker 1: who Go Black was the leading one. There are some 112 00:07:30,640 --> 00:07:33,560 Speaker 1: of them in the legal academy, and there have been 113 00:07:33,800 --> 00:07:39,120 Speaker 1: conservative purposivests or conservative living constitutionalists. So I think that 114 00:07:39,400 --> 00:07:43,120 Speaker 1: this court is keen to speak the language of text, 115 00:07:43,160 --> 00:07:47,000 Speaker 1: history and tradition, but that is mostly a sort of 116 00:07:47,040 --> 00:07:51,240 Speaker 1: post talk rationalization for results that are being reached on 117 00:07:51,400 --> 00:07:54,480 Speaker 1: ideological grounds. And I'll say that that's largely two of 118 00:07:54,520 --> 00:07:59,400 Speaker 1: the dissenters as well. The democratic appointees also have ideological drawers, 119 00:07:59,760 --> 00:08:03,560 Speaker 1: and they have a preferred methodology. But in these cases 120 00:08:03,560 --> 00:08:07,040 Speaker 1: in which the law is underdeterminate, that is to say, 121 00:08:07,240 --> 00:08:10,280 Speaker 1: you know, there are arguments for overturning, the arguments for retaining, 122 00:08:10,280 --> 00:08:15,240 Speaker 1: the arguments for extending, for cutting back right, the justices predispositions, 123 00:08:15,320 --> 00:08:19,240 Speaker 1: their values are going to do the work regardless of 124 00:08:19,560 --> 00:08:23,040 Speaker 1: the rhetorical register in which they write the opinion at 125 00:08:23,040 --> 00:08:25,760 Speaker 1: the end of the day. I've asked this question of 126 00:08:26,120 --> 00:08:29,480 Speaker 1: others because it stands out in my mind. What will 127 00:08:29,600 --> 00:08:32,880 Speaker 1: oral arguments look like next term? Will the lawyers be 128 00:08:33,360 --> 00:08:37,880 Speaker 1: arguing the history of the seventeen and eighteen hundreds? Does 129 00:08:37,920 --> 00:08:42,080 Speaker 1: precedent matter anymore? Starry decisive? You know, it's very hard. 130 00:08:42,160 --> 00:08:45,400 Speaker 1: That's a very good question. I think that in one's 131 00:08:45,520 --> 00:08:49,280 Speaker 1: briefs it will be very important to load up on 132 00:08:49,760 --> 00:08:55,719 Speaker 1: textual arguments, historical arguments, and then the traditional doctrinal reasons 133 00:08:55,720 --> 00:08:57,840 Speaker 1: to retain precedent if that's what you want to do, 134 00:08:57,960 --> 00:09:00,240 Speaker 1: or overturnative that's the way you want to go. It's 135 00:09:00,280 --> 00:09:05,319 Speaker 1: harder to engage in that kind of nitty gritty historical 136 00:09:05,760 --> 00:09:08,400 Speaker 1: back and forth during an oral argument, right that is 137 00:09:08,440 --> 00:09:10,320 Speaker 1: to say, if you if you think about the way 138 00:09:10,480 --> 00:09:15,600 Speaker 1: professional historians practice history, they don't do it through oral arguments. 139 00:09:15,640 --> 00:09:19,480 Speaker 1: They do it through archival research. They publish papers, they 140 00:09:19,520 --> 00:09:22,720 Speaker 1: have lengthy footnotes, they have excerpts. It's not the kind 141 00:09:22,760 --> 00:09:28,920 Speaker 1: of question that is amenable to the mechanisms by which 142 00:09:29,000 --> 00:09:32,880 Speaker 1: appellate courts have traditionally decided cases. And that's frankly one 143 00:09:32,920 --> 00:09:37,320 Speaker 1: reason why this methodology has not traditionally been used, Right, 144 00:09:37,360 --> 00:09:41,240 Speaker 1: the fact that we have typically expected justices to pose 145 00:09:41,320 --> 00:09:45,880 Speaker 1: hypothetical questions and then the lawyers sort of explain why 146 00:09:46,040 --> 00:09:49,600 Speaker 1: the rule for which they're arguing leads to one result 147 00:09:49,840 --> 00:09:52,960 Speaker 1: or another result. All of that leads one to think 148 00:09:53,000 --> 00:09:56,120 Speaker 1: that this is a kind of common law enterprise, one 149 00:09:56,120 --> 00:09:59,280 Speaker 1: in which the courts build case by case, they explore 150 00:09:59,559 --> 00:10:02,520 Speaker 1: the implic cations of one rule versus another rule. And 151 00:10:02,559 --> 00:10:05,760 Speaker 1: this idea that one is going to reach down deeply 152 00:10:05,800 --> 00:10:10,560 Speaker 1: into the history and find something analogous in the eighteenth 153 00:10:10,679 --> 00:10:13,680 Speaker 1: or nineteen centuries, as Justice Thomas says you ought to 154 00:10:13,720 --> 00:10:17,800 Speaker 1: do in the Second Amendment case. Right, that's quite radical 155 00:10:17,840 --> 00:10:20,560 Speaker 1: and quite different. So I actually don't know whether the 156 00:10:20,720 --> 00:10:23,440 Speaker 1: oral arguments are going to start looking very different. I 157 00:10:23,520 --> 00:10:28,120 Speaker 1: suspect they won't because the justices are not historians, their lawyers, 158 00:10:28,480 --> 00:10:32,160 Speaker 1: and so while they might ultimately write opinions that, you know, 159 00:10:32,240 --> 00:10:35,920 Speaker 1: tell us what Lord Hale thought and what the state 160 00:10:35,960 --> 00:10:38,960 Speaker 1: of play was in the colonies, that's not going to 161 00:10:39,000 --> 00:10:42,079 Speaker 1: be the driver of the decisions. When I was looking 162 00:10:42,080 --> 00:10:44,440 Speaker 1: through the cases, I saw only one high profile case 163 00:10:44,440 --> 00:10:47,439 Speaker 1: where the liberal justices were able to form a majority 164 00:10:47,520 --> 00:10:50,719 Speaker 1: with the conservatives. The remain in Mexico case. As far 165 00:10:50,720 --> 00:10:53,880 Speaker 1: as high profile, do the liberal justices have any power 166 00:10:53,920 --> 00:10:56,800 Speaker 1: at all now except in dissent. But one case I 167 00:10:56,800 --> 00:11:00,960 Speaker 1: would add to that is the vaccine man for healthcare workers, 168 00:11:00,960 --> 00:11:03,680 Speaker 1: which was did come out five to four to uphold 169 00:11:04,440 --> 00:11:07,440 Speaker 1: that that mandate. Right, they split. They heard two cases 170 00:11:07,480 --> 00:11:10,320 Speaker 1: and decided them around the middle of the term. In 171 00:11:10,480 --> 00:11:15,920 Speaker 1: one they upheld the vaccination mandate for healthcare workers, and 172 00:11:15,960 --> 00:11:21,680 Speaker 1: in the other they invalidated the the OCEHA mandate for 173 00:11:22,559 --> 00:11:27,240 Speaker 1: large private employers. And in the case upholding the mandate, 174 00:11:27,360 --> 00:11:30,839 Speaker 1: they were able to swing enough