1
00:00:00,600 --> 00:00:05,360
Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio.

2
00:00:05,840 --> 00:00:10,320
Speaker 1: President Trump is ratcheting off his unusual battle with the judiciary,

3
00:00:10,360 --> 00:00:13,720
Speaker 1: this time calling on Supreme Court Justices Sonya Soto Mayor

4
00:00:13,800 --> 00:00:17,560
Speaker 1: and Ruth Bader Ginsburg to recuse themselves from future cases

5
00:00:17,600 --> 00:00:21,360
Speaker 1: involving him. Trump based his criticism on a dissenting opinion

6
00:00:21,400 --> 00:00:24,520
Speaker 1: by Justice so To Mayor last Friday and a comment

7
00:00:24,600 --> 00:00:28,120
Speaker 1: by Justice Ginsburg four years ago. Her statement was so

8
00:00:28,200 --> 00:00:31,400
Speaker 1: inappropriate when you're a justice of the Supreme Court, and

9
00:00:31,720 --> 00:00:33,600
Speaker 1: it's almost what she's trying to do is take the

10
00:00:33,600 --> 00:00:36,120
Speaker 1: people that do feel a different way and get them

11
00:00:36,240 --> 00:00:40,400
Speaker 1: to vote the way that she would like them to vote.

12
00:00:40,520 --> 00:00:43,080
Speaker 1: I just thought it was so inappropriate, such a terrible

13
00:00:43,120 --> 00:00:46,000
Speaker 1: statement for Supreme Court justice. In her descent, so To

14
00:00:46,120 --> 00:00:49,760
Speaker 1: Mayor criticized the Court's conservatives for granting so many of

15
00:00:49,760 --> 00:00:53,760
Speaker 1: the Trump administration's emergencies stay requests that it's become the

16
00:00:53,800 --> 00:00:56,880
Speaker 1: new normal instead of the exception. And so To Mayor

17
00:00:57,000 --> 00:00:59,959
Speaker 1: has the numbers to support her dissent. Joining me now

18
00:01:00,080 --> 00:01:02,760
Speaker 1: is Stephen Vladdock, a professor at the University of Texas

19
00:01:02,880 --> 00:01:06,600
Speaker 1: Law School. He researched the numbers of emergency relief request

20
00:01:06,680 --> 00:01:09,440
Speaker 1: the Trump administration has made for a Harvard Law Review

21
00:01:09,520 --> 00:01:12,360
Speaker 1: article that's so to major sided in a similar dissent,

22
00:01:13,040 --> 00:01:17,199
Speaker 1: Let's start first with what the Court actually did in

23
00:01:17,480 --> 00:01:21,240
Speaker 1: that vote last Friday. Sure, so you know that the

24
00:01:21,240 --> 00:01:25,000
Speaker 1: Supreme Court had already put on hold a nationwide injunction

25
00:01:25,040 --> 00:01:28,000
Speaker 1: and issued by a federal judge in New York against

26
00:01:28,040 --> 00:01:30,960
Speaker 1: this so called public charge rule, this you know, new

27
00:01:31,040 --> 00:01:35,160
Speaker 1: immigration rule that would make it harder for individuals who

28
00:01:35,200 --> 00:01:38,440
Speaker 1: the government deems likely to need some kind of public

29
00:01:38,480 --> 00:01:41,760
Speaker 1: assistance to receive any kind of lawful immigration status. But

30
00:01:41,840 --> 00:01:46,440
Speaker 1: there was also a non nationwide injunction just in Illinois,

31
00:01:46,600 --> 00:01:49,760
Speaker 1: and this was the government's request to the Supreme Court

32
00:01:49,800 --> 00:01:53,360
Speaker 1: to also put that statewide injunction on hold. That's what

33
00:01:53,400 --> 00:01:55,480
Speaker 1: the Supreme Court, by a five to four vote, agreed

34
00:01:55,520 --> 00:01:57,720
Speaker 1: to do last Friday, so that there would be a

35
00:01:57,880 --> 00:02:01,880
Speaker 1: nationwide lift not just of the New York conjunction, but

36
00:02:01,960 --> 00:02:05,240
Speaker 1: of the Illinois injunction as well. So, while the case

37
00:02:05,400 --> 00:02:09,440
Speaker 1: is winding its way through the lower courts, the justices

38
00:02:09,480 --> 00:02:12,840
Speaker 1: are allowing the President to do what he wants, and

39
00:02:12,960 --> 00:02:15,440
Speaker 1: it could take years for the case to get back

40
00:02:15,440 --> 00:02:18,639
Speaker 1: to the Court. So it's a win win for the administration.

