WEBVTT - The Numbers Are On Sotomayor’s Side

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<v Speaker 1>This is Bloomberg Law with June Grassoe from Bloomberg Radio.

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<v Speaker 1>President Trump is ratcheting off his unusual battle with the judiciary,

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<v Speaker 1>this time calling on Supreme Court Justices Sonya Soto Mayor

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<v Speaker 1>and Ruth Bader Ginsburg to recuse themselves from future cases

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<v Speaker 1>involving him. Trump based his criticism on a dissenting opinion

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<v Speaker 1>by Justice so To Mayor last Friday and a comment

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<v Speaker 1>by Justice Ginsburg four years ago. Her statement was so

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<v Speaker 1>inappropriate when you're a justice of the Supreme Court, and

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<v Speaker 1>it's almost what she's trying to do is take the

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<v Speaker 1>people that do feel a different way and get them

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<v Speaker 1>to vote the way that she would like them to vote.

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<v Speaker 1>I just thought it was so inappropriate, such a terrible

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<v Speaker 1>statement for Supreme Court justice. In her descent, so To

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<v Speaker 1>Mayor criticized the Court's conservatives for granting so many of

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<v Speaker 1>the Trump administration's emergencies stay requests that it's become the

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<v Speaker 1>new normal instead of the exception. And so To Mayor

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<v Speaker 1>has the numbers to support her dissent. Joining me now

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<v Speaker 1>is Stephen Vladdock, a professor at the University of Texas

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<v Speaker 1>Law School. He researched the numbers of emergency relief request

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<v Speaker 1>the Trump administration has made for a Harvard Law Review

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<v Speaker 1>article that's so to major sided in a similar dissent,

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<v Speaker 1>Let's start first with what the Court actually did in

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<v Speaker 1>that vote last Friday. Sure, so you know that the

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<v Speaker 1>Supreme Court had already put on hold a nationwide injunction

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<v Speaker 1>and issued by a federal judge in New York against

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<v Speaker 1>this so called public charge rule, this you know, new

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<v Speaker 1>immigration rule that would make it harder for individuals who

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<v Speaker 1>the government deems likely to need some kind of public

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<v Speaker 1>assistance to receive any kind of lawful immigration status. But

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<v Speaker 1>there was also a non nationwide injunction just in Illinois,

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<v Speaker 1>and this was the government's request to the Supreme Court

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<v Speaker 1>to also put that statewide injunction on hold. That's what

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<v Speaker 1>the Supreme Court, by a five to four vote, agreed

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<v Speaker 1>to do last Friday, so that there would be a

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<v Speaker 1>nationwide lift not just of the New York conjunction, but

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<v Speaker 1>of the Illinois injunction as well. So, while the case

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<v Speaker 1>is winding its way through the lower courts, the justices

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<v Speaker 1>are allowing the President to do what he wants, and

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<v Speaker 1>it could take years for the case to get back

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<v Speaker 1>to the Court. So it's a win win for the administration.

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<v Speaker 1>That's right, and I think it's worth stressing it's not

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<v Speaker 1>just that it could and probably will take years for

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<v Speaker 1>the cases to get back to the Supreme Court, that

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<v Speaker 1>there's no guarantee that the cases will actually ever get

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<v Speaker 1>to the Supreme Court. I mean, we saw with travel

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<v Speaker 1>Band two point oh, and we saw with one of

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<v Speaker 1>the early rounds of the census litigation contacts in which

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<v Speaker 1>the government went running to the Supreme Court for an

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<v Speaker 1>emergency stay, got the emergency's day, and then the government

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<v Speaker 1>actually abandoned what it was doing before the merits ever

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<v Speaker 1>got to the Supreme Court. So it's basically a heads

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<v Speaker 1>we win, tails you lose. Where without any kind of

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<v Speaker 1>conclusive resolution of these legal questions, the government basically gets

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<v Speaker 1>somewhere between one and three three years to put these

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<v Speaker 1>programs into effect. Does that mean the justices who voted

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<v Speaker 1>for the Trump administration are buying the administration's argument that

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<v Speaker 1>this is an emergency situation and the government would suffer

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<v Speaker 1>irreparable harm if it can't implement this new rule. It's

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<v Speaker 1>hard to say, June, because in theory, the Court is

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<v Speaker 1>supposed to be balancing four factors when it decides whether

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<v Speaker 1>to grant us stay in a case like this pending

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<v Speaker 1>an appeal. One of those factors is the likelihood of

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<v Speaker 1>success on the merits. So, of course, you know, if

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<v Speaker 1>the justices were convinced there was no chance the government's