justice to make to 175 00:11:30,880 --> 00:11:32,480 Speaker 1: make a difference so that you could say that the 176 00:11:32,520 --> 00:11:36,240 Speaker 1: liberals won that one. Well, yeah, that's just one additional case, 177 00:11:36,280 --> 00:11:38,960 Speaker 1: and it was one in which the procedural posture made 178 00:11:38,960 --> 00:11:42,320 Speaker 1: it relatively easy to do that. I think that there 179 00:11:42,400 --> 00:11:46,520 Speaker 1: still will be cases going forward in which it's possible 180 00:11:46,760 --> 00:11:50,120 Speaker 1: to peel off, you know, both Chief Justice Roberts and, 181 00:11:50,240 --> 00:11:54,520 Speaker 1: depending on the issue, one of Justices Kavanaugh, Barrett or 182 00:11:54,559 --> 00:11:57,439 Speaker 1: Gore such But you know, you've got to get to 183 00:11:57,440 --> 00:11:59,559 Speaker 1: to do that, and that's very hard. Right. So, on 184 00:11:59,600 --> 00:12:02,920 Speaker 1: a five to fourth court, it's relatively easy for the 185 00:12:03,000 --> 00:12:05,800 Speaker 1: Ford occasionally to pick up a fifth vote. It's much 186 00:12:05,840 --> 00:12:08,439 Speaker 1: harder for three to pick up a fourth and fifth vote. 187 00:12:08,760 --> 00:12:12,199 Speaker 1: Does this term support the idea in your mind of 188 00:12:12,520 --> 00:12:16,640 Speaker 1: adding justices to the court. Sure? That is to say, 189 00:12:16,960 --> 00:12:21,160 Speaker 1: I think that the Supreme Court right now is both 190 00:12:21,240 --> 00:12:26,600 Speaker 1: a symptom and to some extent a cause of our dysfunction. 191 00:12:27,200 --> 00:12:31,640 Speaker 1: What's happened over the past, you know, ten twenty years, 192 00:12:32,040 --> 00:12:36,120 Speaker 1: is that the increasing polarization we see in our politics 193 00:12:36,679 --> 00:12:40,160 Speaker 1: has spread to the court right so that for the 194 00:12:40,240 --> 00:12:43,840 Speaker 1: last several years and going forward, it's been true that 195 00:12:44,200 --> 00:12:48,640 Speaker 1: every Democratic appointee is substantially more liberal than every Republican appointee. 196 00:12:48,640 --> 00:12:53,520 Speaker 1: That wasn't true prior to Justices Suitor and Stevens leaving 197 00:12:53,559 --> 00:12:55,319 Speaker 1: the court, and even when Justice Kennedy was still on 198 00:12:55,360 --> 00:12:58,000 Speaker 1: the Court, he would occasionally be more liberal than one 199 00:12:58,000 --> 00:13:01,160 Speaker 1: of the Democratic appointees. So the Court has become a 200 00:13:01,240 --> 00:13:06,199 Speaker 1: highly part of an institution, and question is would adding 201 00:13:06,280 --> 00:13:10,560 Speaker 1: justices stop that? My answer is probably not, probably continue that. 202 00:13:11,160 --> 00:13:13,880 Speaker 1: But you know, if the country is on fire, as 203 00:13:13,960 --> 00:13:16,000 Speaker 1: it appears to be, you do whatever you can to 204 00:13:16,000 --> 00:13:19,120 Speaker 1: put out the fire. My view is sort of that, Yeah, 205 00:13:19,160 --> 00:13:22,800 Speaker 1: I'm not against it. I'm not actively proposing it though, 206 00:13:23,000 --> 00:13:26,199 Speaker 1: because it seems dead on arrival in the Senate. I mean, 207 00:13:26,280 --> 00:13:30,679 Speaker 1: Senators Mansion in Cinema can't even be moved to end 208 00:13:30,720 --> 00:13:34,640 Speaker 1: the filibuster for the purpose of adopting election law rules 209 00:13:34,720 --> 00:13:38,480 Speaker 1: to preserve the rudiments of democracy. I don't see that 210 00:13:38,520 --> 00:13:40,920 Speaker 1: they would do that to expand the Supreme Court, which 211 00:13:41,000 --> 00:13:44,760 Speaker 1: is a position that even President Biden doesn't seem to support. 212 00:13:44,840 --> 00:13:48,000 Speaker 1: So yeah, in a different political world, I might say 213 00:13:48,160 --> 00:13:50,800 Speaker 1: that's something worth doing. But in that different political world, 214 00:13:50,840 --> 00:13:53,600 Speaker 1: you might not need to. Coming up, Professor Michael Dorf 215 00:13:53,640 --> 00:13:55,120 Speaker 1: and I are going to talk about some of the 216 00:13:55,200 --> 00:13:58,120 Speaker 1: high profile cases coming up next term at the Court, 217 00:13:58,480 --> 00:14:02,520 Speaker 1: including affirmative action. You're listening to Bloomberg, please raise your 218 00:14:02,640 --> 00:14:07,280 Speaker 1: right hand and repeat after me, I Katanji Brown Jackson, 219 00:14:07,320 --> 00:14:12,080 Speaker 1: do solemnly swear, I, Katanji Brown Jackson, do solemnly swear 220 00:14:12,520 --> 00:14:15,199 Speaker 1: that I will support and defend the Constitution of the 221 00:14:15,280 --> 00:14:19,240 Speaker 1: United States against all enemies, foreign and domestic. That I 222 00:14:19,240 --> 00:14:22,480 Speaker 1: will support and defend the Constitution of the United States 223 00:14:22,520 --> 00:14:26,280 Speaker 1: against all enemies, foreign and domestic. On the last day 224 00:14:26,280 --> 00:14:29,880 Speaker 1: of the term, Katangi Brown Jackson was sworn in as 225 00:14:29,920 --> 00:14:33,600 Speaker 1: the one hundred sixteenth Associate Justice of the Supreme Court, 226 00:14:34,000 --> 00:14:36,720 Speaker 1: the first black woman to serve on the Court, and 227 00:14:36,800 --> 00:14:41,160 Speaker 1: her first term will include divisive cases on affirmative action, 228 00:14:41,400 --> 00:14:44,840 Speaker 1: gay rights, the environment, and election law. I've been talking 229 00:14:44,880 --> 00:14:48,720 Speaker 1: to constitutional law expert Michael Dorff, a professor at Cornell 230 00:14:48,800 --> 00:14:51,800 Speaker 1: Law School. It's always said that when a new justice 231 00:14:51,840 --> 00:14:54,560 Speaker 1: comes on the Court, there's a change in the dynamic. 232 00:14:54,920 --> 00:14:57,720 Speaker 1: But with this court, do you think that Justice Katanji 233 00:14:57,760 --> 00:15:01,840 Speaker 1: Brown Jackson will make a difference. I think yes. I 234 00:15:01,880 --> 00:15:05,640 Speaker 1: think that her presence will affect the dynamic at oral argument. 