41
00:02:19,120 --> 00:02:21,040
Speaker 1: That's right, and I think it's worth stressing it's not

42
00:02:21,080 --> 00:02:23,239
Speaker 1: just that it could and probably will take years for

43
00:02:23,280 --> 00:02:25,440
Speaker 1: the cases to get back to the Supreme Court, that

44
00:02:25,520 --> 00:02:27,480
Speaker 1: there's no guarantee that the cases will actually ever get

45
00:02:27,480 --> 00:02:29,920
Speaker 1: to the Supreme Court. I mean, we saw with travel

46
00:02:29,960 --> 00:02:32,520
Speaker 1: Band two point oh, and we saw with one of

47
00:02:32,560 --> 00:02:36,360
Speaker 1: the early rounds of the census litigation contacts in which

48
00:02:36,400 --> 00:02:39,160
Speaker 1: the government went running to the Supreme Court for an

49
00:02:39,160 --> 00:02:42,880
Speaker 1: emergency stay, got the emergency's day, and then the government

50
00:02:42,880 --> 00:02:45,720
Speaker 1: actually abandoned what it was doing before the merits ever

51
00:02:45,760 --> 00:02:48,280
Speaker 1: got to the Supreme Court. So it's basically a heads

52
00:02:48,320 --> 00:02:51,880
Speaker 1: we win, tails you lose. Where without any kind of

53
00:02:51,960 --> 00:02:55,880
Speaker 1: conclusive resolution of these legal questions, the government basically gets

54
00:02:56,120 --> 00:02:58,880
Speaker 1: somewhere between one and three three years to put these

55
00:02:58,880 --> 00:03:03,560
Speaker 1: programs into effect. Does that mean the justices who voted

56
00:03:04,120 --> 00:03:08,320
Speaker 1: for the Trump administration are buying the administration's argument that

57
00:03:08,360 --> 00:03:11,520
Speaker 1: this is an emergency situation and the government would suffer

58
00:03:11,600 --> 00:03:16,600
Speaker 1: irreparable harm if it can't implement this new rule. It's

59
00:03:16,639 --> 00:03:19,560
Speaker 1: hard to say, June, because in theory, the Court is

60
00:03:19,600 --> 00:03:22,920
Speaker 1: supposed to be balancing four factors when it decides whether

61
00:03:23,000 --> 00:03:25,200
Speaker 1: to grant us stay in a case like this pending

62
00:03:25,200 --> 00:03:27,880
Speaker 1: an appeal. One of those factors is the likelihood of

63
00:03:27,880 --> 00:03:29,920
Speaker 1: success on the merits. So, of course, you know, if

64
00:03:29,919 --> 00:03:32,720
Speaker 1: the justices were convinced there was no chance the government's

65
00:03:32,720 --> 00:03:35,000
Speaker 1: gonna win, there shouldn't be a stay at all. But

66
00:03:35,160 --> 00:03:37,640
Speaker 1: even in cases where there's a majority of justices who

67
00:03:37,720 --> 00:03:40,280
Speaker 1: do believe that the government has a likeli to success

68
00:03:40,280 --> 00:03:43,160
Speaker 1: on the merits, that's not supposed to be conclusive. That

69
00:03:43,240 --> 00:03:45,840
Speaker 1: is to say, even then, that's supposed to be balanced

70
00:03:45,880 --> 00:03:49,400
Speaker 1: against just exactly what the harm is, either to the

71
00:03:49,480 --> 00:03:53,400
Speaker 1: government from putting this policy on hold pending these appeals,

72
00:03:53,520 --> 00:03:56,400
Speaker 1: or to those who the policy effects by allowing the

73
00:03:56,400 --> 00:03:59,520
Speaker 1: policy to go into effect pending the appeals. And you know, Jude,

74
00:03:59,520 --> 00:04:03,000
Speaker 1: I think the frustrating trend that Justice so to Mayor,

75
00:04:03,280 --> 00:04:05,880
Speaker 1: was planting without in her descent that I've actually written

76
00:04:05,880 --> 00:04:08,320
Speaker 1: about it some length. The trend is that there's a

77
00:04:08,360 --> 00:04:10,040
Speaker 1: majority of the Court that now it seems to just

78
00:04:10,080 --> 00:04:14,520
Speaker 1: be increasingly indifferent to what we call balancing of the

79
00:04:14,560 --> 00:04:18,359
Speaker 1: equities to contrasting the harm to the government on the

80
00:04:18,400 --> 00:04:20,880
Speaker 1: one hand with the harm to the public where the

81
00:04:20,960 --> 00:04:24,200
Speaker 1: harm to those affected by these policies has just about

82
00:04:24,320 --> 00:04:26,680
Speaker 1: dropped out of the calculus. And if you drop that

