Speaker 1: This is Bloomberg Law with June Brasso from Bloomberg Radio.
Speaker 1: It was a Supreme Court term marked by turbulence, the
Speaker 1: unprecedented leak of a draft abortion opinion, protests across the country,
Speaker 1: including at the Johnstice's homes, an alleged assassination attempt, all
Speaker 1: leading to a court surrounded by a high security fence.
Speaker 1: Justice Sonya Sotomayor sounded alarms about the court during the
Speaker 1: oral arguments in the abortion case. Will this institution survive
Speaker 1: the stench that this creates in the public perception that
Speaker 1: the Constitution and it's reading are just political acts. I
Speaker 1: don't see how it is possible. And Justice Clarence Thomas
Speaker 1: said it plainly, the court has changed. And when you
Speaker 1: lose that trust, especially in the institution that I'm in, Uh,
Speaker 1: it changes the institution fundamentally. You begin to look over
Speaker 1: your shoulder. It's like kind of an infidelity joining me
Speaker 1: is constitutional law expert Michael Dorff, a professor at Cornell
Speaker 1: Law School. Would you say this term was the most
Speaker 1: momentous in the Court's history or the most tumultuous. I
Speaker 1: don't know about in the Court's history. Certainly the term
Speaker 1: that they decided the dread Scott case was extremely tumultuous,
Speaker 1: Brown against Board of Education and so forth. But the
Speaker 1: combination of cases and what it portends about the future,
Speaker 1: I think together make this one of the most tumultuous
Speaker 1: terms we've encountered, certainly the most in the last forty years.
Speaker 1: I'm looking at the numbers, and last year with the
Speaker 1: same justices, the court issued more unanimous decisions than the
Speaker 1: previous six or seven years. But this term, unanimous decisions
Speaker 1: dropped sharply. Only cases were unanimous, and six to three
Speaker 1: was the most common alignment. Why such a big change
Speaker 1: from term to term, Well, part of that is just
Speaker 1: a product of small numbers the court. Here's fewer than
Speaker 1: a hundred cases a year. Many of them are resolving
Speaker 1: circuit splits, others involved big cases, and there's also a
Speaker 1: lag that is Justice Barrett joined the court to fall
Speaker 1: of So this concluded term it was really her first
Speaker 1: full term where they were considering cases, where she was
Speaker 1: there to vote to decide what cases to take. That
Speaker 1: is to say they had a quoted conservative supermajority the
Speaker 1: previous term, but that conservative supermajority hadn't been selecting cases
Speaker 1: with an eye towards moving the law. So I think
Speaker 1: that it takes a little while for a new court
Speaker 1: to come into its own, and various of the justices
Speaker 1: like to say, whenever there is a single change in personnel,
Speaker 1: there's a whole new court because the dynamic shifts. Chief
Speaker 1: Justice Roberts is no longer the median justice. That title
Speaker 1: I think belongs to Justice kavan On, although depending on
Speaker 1: the issue, it could be barred or core as such.
Speaker 1: But the basic answer is that this was the year
Speaker 1: in which the Conservative supermajority solidified. Doesn't mean there won't
Speaker 1: be unanimous cases going forward. There are issues that are
Speaker 1: largely a political or where the law is very clear.
Speaker 1: But I do think we are likely to see a
Speaker 1: six to three division, occasionally five to four, with Roberts
Speaker 1: swinging to the Democratic appointees. But that's the basic configuration,
Speaker 1: certainly on the high profile cases, with the abortion case
Speaker 1: in particular, where we saw the leak of the draft
Speaker 1: and then we saw that nothing had changed when the
Speaker 1: opinion came out. Does that show that Justice Roberts doesn't
Speaker 1: have the influence he used to have, that he couldn't
Speaker 1: convince one of the Conservatives to not be so radical
Speaker 1: not actually do away with Roe v. Wade. I think
Speaker 1: that's basically right. I would add um some other thoughts
Speaker 1: on that. One is that the very fact of the
Speaker 1: league might have affected the dynamic. You know, there's still
Speaker 1: no good answer to the question of who leaked this
Speaker 1: and why, But one of the leading hypotheses is that
Speaker 1: it was somebody who wanted to hold the other Conservatives
Speaker 1: to justice the leader's opinion, and the thought was that
Speaker 1: if they leaked it, then there wouldn't be a defection.
Speaker 1: I don't know whether that's true or not, but but
Speaker 1: if it is, that could be part of the explanation.
Speaker 1: I think a bigger piece of the explanation is that
Speaker 1: Chief sus As Roberts didn't really offer that much of
Speaker 1: an alternative. You read his opinion and he says, well,
Speaker 1: we can uphold the Mississippi ban, but we don't need
Speaker 1: to say where the line is. We we're just going
Speaker 1: to get rid of viability and we'll do something else eventually.