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<v Speaker 1>gonna win, there shouldn't be a stay at all. But

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<v Speaker 1>even in cases where there's a majority of justices who

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<v Speaker 1>do believe that the government has a likeli to success

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<v Speaker 1>on the merits, that's not supposed to be conclusive. That

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<v Speaker 1>is to say, even then, that's supposed to be balanced

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<v Speaker 1>against just exactly what the harm is, either to the

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<v Speaker 1>government from putting this policy on hold pending these appeals,

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<v Speaker 1>or to those who the policy effects by allowing the

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<v Speaker 1>policy to go into effect pending the appeals. And you know, Jude,

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<v Speaker 1>I think the frustrating trend that Justice so to Mayor,

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<v Speaker 1>was planting without in her descent that I've actually written

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<v Speaker 1>about it some length. The trend is that there's a

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<v Speaker 1>majority of the Court that now it seems to just

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<v Speaker 1>be increasingly indifferent to what we call balancing of the

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<v Speaker 1>equities to contrasting the harm to the government on the

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<v Speaker 1>one hand with the harm to the public where the

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<v Speaker 1>harm to those affected by these policies has just about

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<v Speaker 1>dropped out of the calculus. And if you drop that

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<v Speaker 1>out of the calculus, June, then yeah, this really does

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<v Speaker 1>become increasingly just a question of whether five or more

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<v Speaker 1>justices believe that when push comes to shove, the government's

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<v Speaker 1>gonna win. The Supreme Court is the last word, and

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<v Speaker 1>usually it lets novel issues percolate, a word we usually

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<v Speaker 1>hear with respect to this in the lower courts before

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<v Speaker 1>it even considers a novel issue. And that's something she

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<v Speaker 1>also addresses. So give us a little bit of the

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<v Speaker 1>context of what she said. Yeah, I mean, you know,

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<v Speaker 1>this is a court that lately has been very insistent

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<v Speaker 1>as the court like say that it's a court of

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<v Speaker 1>review not first view. That's on shows up eleven different

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<v Speaker 1>times last term alone, and so historically what that's meant, June,

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<v Speaker 1>is that this is a court that's been very reluctant

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<v Speaker 1>to grant stays, where stays really are the exception not

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<v Speaker 1>the rule um And to that end, I mean, if

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<v Speaker 1>you look at the practice during the George W. Bush

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<v Speaker 1>administration all eight years and the obadministration all the years,

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<v Speaker 1>you combine those two very different administrations, the government only

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<v Speaker 1>sought a stay from the Supreme Court of a lower

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<v Speaker 1>court decision a total of eight times in those sixteen years.

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<v Speaker 1>Contrast that with the first three years of the Trump administration,

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<v Speaker 1>where the government has sought twenty four stays um, including

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<v Speaker 1>ten during the October term alone. So part of I

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<v Speaker 1>think what Justice stud of myor is complaining about is

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<v Speaker 1>not just that the government has become so much more

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<v Speaker 1>willing to seek this kind of relief from the Supreme Court,

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<v Speaker 1>but that the majority, you know, even in the cases

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<v Speaker 1>where the majority has refused to grant the relief, there's

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<v Speaker 1>been no expression from the majority that this uptick is inappropriate,

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<v Speaker 1>that this listener general is taking advantage of the court

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<v Speaker 1>in some respect. And so that's why I think Justice

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<v Speaker 1>is rightly concerned that this has becoming the new normal

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<v Speaker 1>where any time the government is subject to any injunction

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<v Speaker 1>nationwide or not of any policy, no matter how controversial,

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<v Speaker 1>no matter how debatable, it runs to the Supreme Court

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<v Speaker 1>and is able to get a stay while the litigation

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<v Speaker 1>challenging that policy, which ultimately might succeed, goes forward. Many

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<v Speaker 1>of President Trump's victories at the Supreme Court so far

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<v Speaker 1>have been temporary, the Supreme Court granting emergency relief to

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<v Speaker 1>the government by blocking the orders of lower courts until

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<v Speaker 1>legal challenges can go through the normal appeals process, and

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<v Speaker 1>so allowing the Trump administration to implement its policies. Last Friday,

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<v Speaker 1>in a dissent, Justice Sonya Soto Mayor called the Conservative

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<v Speaker 1>justices on this pattern. I've been talking to Professor Stephen

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<v Speaker 1>Vladdock of the University of Texas Law School. Steve, you

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<v Speaker 1>researched and wrote a paper on this before the Soda

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<v Speaker 1>Mayor descent. In fact, she cited that paper in a

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<v Speaker 1>prior dissent. Why did you decide to research this topic, June.