83
00:04:26,720 --> 00:04:28,840
Speaker 1: out of the calculus, June, then yeah, this really does

84
00:04:28,920 --> 00:04:31,880
Speaker 1: become increasingly just a question of whether five or more

85
00:04:31,960 --> 00:04:35,040
Speaker 1: justices believe that when push comes to shove, the government's

86
00:04:35,040 --> 00:04:38,400
Speaker 1: gonna win. The Supreme Court is the last word, and

87
00:04:38,560 --> 00:04:42,560
Speaker 1: usually it lets novel issues percolate, a word we usually

88
00:04:42,640 --> 00:04:45,560
Speaker 1: hear with respect to this in the lower courts before

89
00:04:45,560 --> 00:04:48,880
Speaker 1: it even considers a novel issue. And that's something she

90
00:04:48,920 --> 00:04:50,880
Speaker 1: also addresses. So give us a little bit of the

91
00:04:50,960 --> 00:04:53,320
Speaker 1: context of what she said. Yeah, I mean, you know,

92
00:04:53,400 --> 00:04:56,159
Speaker 1: this is a court that lately has been very insistent

93
00:04:56,320 --> 00:04:57,839
Speaker 1: as the court like say that it's a court of

94
00:04:57,920 --> 00:05:01,279
Speaker 1: review not first view. That's on shows up eleven different

95
00:05:01,320 --> 00:05:05,279
Speaker 1: times last term alone, and so historically what that's meant, June,

96
00:05:05,760 --> 00:05:08,240
Speaker 1: is that this is a court that's been very reluctant

97
00:05:08,560 --> 00:05:12,240
Speaker 1: to grant stays, where stays really are the exception not

98
00:05:12,440 --> 00:05:14,400
Speaker 1: the rule um And to that end, I mean, if

99
00:05:14,440 --> 00:05:17,760
Speaker 1: you look at the practice during the George W. Bush

100
00:05:17,760 --> 00:05:20,920
Speaker 1: administration all eight years and the obadministration all the years,

101
00:05:20,960 --> 00:05:25,799
Speaker 1: you combine those two very different administrations, the government only

102
00:05:26,000 --> 00:05:28,920
Speaker 1: sought a stay from the Supreme Court of a lower

103
00:05:28,960 --> 00:05:32,719
Speaker 1: court decision a total of eight times in those sixteen years.

104
00:05:33,200 --> 00:05:36,640
Speaker 1: Contrast that with the first three years of the Trump administration,

105
00:05:36,920 --> 00:05:40,680
Speaker 1: where the government has sought twenty four stays um, including

106
00:05:40,760 --> 00:05:45,159
Speaker 1: ten during the October term alone. So part of I

107
00:05:45,200 --> 00:05:47,920
Speaker 1: think what Justice stud of myor is complaining about is

108
00:05:47,960 --> 00:05:51,640
Speaker 1: not just that the government has become so much more

109
00:05:51,680 --> 00:05:55,400
Speaker 1: willing to seek this kind of relief from the Supreme Court,

110
00:05:55,600 --> 00:05:57,760
Speaker 1: but that the majority, you know, even in the cases

111
00:05:57,760 --> 00:06:00,680
Speaker 1: where the majority has refused to grant the relief, there's

112
00:06:00,680 --> 00:06:05,280
Speaker 1: been no expression from the majority that this uptick is inappropriate,

113
00:06:05,680 --> 00:06:09,359
Speaker 1: that this listener general is taking advantage of the court

114
00:06:09,440 --> 00:06:11,640
Speaker 1: in some respect. And so that's why I think Justice

115
00:06:12,120 --> 00:06:14,400
Speaker 1: is rightly concerned that this has becoming the new normal

116
00:06:14,800 --> 00:06:18,440
Speaker 1: where any time the government is subject to any injunction

117
00:06:19,040 --> 00:06:23,160
Speaker 1: nationwide or not of any policy, no matter how controversial,

118
00:06:23,200 --> 00:06:26,279
Speaker 1: no matter how debatable, it runs to the Supreme Court

119
00:06:26,480 --> 00:06:29,080
Speaker 1: and is able to get a stay while the litigation

120
00:06:29,160 --> 00:06:33,080
Speaker 1: challenging that policy, which ultimately might succeed, goes forward. Many

121
00:06:33,120 --> 00:06:36,360
Speaker 1: of President Trump's victories at the Supreme Court so far

122
00:06:36,440 --> 00:06:40,280
Speaker 1: have been temporary, the Supreme Court granting emergency relief to

123
00:06:40,320 --> 00:06:43,839
Speaker 1: the government by blocking the orders of lower courts until