Speaker 1: I think for the justices who might have been amenable
Speaker 1: to some sort of compromise, and the theory was that
Speaker 1: Justice Kavanaugh was the most likely one, he didn't really
Speaker 1: get something that looked like a real alternative. What he
Speaker 1: got was well, let's wait and see. Uh. And I
Speaker 1: think that, um, that was just not enough for him.
Speaker 1: I do realize that Chief Justice roberts basic orientation is
Speaker 1: towards wait and see, right, and it's not necessary to
Speaker 1: decide a question. It's necessary not to decide the question.
Speaker 1: He actually says that in his concurrence in the Dobb's case.
Speaker 1: But that's a sort of procedural posture, it's not an alternative,
Speaker 1: substantive compromise. Looking at the reasoning of the majority in
Speaker 1: these six to three cases, in the hot button issue cases,
Speaker 1: can you describe in general the theory that the conservative
Speaker 1: majority used to come to their conclusion? Was it TEXTUALI
Speaker 1: is um originalism? It certainly wasn't the living Constitution. Well, so,
Speaker 1: first we want to distinguish between constitutional cases and statutory cases.
Speaker 1: So the big constitutional cases are, of course the abortion decision, Bruin,
Speaker 1: the Second Amendment case, and then two of the three
Speaker 1: main religion cases, although the big ones Kennedy against Bremerton
Speaker 1: and the main case involving the subsidies for the religious schools.
Speaker 1: So those are all constitutional cases, and they all purport
Speaker 1: to use originalism. Or in Bruin they say the method
Speaker 1: of text, original understanding and history or text and tradition, history, etcetera.
Speaker 1: So they all are very historically focused. In the biggest
Speaker 1: statutory case, which is the West Virginia against E. P A. There,
Speaker 1: of course it's not about original meaning of the Constitution.
Speaker 1: It's about the scope of the delegation from Congress to
Speaker 1: the agency, and there that is purports to be textualism.
Speaker 1: Now you'll notice I said in both cases purports to
Speaker 1: be originalists, purports to be textualists. That's because I think
Speaker 1: that it's very hard to take seriously the notion that
Speaker 1: what we're seeing here is a methodological disagreement as opposed
Speaker 1: to an ideological disagreement. Long ago there were liberal originalists
Speaker 1: who Go Black was the leading one. There are some
Speaker 1: of them in the legal academy, and there have been
Speaker 1: conservative purposivests or conservative living constitutionalists. So I think that
Speaker 1: this court is keen to speak the language of text,
Speaker 1: history and tradition, but that is mostly a sort of
Speaker 1: post talk rationalization for results that are being reached on
Speaker 1: ideological grounds. And I'll say that that's largely two of
Speaker 1: the dissenters as well. The democratic appointees also have ideological drawers,
Speaker 1: and they have a preferred methodology. But in these cases
Speaker 1: in which the law is underdeterminate, that is to say,
Speaker 1: you know, there are arguments for overturning, the arguments for retaining,
Speaker 1: the arguments for extending, for cutting back right, the justices predispositions,
Speaker 1: their values are going to do the work regardless of
Speaker 1: the rhetorical register in which they write the opinion at
Speaker 1: the end of the day. I've asked this question of
Speaker 1: others because it stands out in my mind. What will
Speaker 1: oral arguments look like next term? Will the lawyers be
Speaker 1: arguing the history of the seventeen and eighteen hundreds? Does
Speaker 1: precedent matter anymore? Starry decisive? You know, it's very hard.
Speaker 1: That's a very good question. I think that in one's
Speaker 1: briefs it will be very important to load up on
Speaker 1: textual arguments, historical arguments, and then the traditional doctrinal reasons
Speaker 1: to retain precedent if that's what you want to do,
Speaker 1: or overturnative that's the way you want to go. It's
Speaker 1: harder to engage in that kind of nitty gritty historical
Speaker 1: back and forth during an oral argument, right that is
Speaker 1: to say, if you if you think about the way
Speaker 1: professional historians practice history, they don't do it through oral arguments.