235 00:15:05,960 --> 00:15:09,600 Speaker 1: I think it will affect the dynamic of how descents 236 00:15:09,680 --> 00:15:13,120 Speaker 1: get written. I think it's significant now that all of 237 00:15:13,240 --> 00:15:17,600 Speaker 1: the justices likely to be in the minority in these 238 00:15:17,680 --> 00:15:22,360 Speaker 1: divided cases are women, and so all of that effects 239 00:15:22,440 --> 00:15:24,800 Speaker 1: the way in which cases are argued, the way in 240 00:15:24,840 --> 00:15:27,320 Speaker 1: which opinions and descents are written. The fact that we 241 00:15:27,360 --> 00:15:29,160 Speaker 1: now have to African Americans sitting on the court at 242 00:15:29,160 --> 00:15:32,400 Speaker 1: the same time, I think that takes away a little 243 00:15:32,440 --> 00:15:37,160 Speaker 1: bit of the rhetorical power that Justice Thomas might have had. 244 00:15:37,360 --> 00:15:40,160 Speaker 1: But the bottom line, of course, is that you're just 245 00:15:40,280 --> 00:15:44,160 Speaker 1: substituting Justice Jackson for the justice for whom she clerked, 246 00:15:44,240 --> 00:15:48,160 Speaker 1: Justice Brier, and that doesn't affect outcomes in you know, 247 00:15:48,280 --> 00:15:51,960 Speaker 1: more than a handful of probably low profile cases. Let's 248 00:15:51,960 --> 00:15:55,320 Speaker 1: discuss some of the cases for next term. There's one 249 00:15:55,360 --> 00:16:00,240 Speaker 1: involving gay rights where a website designer in Colorado used 250 00:16:00,280 --> 00:16:03,400 Speaker 1: to start creating pages for same sex weddings because it 251 00:16:03,400 --> 00:16:06,200 Speaker 1: would be at odds with her faith. So in principle, 252 00:16:06,240 --> 00:16:08,520 Speaker 1: this isn't a gay rights case. In principle, this is 253 00:16:08,520 --> 00:16:14,280 Speaker 1: a case about exemptions from anti discrimination law. And if 254 00:16:14,320 --> 00:16:19,000 Speaker 1: I were arguing this to defend the Colorado Anti discrimination Provision, 255 00:16:19,480 --> 00:16:22,600 Speaker 1: I would emphasize that this is not about gay rights. 256 00:16:22,600 --> 00:16:26,720 Speaker 1: But if you allow exceptions franti discrimination law for people 257 00:16:26,720 --> 00:16:29,240 Speaker 1: who are opposed to gay rights or same sex marriage 258 00:16:29,320 --> 00:16:32,320 Speaker 1: or whatever it is. Then you need some good reason 259 00:16:32,360 --> 00:16:35,520 Speaker 1: why you're not going to allow exceptions from race discrimination, 260 00:16:35,640 --> 00:16:39,880 Speaker 1: sex discrimination, veteran status discrimination. That in that sense, this 261 00:16:40,080 --> 00:16:43,120 Speaker 1: really isn't a gay rights case at all. It's a 262 00:16:43,160 --> 00:16:47,720 Speaker 1: case about whether people get to say that they don't 263 00:16:47,760 --> 00:16:51,360 Speaker 1: like complying with some law because it violates either their 264 00:16:51,400 --> 00:16:55,560 Speaker 1: religious principles or their expressive principles, and whether you're going 265 00:16:55,640 --> 00:16:59,360 Speaker 1: to allow that to undercut anti discrimination law. The last 266 00:16:59,400 --> 00:17:01,680 Speaker 1: time this issue was up before them, they ducked it 267 00:17:02,000 --> 00:17:05,520 Speaker 1: in the Masterpiece cake Shop case by finding that there 268 00:17:05,640 --> 00:17:09,560 Speaker 1: was subjective illicit motive to discriminate against religion. Here, I 269 00:17:09,560 --> 00:17:11,879 Speaker 1: don't think it will be so easy to duck the case, 270 00:17:12,200 --> 00:17:14,960 Speaker 1: but I do think that the case's main implications will 271 00:17:15,000 --> 00:17:17,920 Speaker 1: go well beyond gay rights, and in that sense, I 272 00:17:17,960 --> 00:17:21,119 Speaker 1: would think of it as a question more about the 273 00:17:21,200 --> 00:17:24,040 Speaker 1: scope of free speech and pre exercise of religion and 274 00:17:24,200 --> 00:17:27,560 Speaker 1: less about gay rights, although of course you could imagine 275 00:17:27,800 --> 00:17:31,920 Speaker 1: the justices. Certainly, Justice Alito has hinted at this, saying, well, 276 00:17:31,960 --> 00:17:33,680 Speaker 1: it would be different if this were a race case, 277 00:17:33,680 --> 00:17:37,359 Speaker 1: because there's a compelling interest in overcoming race discrimination, and 278 00:17:37,400 --> 00:17:40,400 Speaker 1: maybe there isn't such an interest in overcoming bias against 279 00:17:40,480 --> 00:17:43,040 Speaker 1: lgbt Q plus individuals. I think that would be a 280 00:17:43,160 --> 00:17:45,879 Speaker 1: terrible mistake, but I could see them doing that, and 281 00:17:45,920 --> 00:17:47,840 Speaker 1: in that case, I would say, well, then they've turned 282 00:17:47,840 --> 00:17:50,359 Speaker 1: it into a gay rights case. There are two affirmative 283 00:17:50,359 --> 00:17:54,720 Speaker 1: action cases coming before the Justices challenging admission policies at 284 00:17:54,760 --> 00:17:58,560 Speaker 1: Harvard College and the University of North Carolina, and several 285 00:17:58,600 --> 00:18:03,159 Speaker 1: of the justices have ex rest distrust or disapproval of 286 00:18:03,240 --> 00:18:06,960 Speaker 1: the theory of affirmative action, not just express distrust. I 287 00:18:07,000 --> 00:18:10,359 Speaker 1: think that there are probably six votes on this Court 288 00:18:10,640 --> 00:18:13,600 Speaker 1: that includes Chief Justice Roberts, who has been pretty strong 289 00:18:13,640 --> 00:18:17,600 Speaker 1: on this, to say that the Constitution in the University 290 00:18:17,600 --> 00:18:21,320 Speaker 1: of North Carolina case, because that's a state actor, and 291 00:18:21,720 --> 00:18:26,320 Speaker 1: the federal statute in the Harvard case simply forbid any 292 00:18:26,960 --> 00:18:31,160 Speaker 1: use of race in university admissions, and then maybe by 293 00:18:31,160 --> 00:18:35,920 Speaker 1: extension in later cases in employment and other contexts. Their 294 00:18:36,040 --> 00:18:40,600 Speaker 1: view is that the Constitution and federal anti inscrimination law 295 00:18:40,800 --> 00:18:45,120 Speaker 1: require color blindness, meaning you can't take race into account 296 00:18:45,440 --> 00:18:48,520 Speaker 1: even as a so called plus factor, which has been 297 00:18:48,520 --> 00:18:51,239 Speaker 1: the way that colleges and universities have been doing it 298 00:18:51,480 --> 00:18:54,360 Speaker 1: under the approval of the Supreme Court since at least 299 00:18:55,160 --> 00:18:59,359 Speaker 1: eight in the Hockey case. The Roberts Court has in 300 00:18:59,760 --> 00:19:04,440 Speaker 1: the hasked purported to apply the University of Michigan decision 301 00:19:04,480 --> 00:19:07,720 Speaker 1: for the Grooder case from early in the two thousands, 302 00:19:07,720 --> 00:19:10,240 Speaker 1: but they haven't had a case that presented that since 303 00:19:10,280 --> 00:19:13,960 Speaker 1: Justice Kennedy retired. So now I think the dynamic shifts. 