124
00:06:43,920 --> 00:06:47,440
Speaker 1: legal challenges can go through the normal appeals process, and

125
00:06:47,520 --> 00:06:52,360
Speaker 1: so allowing the Trump administration to implement its policies. Last Friday,

126
00:06:52,360 --> 00:06:55,880
Speaker 1: in a dissent, Justice Sonya Soto Mayor called the Conservative

127
00:06:55,960 --> 00:06:59,239
Speaker 1: justices on this pattern. I've been talking to Professor Stephen

128
00:06:59,320 --> 00:07:02,640
Speaker 1: Vladdock of the University of Texas Law School. Steve, you

129
00:07:02,800 --> 00:07:05,640
Speaker 1: researched and wrote a paper on this before the Soda

130
00:07:05,680 --> 00:07:08,599
Speaker 1: Mayor descent. In fact, she cited that paper in a

131
00:07:08,680 --> 00:07:13,080
Speaker 1: prior dissent. Why did you decide to research this topic, June.

132
00:07:13,120 --> 00:07:15,400
Speaker 1: I think those of us who watched the court carefully

133
00:07:15,480 --> 00:07:19,920
Speaker 1: and closely, I think had sort of anecdotal senses that

134
00:07:19,960 --> 00:07:22,680
Speaker 1: there was an uptick in what the Solicitor General was doing,

135
00:07:23,040 --> 00:07:24,680
Speaker 1: and you know, so I thought it might be worth

136
00:07:24,680 --> 00:07:28,400
Speaker 1: trying to convert the anecdotes into data. So I started

137
00:07:28,440 --> 00:07:31,560
Speaker 1: first by, you know, trying to compile a list of

138
00:07:31,600 --> 00:07:34,560
Speaker 1: all of the times Trump administration had tried to basically

139
00:07:34,640 --> 00:07:37,400
Speaker 1: jump the queue since it came into office. And then

140
00:07:37,440 --> 00:07:40,320
Speaker 1: I went back and tried to contrast that with you know, however,

141
00:07:40,400 --> 00:07:43,200
Speaker 1: much data was available, but the best data really dates

142
00:07:43,280 --> 00:07:45,600
Speaker 1: only from two thousand onwards. So that's why I focused

143
00:07:45,640 --> 00:07:48,560
Speaker 1: on the Bush and Obama administrations. And you know, the

144
00:07:48,640 --> 00:07:51,080
Speaker 1: more work I did June, the more the data seemed

145
00:07:51,080 --> 00:07:55,480
Speaker 1: to be quite striking in the contrast between the paucity

146
00:07:55,520 --> 00:07:59,000
Speaker 1: of these instances during the prior two administrations, you know,

147
00:07:59,040 --> 00:08:03,240
Speaker 1: across a very different ideological valences with what's been going

148
00:08:03,360 --> 00:08:06,000
Speaker 1: on lately. And so then I sort of said, well,

149
00:08:06,000 --> 00:08:08,040
Speaker 1: you know, let's try to figure out why is this happening.

150
00:08:08,480 --> 00:08:11,480
Speaker 1: You know, A common complaint, a common sort of critiqua

151
00:08:11,560 --> 00:08:14,400
Speaker 1: common defense of this new aggressiveness on the s g

152
00:08:14,560 --> 00:08:17,080
Speaker 1: S part is that President Trump has been subject to

153
00:08:17,080 --> 00:08:21,000
Speaker 1: an unprecedented number of nationwide injunctions. That's true descriptively, but

154
00:08:21,040 --> 00:08:23,160
Speaker 1: that's not really what's going on in the Supreme Court.

155
00:08:23,160 --> 00:08:27,080
Speaker 1: I mean, as last Friday's order helps the underscore, many

156
00:08:27,120 --> 00:08:30,360
Speaker 1: of these cases actually are not nationwide injunctions. And that's

157
00:08:30,360 --> 00:08:32,080
Speaker 1: why I think we have to be careful to be

158
00:08:32,240 --> 00:08:34,440
Speaker 1: nuanced about this and not just sort of jump at

159
00:08:34,480 --> 00:08:37,080
Speaker 1: the superficial headlines like I think too many people have

160
00:08:37,200 --> 00:08:39,480
Speaker 1: these days. So, Steve, we've been talking about the number

161
00:08:39,480 --> 00:08:42,880
Speaker 1: of requests from the Trump administration for stays from lower

162
00:08:42,880 --> 00:08:46,000
Speaker 1: court orders. Do you know how many they've actually won?