Speaker 1: They do it through archival research. They publish papers, they
Speaker 1: have lengthy footnotes, they have excerpts. It's not the kind
Speaker 1: of question that is amenable to the mechanisms by which
Speaker 1: appellate courts have traditionally decided cases. And that's frankly one
Speaker 1: reason why this methodology has not traditionally been used, Right,
Speaker 1: the fact that we have typically expected justices to pose
Speaker 1: hypothetical questions and then the lawyers sort of explain why
Speaker 1: the rule for which they're arguing leads to one result
Speaker 1: or another result. All of that leads one to think
Speaker 1: that this is a kind of common law enterprise, one
Speaker 1: in which the courts build case by case, they explore
Speaker 1: the implic cations of one rule versus another rule. And
Speaker 1: this idea that one is going to reach down deeply
Speaker 1: into the history and find something analogous in the eighteenth
Speaker 1: or nineteen centuries, as Justice Thomas says you ought to
Speaker 1: do in the Second Amendment case. Right, that's quite radical
Speaker 1: and quite different. So I actually don't know whether the
Speaker 1: oral arguments are going to start looking very different. I
Speaker 1: suspect they won't because the justices are not historians, their lawyers,
Speaker 1: and so while they might ultimately write opinions that, you know,
Speaker 1: tell us what Lord Hale thought and what the state
Speaker 1: of play was in the colonies, that's not going to
Speaker 1: be the driver of the decisions. When I was looking
Speaker 1: through the cases, I saw only one high profile case
Speaker 1: where the liberal justices were able to form a majority
Speaker 1: with the conservatives. The remain in Mexico case. As far
Speaker 1: as high profile, do the liberal justices have any power
Speaker 1: at all now except in dissent. But one case I
Speaker 1: would add to that is the vaccine man for healthcare workers,
Speaker 1: which was did come out five to four to uphold
Speaker 1: that that mandate. Right, they split. They heard two cases
Speaker 1: and decided them around the middle of the term. In
Speaker 1: one they upheld the vaccination mandate for healthcare workers, and
Speaker 1: in the other they invalidated the the OCEHA mandate for
Speaker 1: large private employers. And in the case upholding the mandate,
Speaker 1: they were able to swing enough justice to make to
Speaker 1: make a difference so that you could say that the
Speaker 1: liberals won that one. Well, yeah, that's just one additional case,
Speaker 1: and it was one in which the procedural posture made
Speaker 1: it relatively easy to do that. I think that there
Speaker 1: still will be cases going forward in which it's possible
Speaker 1: to peel off, you know, both Chief Justice Roberts and,
Speaker 1: depending on the issue, one of Justices Kavanaugh, Barrett or
Speaker 1: Gore such But you know, you've got to get to
Speaker 1: to do that, and that's very hard. Right. So, on
Speaker 1: a five to fourth court, it's relatively easy for the
Speaker 1: Ford occasionally to pick up a fifth vote. It's much
Speaker 1: harder for three to pick up a fourth and fifth vote.
Speaker 1: Does this term support the idea in your mind of
Speaker 1: adding justices to the court. Sure? That is to say,
Speaker 1: I think that the Supreme Court right now is both
Speaker 1: a symptom and to some extent a cause of our dysfunction.
Speaker 1: What's happened over the past, you know, ten twenty years,
Speaker 1: is that the increasing polarization we see in our politics
Speaker 1: has spread to the court right so that for the
Speaker 1: last several years and going forward, it's been true that
Speaker 1: every Democratic appointee is substantially more liberal than every Republican appointee.
Speaker 1: That wasn't true prior to Justices Suitor and Stevens leaving
Speaker 1: the court, and even when Justice Kennedy was still on
Speaker 1: the Court, he would occasionally be more liberal than one
Speaker 1: of the Democratic appointees. So the Court has become a
Speaker 1: highly part of an institution, and question is would adding
Speaker 1: justices stop that? My answer is probably not, probably continue that.
Speaker 1: But you know, if the country is on fire, as
Speaker 1: it appears to be, you do whatever you can to
Speaker 1: put out the fire. My view is sort of that, Yeah,
Speaker 1: I'm not against it. I'm not actively proposing it though,
Speaker 1: because it seems dead on arrival in the Senate. I mean,
Speaker 1: Senators Mansion in Cinema can't even be moved to end
Speaker 1: the filibuster for the purpose of adopting election law rules
Speaker 1: to preserve the rudiments of democracy. I don't see that
Speaker 1: they would do that to expand the Supreme Court, which
Speaker 1: is a position that even President Biden doesn't seem to support.
Speaker 1: So yeah, in a different political world, I might say
Speaker 1: that's something worth doing. But in that different political world,
Speaker 1: you might not need to. Coming up, Professor Michael Dorf
Speaker 1: and I are going to talk about some of the
Speaker 1: high profile cases coming up next term at the Court,
Speaker 1: including affirmative action. You're listening to Bloomberg, please raise your
Speaker 1: right hand and repeat after me, I Katanji Brown Jackson,
Speaker 1: do solemnly swear, I, Katanji Brown Jackson, do solemnly swear
Speaker 1: that I will support and defend the Constitution of the
Speaker 1: United States against all enemies, foreign and domestic. That I
Speaker 1: will support and defend the Constitution of the United States
Speaker 1: against all enemies, foreign and domestic. On the last day
Speaker 1: of the term, Katangi Brown Jackson was sworn in as
Speaker 1: the one hundred sixteenth Associate Justice of the Supreme Court,
Speaker 1: the first black woman to serve on the Court, and
Speaker 1: her first term will include divisive cases on affirmative action,
Speaker 1: gay rights, the environment, and election law. I've been talking
Speaker 1: to constitutional law expert Michael Dorff, a professor at Cornell
Speaker 1: Law School. It's always said that when a new justice
Speaker 1: comes on the Court, there's a change in the dynamic.