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<v Speaker 1>I think those of us who watched the court carefully

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<v Speaker 1>and closely, I think had sort of anecdotal senses that

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<v Speaker 1>there was an uptick in what the Solicitor General was doing,

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<v Speaker 1>and you know, so I thought it might be worth

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<v Speaker 1>trying to convert the anecdotes into data. So I started

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<v Speaker 1>first by, you know, trying to compile a list of

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<v Speaker 1>all of the times Trump administration had tried to basically

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<v Speaker 1>jump the queue since it came into office. And then

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<v Speaker 1>I went back and tried to contrast that with you know, however,

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<v Speaker 1>much data was available, but the best data really dates

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<v Speaker 1>only from two thousand onwards. So that's why I focused

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<v Speaker 1>on the Bush and Obama administrations. And you know, the

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<v Speaker 1>more work I did June, the more the data seemed

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<v Speaker 1>to be quite striking in the contrast between the paucity

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<v Speaker 1>of these instances during the prior two administrations, you know,

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<v Speaker 1>across a very different ideological valences with what's been going

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<v Speaker 1>on lately. And so then I sort of said, well,

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<v Speaker 1>you know, let's try to figure out why is this happening.

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<v Speaker 1>You know, A common complaint, a common sort of critiqua

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<v Speaker 1>common defense of this new aggressiveness on the s g

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<v Speaker 1>S part is that President Trump has been subject to

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<v Speaker 1>an unprecedented number of nationwide injunctions. That's true descriptively, but

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<v Speaker 1>that's not really what's going on in the Supreme Court.

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<v Speaker 1>I mean, as last Friday's order helps the underscore, many

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<v Speaker 1>of these cases actually are not nationwide injunctions. And that's

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<v Speaker 1>why I think we have to be careful to be

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<v Speaker 1>nuanced about this and not just sort of jump at

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<v Speaker 1>the superficial headlines like I think too many people have

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<v Speaker 1>these days. So, Steve, we've been talking about the number

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<v Speaker 1>of requests from the Trump administration for stays from lower

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<v Speaker 1>court orders. Do you know how many they've actually won?

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<v Speaker 1>I did look at the success rate, So there have been,

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<v Speaker 1>as I said, twenty four different applications from the Trump

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<v Speaker 1>administration for stays, Counting last Friday's ruling in the public

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<v Speaker 1>charge case. This is now the eleventh that was granted

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<v Speaker 1>in full. Another three have been granted in part in

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<v Speaker 1>the travel damp cases. So that's fourteen where at least

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<v Speaker 1>part of the lower court decision has been stayed, Three

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<v Speaker 1>were withdrawn by the government because circumstances changed while the

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<v Speaker 1>application was pending, and then seven have been denied. So

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<v Speaker 1>it's a good batting average for this listener generals, not

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<v Speaker 1>a perfect batting average. But I think the real key

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<v Speaker 1>here is that the grants have tended to be in

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<v Speaker 1>these close divisive contexts, where like Lass Friday, the votes

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<v Speaker 1>were often five to four June. If you go back

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<v Speaker 1>and look at the sixteen years of the Bush and

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<v Speaker 1>Obama administrations, not one of the eight stay requests from

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<v Speaker 1>the Bush Obama's Listeners General were met with a five

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<v Speaker 1>to four vote in either direction. And indeed, of the

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<v Speaker 1>eight requests, only one provoked any dissents. So it's not

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<v Speaker 1>just the volume that's increased, and it's not just that

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<v Speaker 1>the Court is acquiescing in these requests more often. It's

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<v Speaker 1>also that they've become much more ideologically charged and politically divisive.

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<v Speaker 1>And I think that's a lot of what Justice said

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<v Speaker 1>a Mayor was reacting to, not just in her descent

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<v Speaker 1>on Friday, but in her descent last September in the

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<v Speaker 1>second Asylum band case, where she leveled similar charges against

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<v Speaker 1>the majority. If there is even this appearance that the

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<v Speaker 1>Supreme Court is bending the rules for the Trump administration,

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<v Speaker 1>does it surprise you that Justice Roberts is still voting

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<v Speaker 1>with the conservatives in these matters? So I mean I

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<v Speaker 1>should say, you know, the Chief Justice had actually joined

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<v Speaker 1>the liberals in a couple of these, so you know,

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<v Speaker 1>two of the ones that the Trump administration has lost,

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<v Speaker 1>the Chief was one of the key votes with the