163
00:08:46,679 --> 00:08:48,679
Speaker 1: I did look at the success rate, So there have been,

164
00:08:49,000 --> 00:08:51,800
Speaker 1: as I said, twenty four different applications from the Trump

165
00:08:51,840 --> 00:08:55,319
Speaker 1: administration for stays, Counting last Friday's ruling in the public

166
00:08:55,400 --> 00:08:58,440
Speaker 1: charge case. This is now the eleventh that was granted

167
00:08:58,480 --> 00:09:01,040
Speaker 1: in full. Another three have been granted in part in

168
00:09:01,080 --> 00:09:03,800
Speaker 1: the travel damp cases. So that's fourteen where at least

169
00:09:03,880 --> 00:09:06,640
Speaker 1: part of the lower court decision has been stayed, Three

170
00:09:06,679 --> 00:09:09,559
Speaker 1: were withdrawn by the government because circumstances changed while the

171
00:09:09,600 --> 00:09:12,439
Speaker 1: application was pending, and then seven have been denied. So

172
00:09:12,840 --> 00:09:16,240
Speaker 1: it's a good batting average for this listener generals, not

173
00:09:16,320 --> 00:09:19,240
Speaker 1: a perfect batting average. But I think the real key

174
00:09:19,280 --> 00:09:21,720
Speaker 1: here is that the grants have tended to be in

175
00:09:21,760 --> 00:09:26,440
Speaker 1: these close divisive contexts, where like Lass Friday, the votes

176
00:09:26,480 --> 00:09:28,640
Speaker 1: were often five to four June. If you go back

177
00:09:28,640 --> 00:09:31,120
Speaker 1: and look at the sixteen years of the Bush and

178
00:09:31,200 --> 00:09:36,280
Speaker 1: Obama administrations, not one of the eight stay requests from

179
00:09:36,320 --> 00:09:38,920
Speaker 1: the Bush Obama's Listeners General were met with a five

180
00:09:38,960 --> 00:09:41,120
Speaker 1: to four vote in either direction. And indeed, of the

181
00:09:41,160 --> 00:09:44,880
Speaker 1: eight requests, only one provoked any dissents. So it's not

182
00:09:45,040 --> 00:09:48,000
Speaker 1: just the volume that's increased, and it's not just that

183
00:09:48,080 --> 00:09:52,120
Speaker 1: the Court is acquiescing in these requests more often. It's

184
00:09:52,160 --> 00:09:56,400
Speaker 1: also that they've become much more ideologically charged and politically divisive.

185
00:09:56,840 --> 00:09:58,840
Speaker 1: And I think that's a lot of what Justice said

186
00:09:58,880 --> 00:10:01,640
Speaker 1: a Mayor was reacting to, not just in her descent

187
00:10:02,040 --> 00:10:05,440
Speaker 1: on Friday, but in her descent last September in the

188
00:10:05,480 --> 00:10:08,440
Speaker 1: second Asylum band case, where she leveled similar charges against

189
00:10:08,480 --> 00:10:12,960
Speaker 1: the majority. If there is even this appearance that the

190
00:10:13,000 --> 00:10:17,559
Speaker 1: Supreme Court is bending the rules for the Trump administration,

191
00:10:18,240 --> 00:10:22,720
Speaker 1: does it surprise you that Justice Roberts is still voting

192
00:10:22,760 --> 00:10:26,199
Speaker 1: with the conservatives in these matters? So I mean I

193
00:10:26,200 --> 00:10:28,320
Speaker 1: should say, you know, the Chief Justice had actually joined

194
00:10:28,320 --> 00:10:30,360
Speaker 1: the liberals in a couple of these, so you know,

195
00:10:30,440 --> 00:10:32,680
Speaker 1: two of the ones that the Trump administration has lost,

196
00:10:33,000 --> 00:10:35,200
Speaker 1: the Chief was one of the key votes with the

197
00:10:35,320 --> 00:10:38,720
Speaker 1: with the lefties. But um, you know, I think again

198
00:10:38,760 --> 00:10:41,959
Speaker 1: we have to separate Chief Justice Roberts the institutionalist from

199
00:10:42,040 --> 00:10:45,360
Speaker 1: Chief Justice Roberts the lawyer. John Roberts is actually one

200
00:10:45,400 --> 00:10:49,320
Speaker 1: of the leading jurists with regard to the subtle doctrinal

201
00:10:49,360 --> 00:10:53,000
Speaker 1: trend that I think is behind this shift, where you know,

202
00:10:53,080 --> 00:10:57,160
Speaker 1: he saims that the government is irreparably harmed any time

203
00:10:57,240 --> 00:10:59,800
Speaker 1: a statute is enjoined or a policy is enjoyed without

204
00:11:00,120 --> 00:11:03,760
Speaker 1: ard to the conflicting impact on the public. So I

205
00:11:03,760 --> 00:11:06,840
Speaker 1: think on the merits he actually is perhaps leading the

206
00:11:06,920 --> 00:11:09,120
Speaker 1: charge in this respect. But and this is a point

207
00:11:09,160 --> 00:11:11,160
Speaker 1: I try to make in the paper. I think it

208
00:11:11,200 --> 00:11:15,400
Speaker 1: would behoove him and the Court to actually say what's

209
00:11:15,440 --> 00:11:19,600
Speaker 1: going on, because otherwise you do have the specter of

210
00:11:19,800 --> 00:11:25,080
Speaker 1: partisan political bias as opposed to a doctrinal shift that June.