Speaker 1: But with this court, do you think that Justice Katanji
Speaker 1: Brown Jackson will make a difference. I think yes. I
Speaker 1: think that her presence will affect the dynamic at oral argument.
Speaker 1: I think it will affect the dynamic of how descents
Speaker 1: get written. I think it's significant now that all of
Speaker 1: the justices likely to be in the minority in these
Speaker 1: divided cases are women, and so all of that effects
Speaker 1: the way in which cases are argued, the way in
Speaker 1: which opinions and descents are written. The fact that we
Speaker 1: now have to African Americans sitting on the court at
Speaker 1: the same time, I think that takes away a little
Speaker 1: bit of the rhetorical power that Justice Thomas might have had.
Speaker 1: But the bottom line, of course, is that you're just
Speaker 1: substituting Justice Jackson for the justice for whom she clerked,
Speaker 1: Justice Brier, and that doesn't affect outcomes in you know,
Speaker 1: more than a handful of probably low profile cases. Let's
Speaker 1: discuss some of the cases for next term. There's one
Speaker 1: involving gay rights where a website designer in Colorado used
Speaker 1: to start creating pages for same sex weddings because it
Speaker 1: would be at odds with her faith. So in principle,
Speaker 1: this isn't a gay rights case. In principle, this is
Speaker 1: a case about exemptions from anti discrimination law. And if
Speaker 1: I were arguing this to defend the Colorado Anti discrimination Provision,
Speaker 1: I would emphasize that this is not about gay rights.
Speaker 1: But if you allow exceptions franti discrimination law for people
Speaker 1: who are opposed to gay rights or same sex marriage
Speaker 1: or whatever it is. Then you need some good reason
Speaker 1: why you're not going to allow exceptions from race discrimination,
Speaker 1: sex discrimination, veteran status discrimination. That in that sense, this
Speaker 1: really isn't a gay rights case at all. It's a
Speaker 1: case about whether people get to say that they don't
Speaker 1: like complying with some law because it violates either their
Speaker 1: religious principles or their expressive principles, and whether you're going
Speaker 1: to allow that to undercut anti discrimination law. The last
Speaker 1: time this issue was up before them, they ducked it
Speaker 1: in the Masterpiece cake Shop case by finding that there
Speaker 1: was subjective illicit motive to discriminate against religion. Here, I
Speaker 1: don't think it will be so easy to duck the case,
Speaker 1: but I do think that the case's main implications will
Speaker 1: go well beyond gay rights, and in that sense, I
Speaker 1: would think of it as a question more about the
Speaker 1: scope of free speech and pre exercise of religion and
Speaker 1: less about gay rights, although of course you could imagine
Speaker 1: the justices. Certainly, Justice Alito has hinted at this, saying, well,
Speaker 1: it would be different if this were a race case,
Speaker 1: because there's a compelling interest in overcoming race discrimination, and
Speaker 1: maybe there isn't such an interest in overcoming bias against
Speaker 1: lgbt Q plus individuals. I think that would be a
Speaker 1: terrible mistake, but I could see them doing that, and
Speaker 1: in that case, I would say, well, then they've turned
Speaker 1: it into a gay rights case. There are two affirmative
Speaker 1: action cases coming before the Justices challenging admission policies at
Speaker 1: Harvard College and the University of North Carolina, and several
Speaker 1: of the justices have ex rest distrust or disapproval of
Speaker 1: the theory of affirmative action, not just express distrust. I
Speaker 1: think that there are probably six votes on this Court
Speaker 1: that includes Chief Justice Roberts, who has been pretty strong
Speaker 1: on this, to say that the Constitution in the University
Speaker 1: of North Carolina case, because that's a state actor, and
Speaker 1: the federal statute in the Harvard case simply forbid any
Speaker 1: use of race in university admissions, and then maybe by
Speaker 1: extension in later cases in employment and other contexts. Their
Speaker 1: view is that the Constitution and federal anti inscrimination law
Speaker 1: require color blindness, meaning you can't take race into account
Speaker 1: even as a so called plus factor, which has been
Speaker 1: the way that colleges and universities have been doing it
Speaker 1: under the approval of the Supreme Court since at least
Speaker 1: eight in the Hockey case. The Roberts Court has in
Speaker 1: the hasked purported to apply the University of Michigan decision
Speaker 1: for the Grooder case from early in the two thousands,
Speaker 1: but they haven't had a case that presented that since
Speaker 1: Justice Kennedy retired. So now I think the dynamic shifts.
Speaker 1: So I would be very surprised to see the Court
Speaker 1: uphold the current standard under which race is permitted as
Speaker 1: a so called plus factor but not as a quota.