304 00:19:13,960 --> 00:19:16,639 Speaker 1: So I would be very surprised to see the Court 305 00:19:16,960 --> 00:19:20,879 Speaker 1: uphold the current standard under which race is permitted as 306 00:19:20,880 --> 00:19:23,000 Speaker 1: a so called plus factor but not as a quota. 307 00:19:23,359 --> 00:19:26,480 Speaker 1: I expect them to say something like it's absolutely forbidden 308 00:19:26,520 --> 00:19:32,199 Speaker 1: except to remedy specific instances of identified unconstitutional Now, the 309 00:19:32,240 --> 00:19:34,560 Speaker 1: only way they could avoid doing that is they could 310 00:19:34,720 --> 00:19:38,080 Speaker 1: strike down either the Harvard or the University of North 311 00:19:38,080 --> 00:19:41,880 Speaker 1: Carolina admissions program, or I guess both on some narrower basis. 312 00:19:41,920 --> 00:19:45,919 Speaker 1: There are allegations and some evidence in the record that 313 00:19:46,200 --> 00:19:50,720 Speaker 1: the colleges are just engaged in sort of open discrimination 314 00:19:50,800 --> 00:19:54,160 Speaker 1: against Asian Americans, and you could say that that's illegal 315 00:19:54,200 --> 00:19:57,239 Speaker 1: without saying anything about it firmative action more broadly. So 316 00:19:57,280 --> 00:19:59,720 Speaker 1: that's a possibility, but again you would need a court 317 00:19:59,760 --> 00:20:02,760 Speaker 1: that inclined to want to find a narrow ground and 318 00:20:02,800 --> 00:20:04,760 Speaker 1: I don't think they took these cases to find a 319 00:20:04,880 --> 00:20:09,199 Speaker 1: narrow ground. There's a North Carolina redistricting case where the 320 00:20:09,240 --> 00:20:12,840 Speaker 1: Court is going to consider adopting this theory called the 321 00:20:12,960 --> 00:20:18,560 Speaker 1: independent state legislature theory, and three or four justices, depending 322 00:20:18,600 --> 00:20:22,040 Speaker 1: on how you look at it, have already expressed some 323 00:20:22,080 --> 00:20:25,280 Speaker 1: approval for this. But this could throw a real ranch 324 00:20:25,320 --> 00:20:28,919 Speaker 1: into elections in some states. Right, So the spaces for 325 00:20:28,960 --> 00:20:32,639 Speaker 1: this theory is that the Constitution, both in Article one 326 00:20:32,760 --> 00:20:36,600 Speaker 1: with respect to congressional elections and an Article two and 327 00:20:36,920 --> 00:20:40,480 Speaker 1: by extension the twelfth Amendment with respect to presidential elections, 328 00:20:40,640 --> 00:20:46,080 Speaker 1: gives to state legislatures the power to set the rules 329 00:20:46,160 --> 00:20:51,120 Speaker 1: governing elections. Now, up until a little over twenty years ago, 330 00:20:51,920 --> 00:20:57,400 Speaker 1: everybody understood that legislature meant well the state legislative process, 331 00:20:57,480 --> 00:21:01,879 Speaker 1: which includes the governor's signature, and it includes judicial review 332 00:21:01,960 --> 00:21:05,119 Speaker 1: by the state courts pursuing too the state constitutions. But 333 00:21:06,040 --> 00:21:10,800 Speaker 1: beginning in two thousand, in a concurrence by three justices 334 00:21:10,800 --> 00:21:13,520 Speaker 1: in bush Bee Gore, we have had this idea that 335 00:21:13,920 --> 00:21:18,200 Speaker 1: when exercising its role to set election rules with respect 336 00:21:18,200 --> 00:21:23,359 Speaker 1: to federal elections, state legislatures have some independent authorities and 337 00:21:23,400 --> 00:21:25,800 Speaker 1: I should say, although none of the justices except for 338 00:21:25,880 --> 00:21:28,560 Speaker 1: Justice Thomas, who were part of that concurrence, the other 339 00:21:28,600 --> 00:21:32,920 Speaker 1: two Justices Ran Kishins Clere have passed away, Justice Thomas remains, 340 00:21:33,000 --> 00:21:36,920 Speaker 1: and the architects of that theory were the Bush lawyers, 341 00:21:37,040 --> 00:21:41,440 Speaker 1: including Chief Justice Robert and I believe Justices Kavanaugh and Barrett, 342 00:21:41,440 --> 00:21:44,640 Speaker 1: as relatively young attorneys, worked on that case as well. 343 00:21:44,840 --> 00:21:47,440 Speaker 1: And so there is reason to think that there will 344 00:21:47,480 --> 00:21:51,119 Speaker 1: be five votes for some version of this theory that 345 00:21:51,240 --> 00:21:54,440 Speaker 1: says that the state legislature acts in a way that's 346 00:21:54,560 --> 00:21:59,720 Speaker 1: independent of the state constitution, state judicial review. And so 347 00:22:00,040 --> 00:22:02,399 Speaker 1: with so, do you think it's a lot that the 348 00:22:02,480 --> 00:22:06,879 Speaker 1: Court will adopt this theory. I have some hope that 349 00:22:07,000 --> 00:22:11,399 Speaker 1: they won't endorse the most aggressive view of that, based 350 00:22:11,400 --> 00:22:13,840 Speaker 1: in part on the fact that there has been considerable 351 00:22:13,840 --> 00:22:18,400 Speaker 1: research in the last several years by scholars going back 352 00:22:18,440 --> 00:22:21,120 Speaker 1: at to look at the history to say that this 353 00:22:21,240 --> 00:22:25,359 Speaker 1: idea just is made up. That is, it's pretty clear 354 00:22:25,400 --> 00:22:28,760 Speaker 1: that the original meaning of state legislature was state legislature 355 00:22:28,960 --> 00:22:33,239 Speaker 1: within the context of the state constitutional systems. Because if 356 00:22:33,280 --> 00:22:35,199 Speaker 1: it doesn't mean that, then you have all sorts of 357 00:22:35,240 --> 00:22:39,320 Speaker 1: weird paradoxes like what happens if the governor of the 358 00:22:39,359 --> 00:22:43,080 Speaker 1: state vetos a bill. Does that mean that that bill 359 00:22:43,160 --> 00:22:45,960 Speaker 1: is now law with respect to federal elections but not 360 00:22:46,119 --> 00:22:51,040 Speaker 1: with respect to the state elections that are conducted simultaneously. 