211
00:11:25,120 --> 00:11:27,960
Speaker 1: I don't think it is ultimately correct, but is at

212
00:11:28,040 --> 00:11:33,840
Speaker 1: least something that could be defended on nonpartisan, non ideological terms,

213
00:11:33,880 --> 00:11:36,160
Speaker 1: where if a majority of the Court issues an opinion

214
00:11:36,559 --> 00:11:39,800
Speaker 1: setting out a new standard for stay applications when the

215
00:11:39,880 --> 00:11:43,200
Speaker 1: government is the complaining party, presumably that standard will be

216
00:11:43,200 --> 00:11:46,520
Speaker 1: good for the next administration too. And the longer that

217
00:11:46,640 --> 00:11:48,880
Speaker 1: this goes on without the Court saying anything, and the

218
00:11:48,920 --> 00:11:53,840
Speaker 1: longer that there's no explication and no explanation of why

219
00:11:53,880 --> 00:11:55,760
Speaker 1: there's such a disconnect between the lower courts and the

220
00:11:55,760 --> 00:11:59,360
Speaker 1: Supreme Court on this technical the critical question of when

221
00:11:59,400 --> 00:12:02,240
Speaker 1: the government's title to emergency relief, I think the more

222
00:12:02,320 --> 00:12:05,760
Speaker 1: the Court is open to the very kinds of partisan

223
00:12:06,040 --> 00:12:10,040
Speaker 1: bias charges that we've seen after in light of Friday's ruling,

224
00:12:10,760 --> 00:12:14,880
Speaker 1: President Trump asked for the recusal of not only Justice Sodamayor,

225
00:12:15,040 --> 00:12:18,360
Speaker 1: but also of Justice Ruth Bader Ginsburg for a comment

226
00:12:18,559 --> 00:12:21,760
Speaker 1: that she made about him when he was running in

227
00:12:23,559 --> 00:12:27,480
Speaker 1: Does the Supreme Court have any rules for when the

228
00:12:27,600 --> 00:12:31,440
Speaker 1: justices should recuse themselves? Yes, and no. I mean, the

229
00:12:31,480 --> 00:12:34,200
Speaker 1: Supreme Court is the only federal court that's not bound

230
00:12:34,280 --> 00:12:38,160
Speaker 1: by the relevant Federal Statute USC Section. You know, the

231
00:12:38,240 --> 00:12:41,679
Speaker 1: justices do have their own sort of internal I guess

232
00:12:41,720 --> 00:12:45,079
Speaker 1: norms is probably better than rules about recusal. And every

233
00:12:45,080 --> 00:12:47,160
Speaker 1: once in a while you'll see a justice write a

234
00:12:47,200 --> 00:12:50,120
Speaker 1: short opinion to explain why they either did or did

235
00:12:50,120 --> 00:12:52,920
Speaker 1: not choose to recuse in a particular case. But you know,

236
00:12:52,960 --> 00:12:54,680
Speaker 1: this is a subject on which the justices keep their

237
00:12:54,720 --> 00:12:57,720
Speaker 1: own company. And frankly, I mean, I think the President's

238
00:12:57,760 --> 00:13:00,120
Speaker 1: comments are rather wide of the mark. I mean, I

239
00:13:00,120 --> 00:13:02,439
Speaker 1: think there are context in which we ought to be

240
00:13:02,800 --> 00:13:06,760
Speaker 1: asking serious questions about whether the justices are hopelessly and

241
00:13:06,760 --> 00:13:10,080
Speaker 1: irrevocably prejudiced in favor of or against the particular party.