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<v Speaker 1>with the lefties. But um, you know, I think again

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<v Speaker 1>we have to separate Chief Justice Roberts the institutionalist from

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<v Speaker 1>Chief Justice Roberts the lawyer. John Roberts is actually one

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<v Speaker 1>of the leading jurists with regard to the subtle doctrinal

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<v Speaker 1>trend that I think is behind this shift, where you know,

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<v Speaker 1>he saims that the government is irreparably harmed any time

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<v Speaker 1>a statute is enjoined or a policy is enjoyed without

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<v Speaker 1>ard to the conflicting impact on the public. So I

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<v Speaker 1>think on the merits he actually is perhaps leading the

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<v Speaker 1>charge in this respect. But and this is a point

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<v Speaker 1>I try to make in the paper. I think it

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<v Speaker 1>would behoove him and the Court to actually say what's

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<v Speaker 1>going on, because otherwise you do have the specter of

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<v Speaker 1>partisan political bias as opposed to a doctrinal shift that June.

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<v Speaker 1>I don't think it is ultimately correct, but is at

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<v Speaker 1>least something that could be defended on nonpartisan, non ideological terms,

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<v Speaker 1>where if a majority of the Court issues an opinion

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<v Speaker 1>setting out a new standard for stay applications when the

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<v Speaker 1>government is the complaining party, presumably that standard will be

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<v Speaker 1>good for the next administration too. And the longer that

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<v Speaker 1>this goes on without the Court saying anything, and the

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<v Speaker 1>longer that there's no explication and no explanation of why

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<v Speaker 1>there's such a disconnect between the lower courts and the

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<v Speaker 1>Supreme Court on this technical the critical question of when

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<v Speaker 1>the government's title to emergency relief, I think the more

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<v Speaker 1>the Court is open to the very kinds of partisan

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<v Speaker 1>bias charges that we've seen after in light of Friday's ruling,

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<v Speaker 1>President Trump asked for the recusal of not only Justice Sodamayor,

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<v Speaker 1>but also of Justice Ruth Bader Ginsburg for a comment

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<v Speaker 1>that she made about him when he was running in

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<v Speaker 1>Does the Supreme Court have any rules for when the

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<v Speaker 1>justices should recuse themselves? Yes, and no. I mean, the

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<v Speaker 1>Supreme Court is the only federal court that's not bound

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<v Speaker 1>by the relevant Federal Statute USC Section. You know, the

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<v Speaker 1>justices do have their own sort of internal I guess

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<v Speaker 1>norms is probably better than rules about recusal. And every

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<v Speaker 1>once in a while you'll see a justice write a

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<v Speaker 1>short opinion to explain why they either did or did

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<v Speaker 1>not choose to recuse in a particular case. But you know,

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<v Speaker 1>this is a subject on which the justices keep their

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<v Speaker 1>own company. And frankly, I mean, I think the President's

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<v Speaker 1>comments are rather wide of the mark. I mean, I

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<v Speaker 1>think there are context in which we ought to be

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<v Speaker 1>asking serious questions about whether the justices are hopelessly and

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<v Speaker 1>irrevocably prejudiced in favor of or against the particular party.

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<v Speaker 1>But if we started requiring the justices to recuse in

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<v Speaker 1>any case in which we all had concerns that their

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<v Speaker 1>minds are made up, we wouldn't have a court for

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<v Speaker 1>very long, and we wouldn't have justices to hear most

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<v Speaker 1>of these cases. So, you know, I think the recusal

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<v Speaker 1>conversation is really typical Trump in effort to rile up

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<v Speaker 1>the base, but not in especially serious legal charge. So

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<v Speaker 1>then you're saying that there are no reasons for so

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<v Speaker 1>to Mayor or Ginsburg to recuse themselves in Trump cases.

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<v Speaker 1>I mean, so first I should say I think these

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<v Speaker 1>are very separate cases. I mean, the argument, apparently for

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<v Speaker 1>some do Mariorit to recuse herself is because of something

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<v Speaker 1>she never actually said, which is the Fox News version

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<v Speaker 1>of her descent from Friday, that she accused the majority

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<v Speaker 1>of pro Trump bias. Never says that doesn't accuse him

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<v Speaker 1>of that, And in any event, it's in an opinion.

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<v Speaker 1>I actually think there's a stronger argument about some of

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<v Speaker 1>the public comments that Justice Ginsburg has made about the President.