361 00:22:51,240 --> 00:22:53,480 Speaker 1: How does that affect voto qualifications, etcetera. So there are 362 00:22:53,520 --> 00:22:56,440 Speaker 1: all sorts of problems with the sort of most robust 363 00:22:56,600 --> 00:23:00,399 Speaker 1: version of the independent state legislature theory. And of course 364 00:23:00,720 --> 00:23:06,000 Speaker 1: it's that theory that President Trump, aided by the likes 365 00:23:06,040 --> 00:23:11,480 Speaker 1: of John Eastman and others, were pushing as the excuse 366 00:23:11,800 --> 00:23:16,119 Speaker 1: for overturning the results of election. If it's endorsed by 367 00:23:16,119 --> 00:23:19,480 Speaker 1: the Supreme Court, then they could do it potentially in 368 00:23:19,560 --> 00:23:22,760 Speaker 1: a way that's legal in the next election. Approval of 369 00:23:22,800 --> 00:23:26,640 Speaker 1: the Court is at the lowest in modern history. Yet, 370 00:23:26,720 --> 00:23:29,000 Speaker 1: just as a leader in the abortion decision said, the 371 00:23:29,040 --> 00:23:33,920 Speaker 1: Court isn't concern with public opinion, but should they be? 372 00:23:33,920 --> 00:23:36,359 Speaker 1: Does the public have to have confidence in the Court 373 00:23:36,400 --> 00:23:42,480 Speaker 1: as an institution. So over the long run, whatever they say, 374 00:23:42,720 --> 00:23:46,919 Speaker 1: the justices do in fact act in a way that 375 00:23:47,040 --> 00:23:51,120 Speaker 1: shows that they almost certainly care about public opinion. Right, 376 00:23:51,160 --> 00:23:54,680 Speaker 1: there's this famous line, and Mr Dooley, you know whether 377 00:23:54,720 --> 00:23:57,600 Speaker 1: the Constitution follows the flag. The Supreme Court follows the 378 00:23:57,600 --> 00:24:01,280 Speaker 1: election return. That was at the turn of the nineteen 379 00:24:01,520 --> 00:24:05,320 Speaker 1: twenty centuries, and so that's been true throughout our history. Right, 380 00:24:05,359 --> 00:24:10,960 Speaker 1: the Court has been a political and politicized institution forever. 381 00:24:11,160 --> 00:24:15,440 Speaker 1: It was true at the end of the Adams administration, 382 00:24:15,520 --> 00:24:18,840 Speaker 1: going into the Jefferson administration. It was certainly true leading 383 00:24:18,880 --> 00:24:21,600 Speaker 1: up to the Civil War, it was true leading up 384 00:24:21,600 --> 00:24:24,840 Speaker 1: to enduring the New Deal, and it's true today. It's 385 00:24:24,920 --> 00:24:30,520 Speaker 1: also the case that we have an ideal of blind justice. Right, 386 00:24:30,640 --> 00:24:33,840 Speaker 1: the judges and justices are not supposed to be swayed 387 00:24:34,040 --> 00:24:37,240 Speaker 1: by public opinion, and I think everybody who believes in 388 00:24:37,280 --> 00:24:40,160 Speaker 1: the rule of law believes that that's true to some extent. 389 00:24:40,440 --> 00:24:44,679 Speaker 1: So they shouldn't vow to pressure, they shouldn't vow to threat. 390 00:24:44,840 --> 00:24:47,560 Speaker 1: We can all agree on that. At the same time, 391 00:24:48,600 --> 00:24:54,160 Speaker 1: their role in interpreting the Constitution is one that constrains 392 00:24:54,440 --> 00:24:58,439 Speaker 1: and to some extent defines the democratic process, and so 393 00:24:58,560 --> 00:25:03,119 Speaker 1: it's inevitable that the democratic process is going to push back, 394 00:25:03,680 --> 00:25:06,600 Speaker 1: and that gets us to a sort of basic debate 395 00:25:06,600 --> 00:25:09,040 Speaker 1: about what it is that they're doing. Right, So, the 396 00:25:09,160 --> 00:25:13,679 Speaker 1: justices who purport to be originalists say, well, they're just 397 00:25:13,760 --> 00:25:18,119 Speaker 1: preserving the Constitution. Uh. And so modern public opinion is 398 00:25:18,359 --> 00:25:21,800 Speaker 1: completely irrelevant because it didn't affect what people met in 399 00:25:21,880 --> 00:25:25,879 Speaker 1: seventeen eight or sev or eighteen sixty eight, whenever the 400 00:25:25,880 --> 00:25:29,920 Speaker 1: relevant provision came into effect. Um. But if you think 401 00:25:30,000 --> 00:25:33,480 Speaker 1: that the reason the Constitution binds us today is not 402 00:25:33,760 --> 00:25:36,520 Speaker 1: that a bunch of people, um that excluded women, that 403 00:25:36,600 --> 00:25:40,560 Speaker 1: included enslaved African Americans, that excluded Native Americans, that excluded 404 00:25:41,400 --> 00:25:44,840 Speaker 1: white men without property at least the original Constitution. If 405 00:25:44,880 --> 00:25:47,760 Speaker 1: you think that it's not their act that made the 406 00:25:47,800 --> 00:25:55,400 Speaker 1: Constitution law, but a sort of ongoing experiment across generations, 407 00:25:56,119 --> 00:25:59,560 Speaker 1: then public opinion is relevant not only to you know 408 00:25:59,600 --> 00:26:02,040 Speaker 1: what you're fraid because you don't want to people to 409 00:26:02,080 --> 00:26:04,879 Speaker 1: try to assassinate you, but it's relevant to the actual 410 00:26:04,920 --> 00:26:10,600 Speaker 1: meaning of the Constitution because it's the understanding and tacit 411 00:26:10,680 --> 00:26:14,919 Speaker 1: consent that ultimately makes the Constitution legitimate. Thanks so much, Michael. 412 00:26:15,119 --> 00:26:19,879 Speaker 1: That's Professor Michael Dorff of Cornell Law School. Eight days 413 00:26:19,920 --> 00:26:23,920 Speaker 1: after the Supreme Court struck down New York Central gun law, 414 00:26:24,320 --> 00:26:28,119 Speaker 1: the state's lawmakers approved a sweeping overhaul of New York's 415 00:26:28,119 --> 00:26:33,200 Speaker 1: handgun licensing rules. The new gun legislation severely limits where 416 00:26:33,240 --> 00:26:37,080 Speaker 1: guns can be carried, includes a strict permitting process for 417 00:26:37,200 --> 00:26:41,880 Speaker 1: concealed carry licenses, and requires background checks to buy ammunition, 418 00:26:42,000 --> 00:26:45,520 Speaker 1: among other things. The law will almost certainly be challenged 419 00:26:45,520 --> 00:26:49,359 Speaker 1: in court. My guest is Andrew Willinger, executive director of 420 00:26:49,359 --> 00:26:53,160 Speaker 1: the Duke Center for Firearms Law. So, even though this 421 00:26:53,240 --> 00:26:56,879 Speaker 1: is a redo, there is this strict permitting process for 422 00:26:57,080 --> 00:27:03,119 Speaker 1: concealed carry licenses, which includes in person interviews for character references, 423 00:27:03,400 --> 00:27:07,439 Speaker 1: turning in a list of social media accounts, etcetera. Is 424 00:27:07,440 --> 00:27:12,359 Speaker 1: there a problem with having a strict permitting process like that. So, 425 00:27:12,520 --> 00:27:14,840 Speaker 1: as you mentioned, so that the new New York law, 426 00:27:15,040 --> 00:27:18,480 Speaker 1: you know, gets rid of the proper cause requirement which 427 00:27:18,520 --> 00:27:21,240 Speaker 1: the Supreme Court struck down, but it does make other 428 00:27:21,320 --> 00:27:25,280 Speaker 1: moves to shore up the permitting process by requiring