242
00:13:10,280 --> 00:13:13,640
Speaker 1: But if we started requiring the justices to recuse in

243
00:13:13,720 --> 00:13:17,160
Speaker 1: any case in which we all had concerns that their

244
00:13:17,200 --> 00:13:19,560
Speaker 1: minds are made up, we wouldn't have a court for

245
00:13:19,640 --> 00:13:22,120
Speaker 1: very long, and we wouldn't have justices to hear most

246
00:13:22,120 --> 00:13:24,400
Speaker 1: of these cases. So, you know, I think the recusal

247
00:13:24,520 --> 00:13:28,120
Speaker 1: conversation is really typical Trump in effort to rile up

248
00:13:28,120 --> 00:13:31,160
Speaker 1: the base, but not in especially serious legal charge. So

249
00:13:31,480 --> 00:13:34,719
Speaker 1: then you're saying that there are no reasons for so

250
00:13:34,920 --> 00:13:39,680
Speaker 1: to Mayor or Ginsburg to recuse themselves in Trump cases.

251
00:13:39,920 --> 00:13:41,200
Speaker 1: I mean, so first I should say I think these

252
00:13:41,240 --> 00:13:43,480
Speaker 1: are very separate cases. I mean, the argument, apparently for

253
00:13:43,480 --> 00:13:45,920
Speaker 1: some do Mariorit to recuse herself is because of something

254
00:13:46,040 --> 00:13:49,600
Speaker 1: she never actually said, which is the Fox News version

255
00:13:49,600 --> 00:13:52,400
Speaker 1: of her descent from Friday, that she accused the majority

256
00:13:52,400 --> 00:13:55,280
Speaker 1: of pro Trump bias. Never says that doesn't accuse him

257
00:13:55,280 --> 00:13:57,280
Speaker 1: of that, And in any event, it's in an opinion.

258
00:13:57,520 --> 00:14:00,480
Speaker 1: I actually think there's a stronger argument about some of

259
00:14:00,480 --> 00:14:03,760
Speaker 1: the public comments that Justice Ginsburg has made about the President.

260
00:14:03,800 --> 00:14:06,280
Speaker 1: But she's apologized for them, and she has I think

261
00:14:06,600 --> 00:14:09,400
Speaker 1: expressed regret at making them, And I do think we

262
00:14:09,440 --> 00:14:13,000
Speaker 1: ought to be careful to distinguish between the propriety of

263
00:14:13,040 --> 00:14:17,640
Speaker 1: the justices speaking out publicly about politicians, individuals in the news,

264
00:14:17,679 --> 00:14:20,720
Speaker 1: cases in the news, etcetera, versus what they write in

265
00:14:20,800 --> 00:14:24,320
Speaker 1: their job as justices, in their opinions. The notion that

266
00:14:24,400 --> 00:14:28,600
Speaker 1: justice should ever be asked to recuse because they write

267
00:14:28,600 --> 00:14:31,640
Speaker 1: a dissent where they are concerned that the majority is

268
00:14:31,680 --> 00:14:35,080
Speaker 1: tipping the scales in favor of an institutional litigant. I

269
00:14:35,080 --> 00:14:36,920
Speaker 1: think it is a pretty dangerous path to go down,

270
00:14:36,920 --> 00:14:39,440
Speaker 1: and why I would treat the Soda my Organs Row

271
00:14:39,480 --> 00:14:41,520
Speaker 1: cases very differently. I don't think either of them have

272
00:14:41,600 --> 00:14:43,960
Speaker 1: any need to recuse, but I think the Soda mir

273
00:14:44,000 --> 00:14:47,400
Speaker 1: case is almost frivolous. Thinking back to Justice aunt And

274
00:14:47,440 --> 00:14:53,160
Speaker 1: in Scalia, he wrote quite a few dissents that were fiery.

275
00:14:53,680 --> 00:14:55,560
Speaker 1: That's right, I mean, I think folks should be careful

276
00:14:55,560 --> 00:14:57,520
Speaker 1: about what they wish for here. This is all happening

277
00:14:57,520 --> 00:14:59,920
Speaker 1: at the same time as we are seeing reports in

278
00:15:00,040 --> 00:15:03,040
Speaker 1: the news that Jenny Thomas, the wife of Justice Thomas,

279
00:15:03,200 --> 00:15:05,760
Speaker 1: has been directly involved in efforts by the White House

280
00:15:05,800 --> 00:15:09,240
Speaker 1: to purge the executive branch of employees who are not

281
00:15:09,320 --> 00:15:12,160
Speaker 1: sufficiently loyal to the President. I don't think that's the

282
00:15:12,160 --> 00:15:14,720
Speaker 1: reason why anyone should ask Justice Thomas to recuse from

283
00:15:14,760 --> 00:15:17,480
Speaker 1: cases involving Trump. But this is a dangerous road to

284
00:15:17,520 --> 00:15:20,080
Speaker 1: go down when you've got a Supreme Court of nine

285
00:15:20,160 --> 00:15:23,320
Speaker 1: justices with no backups. You know, in the lower courts,

286
00:15:23,360 --> 00:15:25,400
Speaker 1: if the judge accuses, there are plenty of other judges

287
00:15:25,400 --> 00:15:28,040
Speaker 1: to take their place. That's not true for the Supreme Court.