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<v Speaker 1>But she's apologized for them, and she has I think

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<v Speaker 1>expressed regret at making them, And I do think we

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<v Speaker 1>ought to be careful to distinguish between the propriety of

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<v Speaker 1>the justices speaking out publicly about politicians, individuals in the news,

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<v Speaker 1>cases in the news, etcetera, versus what they write in

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<v Speaker 1>their job as justices, in their opinions. The notion that

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<v Speaker 1>justice should ever be asked to recuse because they write

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<v Speaker 1>a dissent where they are concerned that the majority is

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<v Speaker 1>tipping the scales in favor of an institutional litigant. I

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<v Speaker 1>think it is a pretty dangerous path to go down,

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<v Speaker 1>and why I would treat the Soda my Organs Row

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<v Speaker 1>cases very differently. I don't think either of them have

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<v Speaker 1>any need to recuse, but I think the Soda mir

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<v Speaker 1>case is almost frivolous. Thinking back to Justice aunt And

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<v Speaker 1>in Scalia, he wrote quite a few dissents that were fiery.

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<v Speaker 1>That's right, I mean, I think folks should be careful

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<v Speaker 1>about what they wish for here. This is all happening

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<v Speaker 1>at the same time as we are seeing reports in

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<v Speaker 1>the news that Jenny Thomas, the wife of Justice Thomas,

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<v Speaker 1>has been directly involved in efforts by the White House

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<v Speaker 1>to purge the executive branch of employees who are not

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<v Speaker 1>sufficiently loyal to the President. I don't think that's the

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<v Speaker 1>reason why anyone should ask Justice Thomas to recuse from

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<v Speaker 1>cases involving Trump. But this is a dangerous road to

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<v Speaker 1>go down when you've got a Supreme Court of nine

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<v Speaker 1>justices with no backups. You know, in the lower courts,

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<v Speaker 1>if the judge accuses, there are plenty of other judges

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<v Speaker 1>to take their place. That's not true for the Supreme Court.

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<v Speaker 1>And I think that really helps to underscore why the

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<v Speaker 1>recusal conversation is often simply about messaging and not really

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<v Speaker 1>substantive concerns that the justices are somehow more or less

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<v Speaker 1>able to discharge their duties in particular cases. And finally,

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<v Speaker 1>the Philadelphia Bar Association has come out in a statement

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<v Speaker 1>condemning recent unwarranted attacks on the rule of law and

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<v Speaker 1>judicial independence, and Chief Justice roberts In came back with

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<v Speaker 1>a surprising comment when Trump called a judge who ruled

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<v Speaker 1>against an administration policy and Obama judge, we haven't heard

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<v Speaker 1>anything from either Chief Justice roberts or Justice Sonya. So

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<v Speaker 1>to Mayor, doesn't this call for a word from the Chief.

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<v Speaker 1>It certainly doesn't call for a words from justice of

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<v Speaker 1>my arm just a of my ors who just keep

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<v Speaker 1>doing her job and keep her head down and let

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<v Speaker 1>people defend her. I was heartened by his statement. Um.

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<v Speaker 1>I think it was a very deliberate and calculated statement

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<v Speaker 1>on the Chief's part. I've been surprised at how little

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<v Speaker 1>he has said since June, and I think, you know,

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<v Speaker 1>we saw some of that during the impeachment trial in

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<v Speaker 1>the Senate. You know, the one time the Chief chose

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<v Speaker 1>to sort of speak up was to chastise both sides

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<v Speaker 1>for their lack of decorum. I think it would be

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<v Speaker 1>helpful to have the Chief, if not the entire court

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<v Speaker 1>somehow pushed back against these attacks on, for example, Judge

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<v Speaker 1>Jackson in the Roger Stone case. But you know, the

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<v Speaker 1>silence here, I think is understandable because this is not

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<v Speaker 1>something that Chief wants to be doing. I just think

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<v Speaker 1>it is increasingly unfortunate because it is I think suggesting,

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<v Speaker 1>perhaps incorrectly, that the President that he faces no consequences

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<v Speaker 1>for publicly seeking to vilify judges who just happened to

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<v Speaker 1>rule against him and for trying to basically bully judges

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<v Speaker 1>into doing his bidding. And June in that respect, I

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<v Speaker 1>don't think it's a coincidence that the President you know,

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<v Speaker 1>is on this campaign against justice. So domior in ginsburg

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<v Speaker 1>Um with less than a month before the Supreme Court

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<v Speaker 1>is going to hear the three cases about his financial record.

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<v Speaker 1>Thanks so much for being on Bloomberg Lass Steve. That's

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<v Speaker 1>Stephen Laddick, a professor at the University of Texas Law School.

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<v Speaker 1>I'm June Grosso and this is Bloomberg