Speaker 1: I expect them to say something like it's absolutely forbidden
Speaker 1: except to remedy specific instances of identified unconstitutional Now, the
Speaker 1: only way they could avoid doing that is they could
Speaker 1: strike down either the Harvard or the University of North
Speaker 1: Carolina admissions program, or I guess both on some narrower basis.
Speaker 1: There are allegations and some evidence in the record that
Speaker 1: the colleges are just engaged in sort of open discrimination
Speaker 1: against Asian Americans, and you could say that that's illegal
Speaker 1: without saying anything about it firmative action more broadly. So
Speaker 1: that's a possibility, but again you would need a court
Speaker 1: that inclined to want to find a narrow ground and
Speaker 1: I don't think they took these cases to find a
Speaker 1: narrow ground. There's a North Carolina redistricting case where the
Speaker 1: Court is going to consider adopting this theory called the
Speaker 1: independent state legislature theory, and three or four justices, depending
Speaker 1: on how you look at it, have already expressed some
Speaker 1: approval for this. But this could throw a real ranch
Speaker 1: into elections in some states. Right, So the spaces for
Speaker 1: this theory is that the Constitution, both in Article one
Speaker 1: with respect to congressional elections and an Article two and
Speaker 1: by extension the twelfth Amendment with respect to presidential elections,
Speaker 1: gives to state legislatures the power to set the rules
Speaker 1: governing elections. Now, up until a little over twenty years ago,
Speaker 1: everybody understood that legislature meant well the state legislative process,
Speaker 1: which includes the governor's signature, and it includes judicial review
Speaker 1: by the state courts pursuing too the state constitutions. But
Speaker 1: beginning in two thousand, in a concurrence by three justices
Speaker 1: in bush Bee Gore, we have had this idea that
Speaker 1: when exercising its role to set election rules with respect
Speaker 1: to federal elections, state legislatures have some independent authorities and
Speaker 1: I should say, although none of the justices except for
Speaker 1: Justice Thomas, who were part of that concurrence, the other
Speaker 1: two Justices Ran Kishins Clere have passed away, Justice Thomas remains,
Speaker 1: and the architects of that theory were the Bush lawyers,
Speaker 1: including Chief Justice Robert and I believe Justices Kavanaugh and Barrett,
Speaker 1: as relatively young attorneys, worked on that case as well.
Speaker 1: And so there is reason to think that there will
Speaker 1: be five votes for some version of this theory that
Speaker 1: says that the state legislature acts in a way that's
Speaker 1: independent of the state constitution, state judicial review. And so
Speaker 1: with so, do you think it's a lot that the
Speaker 1: Court will adopt this theory. I have some hope that
Speaker 1: they won't endorse the most aggressive view of that, based
Speaker 1: in part on the fact that there has been considerable
Speaker 1: research in the last several years by scholars going back
Speaker 1: at to look at the history to say that this
Speaker 1: idea just is made up. That is, it's pretty clear
Speaker 1: that the original meaning of state legislature was state legislature
Speaker 1: within the context of the state constitutional systems. Because if
Speaker 1: it doesn't mean that, then you have all sorts of
Speaker 1: weird paradoxes like what happens if the governor of the
Speaker 1: state vetos a bill. Does that mean that that bill
Speaker 1: is now law with respect to federal elections but not
Speaker 1: with respect to the state elections that are conducted simultaneously.
Speaker 1: How does that affect voto qualifications, etcetera. So there are
Speaker 1: all sorts of problems with the sort of most robust
Speaker 1: version of the independent state legislature theory. And of course
Speaker 1: it's that theory that President Trump, aided by the likes
Speaker 1: of John Eastman and others, were pushing as the excuse
Speaker 1: for overturning the results of election. If it's endorsed by
Speaker 1: the Supreme Court, then they could do it potentially in
Speaker 1: a way that's legal in the next election. Approval of
Speaker 1: the Court is at the lowest in modern history. Yet,
Speaker 1: just as a leader in the abortion decision said, the
Speaker 1: Court isn't concern with public opinion, but should they be?
Speaker 1: Does the public have to have confidence in the Court
Speaker 1: as an institution. So over the long run, whatever they say,
Speaker 1: the justices do in fact act in a way that
Speaker 1: shows that they almost certainly care about public opinion. Right,
Speaker 1: there's this famous line, and Mr Dooley, you know whether
Speaker 1: the Constitution follows the flag. The Supreme Court follows the
Speaker 1: election return. That was at the turn of the nineteen
Speaker 1: twenty centuries, and so that's been true throughout our history. Right,
Speaker 1: the Court has been a political and politicized institution forever.