288
00:15:28,040 --> 00:15:30,360
Speaker 1: And I think that really helps to underscore why the

289
00:15:30,440 --> 00:15:34,800
Speaker 1: recusal conversation is often simply about messaging and not really

290
00:15:34,920 --> 00:15:39,320
Speaker 1: substantive concerns that the justices are somehow more or less

291
00:15:39,360 --> 00:15:43,600
Speaker 1: able to discharge their duties in particular cases. And finally,

292
00:15:44,000 --> 00:15:47,720
Speaker 1: the Philadelphia Bar Association has come out in a statement

293
00:15:47,760 --> 00:15:52,640
Speaker 1: condemning recent unwarranted attacks on the rule of law and

294
00:15:52,760 --> 00:15:59,080
Speaker 1: judicial independence, and Chief Justice roberts In came back with

295
00:15:59,160 --> 00:16:02,960
Speaker 1: a surprising comment when Trump called a judge who ruled

296
00:16:02,960 --> 00:16:06,440
Speaker 1: against an administration policy and Obama judge, we haven't heard

297
00:16:06,480 --> 00:16:10,760
Speaker 1: anything from either Chief Justice roberts or Justice Sonya. So

298
00:16:10,880 --> 00:16:14,760
Speaker 1: to Mayor, doesn't this call for a word from the Chief.

299
00:16:15,520 --> 00:16:17,480
Speaker 1: It certainly doesn't call for a words from justice of

300
00:16:17,480 --> 00:16:19,200
Speaker 1: my arm just a of my ors who just keep

301
00:16:19,240 --> 00:16:21,160
Speaker 1: doing her job and keep her head down and let

302
00:16:21,160 --> 00:16:25,160
Speaker 1: people defend her. I was heartened by his statement. Um.

303
00:16:25,680 --> 00:16:28,200
Speaker 1: I think it was a very deliberate and calculated statement

304
00:16:28,240 --> 00:16:30,960
Speaker 1: on the Chief's part. I've been surprised at how little

305
00:16:31,000 --> 00:16:33,640
Speaker 1: he has said since June, and I think, you know,

306
00:16:33,720 --> 00:16:36,240
Speaker 1: we saw some of that during the impeachment trial in

307
00:16:36,240 --> 00:16:39,360
Speaker 1: the Senate. You know, the one time the Chief chose

308
00:16:39,480 --> 00:16:42,440
Speaker 1: to sort of speak up was to chastise both sides

309
00:16:42,480 --> 00:16:45,320
Speaker 1: for their lack of decorum. I think it would be

310
00:16:45,480 --> 00:16:49,120
Speaker 1: helpful to have the Chief, if not the entire court

311
00:16:49,280 --> 00:16:52,360
Speaker 1: somehow pushed back against these attacks on, for example, Judge

312
00:16:52,440 --> 00:16:55,920
Speaker 1: Jackson in the Roger Stone case. But you know, the

313
00:16:56,000 --> 00:16:59,440
Speaker 1: silence here, I think is understandable because this is not

314
00:16:59,560 --> 00:17:01,280
Speaker 1: something that Chief wants to be doing. I just think

315
00:17:01,320 --> 00:17:04,760
Speaker 1: it is increasingly unfortunate because it is I think suggesting,

316
00:17:05,240 --> 00:17:09,160
Speaker 1: perhaps incorrectly, that the President that he faces no consequences

317
00:17:09,680 --> 00:17:14,159
Speaker 1: for publicly seeking to vilify judges who just happened to

318
00:17:14,240 --> 00:17:17,720
Speaker 1: rule against him and for trying to basically bully judges

319
00:17:18,080 --> 00:17:20,560
Speaker 1: into doing his bidding. And June in that respect, I

320
00:17:20,560 --> 00:17:23,240
Speaker 1: don't think it's a coincidence that the President you know,

321
00:17:23,400 --> 00:17:26,720
Speaker 1: is on this campaign against justice. So domior in ginsburg

322
00:17:27,200 --> 00:17:29,640
Speaker 1: Um with less than a month before the Supreme Court

323
00:17:29,680 --> 00:17:33,040
Speaker 1: is going to hear the three cases about his financial record.

324
00:17:33,320 --> 00:17:35,640
Speaker 1: Thanks so much for being on Bloomberg Lass Steve. That's

325
00:17:35,640 --> 00:17:38,959
Speaker 1: Stephen Laddick, a professor at the University of Texas Law School.

326
00:17:39,160 --> 00:17:41,280
Speaker 1: I'm June Grosso and this is Bloomberg