these 429 00:27:25,320 --> 00:27:28,000 Speaker 1: types of you know, submissions of information, coming in person 430 00:27:28,040 --> 00:27:31,119 Speaker 1: for an interview, And the Court in its opinion actually 431 00:27:31,600 --> 00:27:35,760 Speaker 1: says that, you know, in general, a shall issue permit regime, 432 00:27:36,080 --> 00:27:38,000 Speaker 1: which is what New York will now be placed in 433 00:27:38,040 --> 00:27:42,160 Speaker 1: that category is permissible but still subject to an as 434 00:27:42,200 --> 00:27:45,720 Speaker 1: applied challenge. So this will really depend how the new 435 00:27:45,800 --> 00:27:49,560 Speaker 1: system functions and practice if it results in a long 436 00:27:49,640 --> 00:27:53,200 Speaker 1: waiting period. For example, for applicants that are seeking a permit, 437 00:27:53,600 --> 00:27:55,920 Speaker 1: they may actually have a challenge they can bring saying 438 00:27:55,960 --> 00:28:00,560 Speaker 1: that in practice the system is too burdensome. What about 439 00:28:00,880 --> 00:28:04,840 Speaker 1: the applicants having to complete sixteen hours of in person 440 00:28:04,920 --> 00:28:09,200 Speaker 1: firearms training, two hours of training at a firing range, 441 00:28:09,200 --> 00:28:12,760 Speaker 1: and they have to prove their shooting proficiency. Right, So 442 00:28:12,840 --> 00:28:15,399 Speaker 1: this is uh an aspect of the law that I 443 00:28:15,440 --> 00:28:19,480 Speaker 1: think UH many people expected, right that, in conjunction with 444 00:28:19,680 --> 00:28:23,040 Speaker 1: removing the proper cause requirement, that there would be additional 445 00:28:23,440 --> 00:28:27,720 Speaker 1: training requirements. That's an area that some states have focused on. 446 00:28:28,280 --> 00:28:31,480 Speaker 1: I think that's something that is likely to be a 447 00:28:31,560 --> 00:28:36,160 Speaker 1: permissible even under Bruin. Bruin doesn't say anything about training requirements, 448 00:28:36,520 --> 00:28:39,240 Speaker 1: um and to the extent that these are actually, you know, 449 00:28:39,400 --> 00:28:43,760 Speaker 1: requirements that an applicant go you know, to to shooting 450 00:28:43,840 --> 00:28:46,200 Speaker 1: range for example, you know, prove that they are able 451 00:28:46,240 --> 00:28:49,760 Speaker 1: to safely handle the gun. Those are things that seem 452 00:28:49,760 --> 00:28:54,280 Speaker 1: probably fine under the Court's approach and Bruin. The legislation 453 00:28:54,880 --> 00:28:58,240 Speaker 1: sets out a list of sensitive places where you can't 454 00:28:58,360 --> 00:29:02,960 Speaker 1: carry conceal weapon and it's quite extensive. Airports, bars and 455 00:29:03,040 --> 00:29:09,400 Speaker 1: restaurants that serve alcohol, courthouses, daycare facilities, playgrounds, etcetera. Educational institutions, 456 00:29:09,480 --> 00:29:14,520 Speaker 1: emergency shelters, entertainment venues, federal, state, and local government buildings, 457 00:29:14,520 --> 00:29:18,840 Speaker 1: health and medical facilities, houses of worship, libraries, polling sites, 458 00:29:19,240 --> 00:29:24,400 Speaker 1: public demonstrations and rallies, public transportation including subways and buses, 459 00:29:24,720 --> 00:29:28,720 Speaker 1: and Times Square. Some are already complaining that that list 460 00:29:28,880 --> 00:29:33,720 Speaker 1: is too extensive. With that list pass Supreme Court review, 461 00:29:33,800 --> 00:29:37,880 Speaker 1: what what's your analysis of that list of sensitive locations 462 00:29:37,880 --> 00:29:41,040 Speaker 1: which takes in a lot. That's a great question, and 463 00:29:41,240 --> 00:29:43,360 Speaker 1: this is a place where I think we're likely to 464 00:29:43,440 --> 00:29:47,480 Speaker 1: see litigation in the near future. The Court and Bruin 465 00:29:48,360 --> 00:29:53,400 Speaker 1: doesn't undertake an extensive analysis of what places can be 466 00:29:53,520 --> 00:29:57,600 Speaker 1: designated sensitive by a state government such that gun possession 467 00:29:57,640 --> 00:30:00,200 Speaker 1: can be banned there. So, all the Court says is 468 00:30:00,560 --> 00:30:03,360 Speaker 1: New York can't designate the entire island of Manhattan as 469 00:30:03,400 --> 00:30:06,440 Speaker 1: a sensitive place, But it doesn't engage in any kind 470 00:30:06,440 --> 00:30:11,040 Speaker 1: of detailed analysis about what places can be designated sensitive. 471 00:30:11,240 --> 00:30:13,840 Speaker 1: All the Court's opinion says is that you have to 472 00:30:14,200 --> 00:30:19,120 Speaker 1: analogize to historical places where guns were prohibited, where I 473 00:30:19,120 --> 00:30:22,040 Speaker 1: think that leaves us is that there are certain locations 474 00:30:22,080 --> 00:30:26,000 Speaker 1: on this list that New York has enacted that are 475 00:30:26,280 --> 00:30:30,160 Speaker 1: completely fine, right, government buildings, polling places. You know that 476 00:30:30,200 --> 00:30:32,400 Speaker 1: there's a limited set of places where we have a 477 00:30:32,480 --> 00:30:36,360 Speaker 1: historical tradition of banning guns in those locations, and that's 478 00:30:36,400 --> 00:30:39,720 Speaker 1: perfectly fine. But it's not as clear for things like 479 00:30:40,120 --> 00:30:45,360 Speaker 1: mass transit, Times Square, stadium, anywhere where alcohol is sold 480 00:30:45,440 --> 00:30:48,520 Speaker 1: or consumed. These are the types of locations where it 481 00:30:48,560 --> 00:30:52,640 Speaker 1: will be interesting to see how courts apply the Bruin tests. 482 00:30:52,680 --> 00:30:55,640 Speaker 1: And I think you know, this expansive list does come 483 00:30:56,240 --> 00:31:00,240 Speaker 1: relatively close to what the court cautioned against and Ruin, 484 00:31:00,320 --> 00:31:04,160 Speaker 1: which is that you can't simply say that because people 485 00:31:04,320 --> 00:31:08,480 Speaker 1: congregate in a given location and law enforcement officers are available, 486 00:31:08,800 --> 00:31:11,640 Speaker 1: that that is a sensitive place and guns are banned. Also, 487 00:31:12,240 --> 00:31:16,480 Speaker 1: private businesses will be presumed to be gun free zones 488 00:31:16,680 --> 00:31:20,520 Speaker 1: unless their owners put up signs saying guns are welcome. 489 00:31:21,120 --> 00:31:25,000 Speaker 1: And one of the Republican state senators said, that's going 490 00:31:25,040 --> 00:31:29,280 Speaker 1: to allow criminals to find soft target areas more easily. 