Speaker 1: It was true at the end of the Adams administration,
Speaker 1: going into the Jefferson administration. It was certainly true leading
Speaker 1: up to the Civil War, it was true leading up
Speaker 1: to enduring the New Deal, and it's true today. It's
Speaker 1: also the case that we have an ideal of blind justice. Right,
Speaker 1: the judges and justices are not supposed to be swayed
Speaker 1: by public opinion, and I think everybody who believes in
Speaker 1: the rule of law believes that that's true to some extent.
Speaker 1: So they shouldn't vow to pressure, they shouldn't vow to threat.
Speaker 1: We can all agree on that. At the same time,
Speaker 1: their role in interpreting the Constitution is one that constrains
Speaker 1: and to some extent defines the democratic process, and so
Speaker 1: it's inevitable that the democratic process is going to push back,
Speaker 1: and that gets us to a sort of basic debate
Speaker 1: about what it is that they're doing. Right, So, the
Speaker 1: justices who purport to be originalists say, well, they're just
Speaker 1: preserving the Constitution. Uh. And so modern public opinion is
Speaker 1: completely irrelevant because it didn't affect what people met in
Speaker 1: seventeen eight or sev or eighteen sixty eight, whenever the
Speaker 1: relevant provision came into effect. Um. But if you think
Speaker 1: that the reason the Constitution binds us today is not
Speaker 1: that a bunch of people, um that excluded women, that
Speaker 1: included enslaved African Americans, that excluded Native Americans, that excluded
Speaker 1: white men without property at least the original Constitution. If
Speaker 1: you think that it's not their act that made the
Speaker 1: Constitution law, but a sort of ongoing experiment across generations,
Speaker 1: then public opinion is relevant not only to you know
Speaker 1: what you're fraid because you don't want to people to
Speaker 1: try to assassinate you, but it's relevant to the actual
Speaker 1: meaning of the Constitution because it's the understanding and tacit
Speaker 1: consent that ultimately makes the Constitution legitimate. Thanks so much, Michael.
Speaker 1: That's Professor Michael Dorff of Cornell Law School. Eight days
Speaker 1: after the Supreme Court struck down New York Central gun law,
Speaker 1: the state's lawmakers approved a sweeping overhaul of New York's
Speaker 1: handgun licensing rules. The new gun legislation severely limits where
Speaker 1: guns can be carried, includes a strict permitting process for
Speaker 1: concealed carry licenses, and requires background checks to buy ammunition,
Speaker 1: among other things. The law will almost certainly be challenged
Speaker 1: in court. My guest is Andrew Willinger, executive director of
Speaker 1: the Duke Center for Firearms Law. So, even though this
Speaker 1: is a redo, there is this strict permitting process for
Speaker 1: concealed carry licenses, which includes in person interviews for character references,
Speaker 1: turning in a list of social media accounts, etcetera. Is
Speaker 1: there a problem with having a strict permitting process like that. So,
Speaker 1: as you mentioned, so that the new New York law,
Speaker 1: you know, gets rid of the proper cause requirement which
Speaker 1: the Supreme Court struck down, but it does make other
Speaker 1: moves to shore up the permitting process by requiring these
Speaker 1: types of you know, submissions of information, coming in person
Speaker 1: for an interview, And the Court in its opinion actually
Speaker 1: says that, you know, in general, a shall issue permit regime,
Speaker 1: which is what New York will now be placed in
Speaker 1: that category is permissible but still subject to an as
Speaker 1: applied challenge. So this will really depend how the new
Speaker 1: system functions and practice if it results in a long
Speaker 1: waiting period. For example, for applicants that are seeking a permit,
Speaker 1: they may actually have a challenge they can bring saying
Speaker 1: that in practice the system is too burdensome. What about
Speaker 1: the applicants having to complete sixteen hours of in person
Speaker 1: firearms training, two hours of training at a firing range,
Speaker 1: and they have to prove their shooting proficiency. Right, So
Speaker 1: this is uh an aspect of the law that I
Speaker 1: think UH many people expected, right that, in conjunction with
Speaker 1: removing the proper cause requirement, that there would be additional
Speaker 1: training requirements. That's an area that some states have focused on.
Speaker 1: I think that's something that is likely to be a
Speaker 1: permissible even under Bruin. Bruin doesn't say anything about training requirements,
Speaker 1: um and to the extent that these are actually, you know,
Speaker 1: requirements that an applicant go you know, to to shooting
Speaker 1: range for example, you know, prove that they are able
Speaker 1: to safely handle the gun. Those are things that seem
Speaker 1: probably fine under the Court's approach and Bruin. The legislation
Speaker 1: sets out a list of sensitive places where you can't
Speaker 1: carry conceal weapon and it's quite extensive. Airports, bars and
Speaker 1: restaurants that serve alcohol, courthouses, daycare facilities, playgrounds, etcetera. Educational institutions,
Speaker 1: emergency shelters, entertainment venues, federal, state, and local government buildings,
Speaker 1: health and medical facilities, houses of worship, libraries, polling sites,
Speaker 1: public demonstrations and rallies, public transportation including subways and buses,
Speaker 1: and Times Square. Some are already complaining that that list
Speaker 1: is too extensive. With that list pass Supreme Court review,
Speaker 1: what what's your analysis of that list of sensitive locations
Speaker 1: which takes in a lot. That's a great question, and
Speaker 1: this is a place where I think we're likely to
Speaker 1: see litigation in the near future. The Court and Bruin
Speaker 1: doesn't undertake an extensive analysis of what places can be
Speaker 1: designated sensitive by a state government such that gun possession
Speaker 1: can be banned there. So, all the Court says is
Speaker 1: New York can't designate the entire island of Manhattan as
Speaker 1: a sensitive place, But it doesn't engage in any kind
Speaker 1: of detailed analysis about what places can be designated sensitive.