491 00:31:29,880 --> 00:31:32,080 Speaker 1: Is that a good idea? You know? Having to put 492 00:31:32,080 --> 00:31:34,880 Speaker 1: signs up, this aspect of the law is is a 493 00:31:34,920 --> 00:31:37,840 Speaker 1: pretty novel approach. I'm pretty sure that New York is 494 00:31:37,880 --> 00:31:41,040 Speaker 1: the only state that has now taken this approach of 495 00:31:41,080 --> 00:31:43,480 Speaker 1: having the default rule be that if you are a 496 00:31:44,160 --> 00:31:47,960 Speaker 1: business owner, if you own private property, um, the default 497 00:31:48,080 --> 00:31:51,240 Speaker 1: is that no guns are permitted unless you put out 498 00:31:51,400 --> 00:31:54,920 Speaker 1: a clear sign or otherwise give permission for guns to 499 00:31:54,960 --> 00:31:58,120 Speaker 1: be brought into that location, you know, regardless of the 500 00:31:58,240 --> 00:32:00,720 Speaker 1: of the policy debate about it. In some ways a 501 00:32:00,760 --> 00:32:03,880 Speaker 1: clever move by New York, because there are cases out 502 00:32:03,880 --> 00:32:07,960 Speaker 1: there saying that the Second Amendment cannot trump the right 503 00:32:08,000 --> 00:32:13,280 Speaker 1: of a private property owner to exercise control over land 504 00:32:13,400 --> 00:32:15,760 Speaker 1: or a place of business or something like that. So 505 00:32:16,080 --> 00:32:17,920 Speaker 1: I think that's what you know, New York in some 506 00:32:18,000 --> 00:32:20,680 Speaker 1: ways is trying to insulate this from a legal challenge, 507 00:32:20,720 --> 00:32:23,840 Speaker 1: and it will be difficult for somebody to challenge this 508 00:32:24,000 --> 00:32:26,600 Speaker 1: aspect of the law under the cases that are out there. 509 00:32:26,600 --> 00:32:30,160 Speaker 1: Of course, there's still going to be some uncertainty after Bruin, 510 00:32:30,560 --> 00:32:32,560 Speaker 1: but my guess is that he would need to make 511 00:32:32,720 --> 00:32:37,240 Speaker 1: some kind of arguments that the cumulative effect of you know, 512 00:32:37,280 --> 00:32:41,840 Speaker 1: the private property ban and the Sensitive Places list taken 513 00:32:41,840 --> 00:32:46,720 Speaker 1: together nullify the right to carry arms in public for 514 00:32:46,720 --> 00:32:50,280 Speaker 1: self defense. It seems like in many respects, the law 515 00:32:50,440 --> 00:32:54,160 Speaker 1: is stricter than the old law. That's right, And I 516 00:32:54,160 --> 00:32:57,959 Speaker 1: think this is a really important observation about this New 517 00:32:58,080 --> 00:33:01,920 Speaker 1: York law is that you know, under the prior system 518 00:33:01,960 --> 00:33:04,960 Speaker 1: that the court struck down and bruin, New York had 519 00:33:05,000 --> 00:33:08,680 Speaker 1: this proper cause requirement, and that mandated that an applicant 520 00:33:08,760 --> 00:33:11,680 Speaker 1: shows some exceptional circumstance. Right, they had to show that 521 00:33:11,760 --> 00:33:15,520 Speaker 1: they themselves were threatened or that they had an extraordinary 522 00:33:15,600 --> 00:33:18,240 Speaker 1: reason why they needed to carry a gun in public. 523 00:33:18,320 --> 00:33:21,760 Speaker 1: But at the same time, New York was granting especially 524 00:33:22,120 --> 00:33:25,120 Speaker 1: you know, outside of New York City, in more rural areas, 525 00:33:25,160 --> 00:33:28,520 Speaker 1: they were granting permits to people to carry concealed weapons. 526 00:33:28,520 --> 00:33:30,600 Speaker 1: It was just a very high bar to meet, and 527 00:33:30,640 --> 00:33:34,719 Speaker 1: those permit holders had a pretty broad ability once they 528 00:33:34,760 --> 00:33:37,720 Speaker 1: received the permit to carry weapons in a number of 529 00:33:37,760 --> 00:33:41,560 Speaker 1: different public places. Now you have a system after this 530 00:33:41,640 --> 00:33:45,120 Speaker 1: new law where it might be easier as an initial 531 00:33:45,200 --> 00:33:48,080 Speaker 1: step to get the permit. Right, the proper cause requirement 532 00:33:48,120 --> 00:33:51,360 Speaker 1: is no longer there, But once you obtain a permit, 533 00:33:51,880 --> 00:33:54,640 Speaker 1: it doesn't give you the ability to carry guns in 534 00:33:54,720 --> 00:33:56,920 Speaker 1: anywhere near as many places as you could under the 535 00:33:56,920 --> 00:33:59,880 Speaker 1: prior system. So in many respects, it is going to 536 00:34:00,160 --> 00:34:03,520 Speaker 1: be stricter because people who have permits will be limited 537 00:34:03,800 --> 00:34:07,280 Speaker 1: in where they can actually bring up. Most experts look 538 00:34:07,280 --> 00:34:11,520 Speaker 1: at this, even you know, lawmakers say it's almost certain 539 00:34:11,600 --> 00:34:13,840 Speaker 1: that this is going to be challenged in court. I 540 00:34:13,880 --> 00:34:16,359 Speaker 1: agree with that. I think that we will certainly see 541 00:34:16,440 --> 00:34:18,960 Speaker 1: challenges to this loss. Some of them I think will 542 00:34:19,040 --> 00:34:22,279 Speaker 1: take a longer time to play out. Right, So I 543 00:34:22,320 --> 00:34:25,160 Speaker 1: think if you you know, if you imagine a challenge 544 00:34:25,360 --> 00:34:30,280 Speaker 1: to the permitting system itself, that's going to take time 545 00:34:30,400 --> 00:34:33,880 Speaker 1: because we'll need to see how this new system actually 546 00:34:33,880 --> 00:34:37,600 Speaker 1: works in practice, how long it takes an applicant to 547 00:34:37,640 --> 00:34:40,200 Speaker 1: go through the process of you know, going to an 548 00:34:40,200 --> 00:34:43,719 Speaker 1: in person interview, compiling all this information, submitting it, having 549 00:34:43,719 --> 00:34:46,400 Speaker 1: it reviewed by the licensing official. Right, And if this, 550 00:34:46,680 --> 00:34:49,640 Speaker 1: if this ends up taking a long time, then you'll 551 00:34:49,640 --> 00:34:53,560 Speaker 1: probably see people bringing as applied challenges to the permitting 552 00:34:53,600 --> 00:34:56,560 Speaker 1: system itself. You know. The other big area where I 553 00:34:56,600 --> 00:34:59,920 Speaker 1: think we'll see challenges is to the sensitive places probe 554 00:35:00,000 --> 00:35:03,280 Speaker 1: action UM. And this is something that will probably happen earlier, 555 00:35:03,600 --> 00:35:05,800 Speaker 1: you know, as soon as this as this band kicks 556 00:35:05,840 --> 00:35:09,719 Speaker 1: in UM, and it's going to be very interesting to 557 00:35:09,760 --> 00:35:14,040 Speaker 1: see how those challenges play out. Again, we don't have 558 00:35:14,160 --> 00:35:17,440 Speaker 1: a ton of guidance from the Court on what constitutes 559 00:35:17,440 --> 00:35:20,360 Speaker 1: a sensitive place. All we know is that it isn't 560 00:35:20,560 --> 00:35:24,600 Speaker 1: any place where people congregate, but it is things like 561 00:35:24,960 --> 00:35:28,839 Speaker 1: government buildings and schools. The courts has said those are fine. Um, 562 00:35:28,880 --> 00:35:31,520 Speaker 1: And so there's going to be you know, some some 563 00:35:31,719 --> 00:35:35,040 Speaker 1: challenges coming forward, I would expect, um, and it will 564 00:35:35,120 --> 00:35:37,839 Speaker 1: be kind of a similar exercise as the Court went 565 00:35:37,880 --> 00:35:40,520 Speaker 1: through and bruin of you know, trying to figure out 566 00:35:40,560 --> 00:35:46,440 Speaker 1: what historical laws were similar in prohibiting guns in certain 567 00:35:46,480 --> 00:35:51,200 Speaker 1: places of public assembly. New York's Democratic leaders, both on 568 00:35:51,239 --> 00:35:56,080 Speaker 1: the state and city level, are very adamant about gun control. 569 00:35:56,360 --> 00:35:59,640 Speaker 1: I'd sort of envisioned a situation where, you know, this 570 00:35:59,760 --> 00:36:03,480 Speaker 1: case is litigated, goes up to the Supreme Court, comes back, 571 00:36:03,560 --> 00:36:06,040 Speaker 1: and New York rewrites the law and then I mean, 572 00:36:06,080 --> 00:36:09,799 Speaker 1: it just seems like it might be a never ending process, right, Um. 573 00:36:09,880 --> 00:36:12,320 Speaker 1: And I think that, you know, it's it's very possible 574 00:36:12,360 --> 00:36:15,760 Speaker 1: that that could play out. Um. It's it's also important 575 00:36:15,800 --> 00:36:18,200 Speaker 1: to note I think that we haven't gotten a ton 576 00:36:18,239 --> 00:36:20,960 Speaker 1: of guidance from the Supreme Court. Right. It took ten 577 00:36:21,120 --> 00:36:25,520 Speaker 1: twelve years between McDonald and Bruin, Right, So we could 578 00:36:25,520 --> 00:36:29,520 Speaker 1: be entering a sort of period of time where as 579 00:36:29,560 --> 00:36:31,600 Speaker 1: with you know, the past decade, we we don't get 580 00:36:31,640 --> 00:36:33,759 Speaker 1: a lot of Supreme Court guidance, right, And we may 581 00:36:33,840 --> 00:36:37,520 Speaker 1: see some of these provisions upheld, and it's not totally 582 00:36:37,560 --> 00:36:41,400 Speaker 1: clear whether the Supreme Court wants to weigh in again, right, 583 00:36:41,440 --> 00:36:44,480 Speaker 1: that the Supreme Court may decide that it's best to 584 00:36:44,560 --> 00:36:47,280 Speaker 1: let things play out and see how the lower courts 585 00:36:47,360 --> 00:36:50,480 Speaker 1: rule on these types of challenges, and maybe, you know, 586 00:36:50,560 --> 00:36:53,319 Speaker 1: five or ten years down the road, we'll see them, uh, 587 00:36:53,480 --> 00:36:56,239 Speaker 1: we'll see them grant search in another Second Amendment case. 588 00:36:56,280 --> 00:36:58,839 Speaker 1: But that's really speculation, but I think we could see 589 00:36:58,840 --> 00:37:02,520 Speaker 1: that happen. Any fine thoughts on a legislation, sure, so. 590 00:37:02,640 --> 00:37:04,680 Speaker 1: I think you know, one thing that I think we 591 00:37:04,680 --> 00:37:06,719 Speaker 1: haven't discussed about the law that I just wanted to 592 00:37:06,800 --> 00:37:10,759 Speaker 1: comment on briefly is the review of social media accounts. Um. 593 00:37:10,840 --> 00:37:15,440 Speaker 1: That's another sort of along with the sensitive places expansion 594 00:37:15,520 --> 00:37:18,120 Speaker 1: and the you know, the private property approach, this is 595 00:37:18,160 --> 00:37:21,239 Speaker 1: another sort of novel aspect of the law. Um. And 596 00:37:21,280 --> 00:37:23,840 Speaker 1: I think it you know, we could see that become 597 00:37:24,080 --> 00:37:26,720 Speaker 1: increasingly common and you know, we could see other states 598 00:37:26,760 --> 00:37:29,560 Speaker 1: consider something similar, especially in light of the fact that 599 00:37:30,200 --> 00:37:33,080 Speaker 1: in some of these recent mass shooting tragedies. Um, it 600 00:37:33,160 --> 00:37:35,640 Speaker 1: has come out after the fact that there were disturbing 601 00:37:35,719 --> 00:37:39,239 Speaker 1: social media posts. UM, you know, a year back, two 602 00:37:39,320 --> 00:37:42,680 Speaker 1: years back, whatever it may be. UM, And I think 603 00:37:42,880 --> 00:37:46,960 Speaker 1: you know New York's approach, you know, it mandates that 604 00:37:47,000 --> 00:37:49,880 Speaker 1: an applicant submit a list of social media accounts from 605 00:37:49,920 --> 00:37:52,520 Speaker 1: the past three years. UM. I think there's you know, 606 00:37:52,560 --> 00:37:54,759 Speaker 1: it may be subject to criticism to the extent that 607 00:37:54,800 --> 00:37:57,760 Speaker 1: it doesn't go too far and that the applicants themselves 608 00:37:57,880 --> 00:38:00,520 Speaker 1: is responsible for submitting that list. So it's not clear 609 00:38:01,280 --> 00:38:04,520 Speaker 1: at the moment what kind of independent research the state 610 00:38:04,600 --> 00:38:06,960 Speaker 1: might do to verify those accounts or find out if 611 00:38:07,000 --> 00:38:09,520 Speaker 1: there are other accounts out there. But I think that's 612 00:38:09,680 --> 00:38:12,320 Speaker 1: you know, that provision is something that we might see 613 00:38:12,719 --> 00:38:14,879 Speaker 1: pop up in other states as well. Thanks so much 614 00:38:14,920 --> 00:38:18,400 Speaker 1: for joining me. That's Andrew Willinger, executive director of the 615 00:38:18,480 --> 00:38:21,319 Speaker 1: Duke Center for Firearms Law. And that's it for this 616 00:38:21,440 --> 00:38:24,200 Speaker 1: edition of the Bloomberg Law Show. Remember you can always 617 00:38:24,200 --> 00:38:27,160 Speaker 1: get the latest legal news on our Bloomberg Law Podcast. 618 00:38:27,440 --> 00:38:30,439 Speaker 1: You can find them on Apple Podcasts, Spotify, and at 619 00:38:30,600 --> 00:38:35,640 Speaker 1: www dot bloomberg dot com, slash podcast Slash Law, and 620 00:38:35,680 --> 00:38:38,439 Speaker 1: remember to tune into The Bloomberg Law Show every week 621 00:38:38,560 --> 00:38:42,120 Speaker 1: night at ten pm Wall Street Time. I'm June Grosso 622 00:38:42,239 --> 00:38:43,840 Speaker 1: and you're listening to Bloomberg