Speaker 1: All the Court's opinion says is that you have to
Speaker 1: analogize to historical places where guns were prohibited, where I
Speaker 1: think that leaves us is that there are certain locations
Speaker 1: on this list that New York has enacted that are
Speaker 1: completely fine, right, government buildings, polling places. You know that
Speaker 1: there's a limited set of places where we have a
Speaker 1: historical tradition of banning guns in those locations, and that's
Speaker 1: perfectly fine. But it's not as clear for things like
Speaker 1: mass transit, Times Square, stadium, anywhere where alcohol is sold
Speaker 1: or consumed. These are the types of locations where it
Speaker 1: will be interesting to see how courts apply the Bruin tests.
Speaker 1: And I think you know, this expansive list does come
Speaker 1: relatively close to what the court cautioned against and Ruin,
Speaker 1: which is that you can't simply say that because people
Speaker 1: congregate in a given location and law enforcement officers are available,
Speaker 1: that that is a sensitive place and guns are banned. Also,
Speaker 1: private businesses will be presumed to be gun free zones
Speaker 1: unless their owners put up signs saying guns are welcome.
Speaker 1: And one of the Republican state senators said, that's going
Speaker 1: to allow criminals to find soft target areas more easily.
Speaker 1: Is that a good idea? You know? Having to put
Speaker 1: signs up, this aspect of the law is is a
Speaker 1: pretty novel approach. I'm pretty sure that New York is
Speaker 1: the only state that has now taken this approach of
Speaker 1: having the default rule be that if you are a
Speaker 1: business owner, if you own private property, um, the default
Speaker 1: is that no guns are permitted unless you put out
Speaker 1: a clear sign or otherwise give permission for guns to
Speaker 1: be brought into that location, you know, regardless of the
Speaker 1: of the policy debate about it. In some ways a
Speaker 1: clever move by New York, because there are cases out
Speaker 1: there saying that the Second Amendment cannot trump the right
Speaker 1: of a private property owner to exercise control over land
Speaker 1: or a place of business or something like that. So
Speaker 1: I think that's what you know, New York in some
Speaker 1: ways is trying to insulate this from a legal challenge,
Speaker 1: and it will be difficult for somebody to challenge this
Speaker 1: aspect of the law under the cases that are out there.
Speaker 1: Of course, there's still going to be some uncertainty after Bruin,
Speaker 1: but my guess is that he would need to make
Speaker 1: some kind of arguments that the cumulative effect of you know,
Speaker 1: the private property ban and the Sensitive Places list taken
Speaker 1: together nullify the right to carry arms in public for
Speaker 1: self defense. It seems like in many respects, the law
Speaker 1: is stricter than the old law. That's right, And I
Speaker 1: think this is a really important observation about this New
Speaker 1: York law is that you know, under the prior system
Speaker 1: that the court struck down and bruin, New York had
Speaker 1: this proper cause requirement, and that mandated that an applicant
Speaker 1: shows some exceptional circumstance. Right, they had to show that
Speaker 1: they themselves were threatened or that they had an extraordinary
Speaker 1: reason why they needed to carry a gun in public.
Speaker 1: But at the same time, New York was granting especially
Speaker 1: you know, outside of New York City, in more rural areas,
Speaker 1: they were granting permits to people to carry concealed weapons.
Speaker 1: It was just a very high bar to meet, and
Speaker 1: those permit holders had a pretty broad ability once they
Speaker 1: received the permit to carry weapons in a number of
Speaker 1: different public places. Now you have a system after this
Speaker 1: new law where it might be easier as an initial
Speaker 1: step to get the permit. Right, the proper cause requirement
Speaker 1: is no longer there, But once you obtain a permit,
Speaker 1: it doesn't give you the ability to carry guns in
Speaker 1: anywhere near as many places as you could under the
Speaker 1: prior system. So in many respects, it is going to
Speaker 1: be stricter because people who have permits will be limited
Speaker 1: in where they can actually bring up. Most experts look
Speaker 1: at this, even you know, lawmakers say it's almost certain
Speaker 1: that this is going to be challenged in court. I
Speaker 1: agree with that. I think that we will certainly see
Speaker 1: challenges to this loss. Some of them I think will
Speaker 1: take a longer time to play out. Right, So I
Speaker 1: think if you you know, if you imagine a challenge
Speaker 1: to the permitting system itself, that's going to take time
Speaker 1: because we'll need to see how this new system actually
Speaker 1: works in practice, how long it takes an applicant to
Speaker 1: go through the process of you know, going to an
Speaker 1: in person interview, compiling all this information, submitting it, having
Speaker 1: it reviewed by the licensing official. Right, And if this,
Speaker 1: if this ends up taking a long time, then you'll
Speaker 1: probably see people bringing as applied challenges to the permitting
Speaker 1: system itself. You know. The other big area where I
Speaker 1: think we'll see challenges is to the sensitive places probe
Speaker 1: action UM. And this is something that will probably happen earlier,
Speaker 1: you know, as soon as this as this band kicks
Speaker 1: in UM, and it's going to be very interesting to
Speaker 1: see how those challenges play out. Again, we don't have
Speaker 1: a ton of guidance from the Court on what constitutes
Speaker 1: a sensitive place. All we know is that it isn't
Speaker 1: any place where people congregate, but it is things like
Speaker 1: government buildings and schools. The courts has said those are fine. Um,
Speaker 1: And so there's going to be you know, some some
Speaker 1: challenges coming forward, I would expect, um, and it will
Speaker 1: be kind of a similar exercise as the Court went
Speaker 1: through and bruin of you know, trying to figure out
Speaker 1: what historical laws were similar in prohibiting guns in certain
Speaker 1: places of public assembly. New York's Democratic leaders, both on
Speaker 1: the state and city level, are very adamant about gun control.
Speaker 1: I'd sort of envisioned a situation where, you know, this
Speaker 1: case is litigated, goes up to the Supreme Court, comes back,
Speaker 1: and New York rewrites the law and then I mean,
Speaker 1: it just seems like it might be a never ending process, right, Um.
Speaker 1: And I think that, you know, it's it's very possible
Speaker 1: that that could play out. Um. It's it's also important
Speaker 1: to note I think that we haven't gotten a ton
Speaker 1: of guidance from the Supreme Court. Right. It took ten
Speaker 1: twelve years between McDonald and Bruin, Right, So we could
Speaker 1: be entering a sort of period of time where as
Speaker 1: with you know, the past decade, we we don't get
Speaker 1: a lot of Supreme Court guidance, right, And we may
Speaker 1: see some of these provisions upheld, and it's not totally
Speaker 1: clear whether the Supreme Court wants to weigh in again, right,
Speaker 1: that the Supreme Court may decide that it's best to
Speaker 1: let things play out and see how the lower courts
Speaker 1: rule on these types of challenges, and maybe, you know,
Speaker 1: five or ten years down the road, we'll see them, uh,
Speaker 1: we'll see them grant search in another Second Amendment case.
Speaker 1: But that's really speculation, but I think we could see
Speaker 1: that happen. Any fine thoughts on a legislation, sure, so.
Speaker 1: I think you know, one thing that I think we
Speaker 1: haven't discussed about the law that I just wanted to
Speaker 1: comment on briefly is the review of social media accounts. Um.
Speaker 1: That's another sort of along with the sensitive places expansion
Speaker 1: and the you know, the private property approach, this is
Speaker 1: another sort of novel aspect of the law. Um. And
Speaker 1: I think it you know, we could see that become
Speaker 1: increasingly common and you know, we could see other states
Speaker 1: consider something similar, especially in light of the fact that
Speaker 1: in some of these recent mass shooting tragedies. Um, it
Speaker 1: has come out after the fact that there were disturbing
Speaker 1: social media posts. UM, you know, a year back, two
Speaker 1: years back, whatever it may be. UM, And I think
Speaker 1: you know New York's approach, you know, it mandates that
Speaker 1: an applicant submit a list of social media accounts from
Speaker 1: the past three years. UM. I think there's you know,
Speaker 1: it may be subject to criticism to the extent that
Speaker 1: it doesn't go too far and that the applicants themselves
Speaker 1: is responsible for submitting that list. So it's not clear
Speaker 1: at the moment what kind of independent research the state
Speaker 1: might do to verify those accounts or find out if
Speaker 1: there are other accounts out there. But I think that's
Speaker 1: you know, that provision is something that we might see
Speaker 1: pop up in other states as well. Thanks so much
Speaker 1: for joining me. That's Andrew Willinger, executive director of the
Speaker 1: Duke Center for Firearms Law. And that's it for this
Speaker 1: edition of the Bloomberg Law Show. Remember you can always
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Speaker 1: night at ten pm Wall Street Time. I'm June Grosso
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