Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio.
Speaker 1: President Trump is ratcheting off his unusual battle with the judiciary,
Speaker 1: this time calling on Supreme Court Justices Sonya Soto Mayor
Speaker 1: and Ruth Bader Ginsburg to recuse themselves from future cases
Speaker 1: involving him. Trump based his criticism on a dissenting opinion
Speaker 1: by Justice so To Mayor last Friday and a comment
Speaker 1: by Justice Ginsburg four years ago. Her statement was so
Speaker 1: inappropriate when you're a justice of the Supreme Court, and
Speaker 1: it's almost what she's trying to do is take the
Speaker 1: people that do feel a different way and get them
Speaker 1: to vote the way that she would like them to vote.
Speaker 1: I just thought it was so inappropriate, such a terrible
Speaker 1: statement for Supreme Court justice. In her descent, so To
Speaker 1: Mayor criticized the Court's conservatives for granting so many of
Speaker 1: the Trump administration's emergencies stay requests that it's become the
Speaker 1: new normal instead of the exception. And so To Mayor
Speaker 1: has the numbers to support her dissent. Joining me now
Speaker 1: is Stephen Vladdock, a professor at the University of Texas
Speaker 1: Law School. He researched the numbers of emergency relief request
Speaker 1: the Trump administration has made for a Harvard Law Review
Speaker 1: article that's so to major sided in a similar dissent,
Speaker 1: Let's start first with what the Court actually did in
Speaker 1: that vote last Friday. Sure, so you know that the
Speaker 1: Supreme Court had already put on hold a nationwide injunction
Speaker 1: and issued by a federal judge in New York against
Speaker 1: this so called public charge rule, this you know, new
Speaker 1: immigration rule that would make it harder for individuals who
Speaker 1: the government deems likely to need some kind of public
Speaker 1: assistance to receive any kind of lawful immigration status. But
Speaker 1: there was also a non nationwide injunction just in Illinois,
Speaker 1: and this was the government's request to the Supreme Court
Speaker 1: to also put that statewide injunction on hold. That's what
Speaker 1: the Supreme Court, by a five to four vote, agreed
Speaker 1: to do last Friday, so that there would be a
Speaker 1: nationwide lift not just of the New York conjunction, but
Speaker 1: of the Illinois injunction as well. So, while the case
Speaker 1: is winding its way through the lower courts, the justices
Speaker 1: are allowing the President to do what he wants, and
Speaker 1: it could take years for the case to get back
Speaker 1: to the Court. So it's a win win for the administration.
Speaker 1: That's right, and I think it's worth stressing it's not
Speaker 1: just that it could and probably will take years for
Speaker 1: the cases to get back to the Supreme Court, that
Speaker 1: there's no guarantee that the cases will actually ever get
Speaker 1: to the Supreme Court. I mean, we saw with travel
Speaker 1: Band two point oh, and we saw with one of
Speaker 1: the early rounds of the census litigation contacts in which
Speaker 1: the government went running to the Supreme Court for an
Speaker 1: emergency stay, got the emergency's day, and then the government
Speaker 1: actually abandoned what it was doing before the merits ever
Speaker 1: got to the Supreme Court. So it's basically a heads
Speaker 1: we win, tails you lose. Where without any kind of
Speaker 1: conclusive resolution of these legal questions, the government basically gets
Speaker 1: somewhere between one and three three years to put these
Speaker 1: programs into effect. Does that mean the justices who voted
Speaker 1: for the Trump administration are buying the administration's argument that
Speaker 1: this is an emergency situation and the government would suffer
Speaker 1: irreparable harm if it can't implement this new rule. It's
Speaker 1: hard to say, June, because in theory, the Court is
Speaker 1: supposed to be balancing four factors when it decides whether
Speaker 1: to grant us stay in a case like this pending
Speaker 1: an appeal. One of those factors is the likelihood of
Speaker 1: success on the merits. So, of course, you know, if
Speaker 1: the justices were convinced there was no chance the government's
Speaker 1: gonna win, there shouldn't be a stay at all. But
Speaker 1: even in cases where there's a majority of justices who
Speaker 1: do believe that the government has a likeli to success
Speaker 1: on the merits, that's not supposed to be conclusive. That
Speaker 1: is to say, even then, that's supposed to be balanced
Speaker 1: against just exactly what the harm is, either to the
Speaker 1: government from putting this policy on hold pending these appeals,
Speaker 1: or to those who the policy effects by allowing the
Speaker 1: policy to go into effect pending the appeals. And you know, Jude,
Speaker 1: I think the frustrating trend that Justice so to Mayor,
Speaker 1: was planting without in her descent that I've actually written
Speaker 1: about it some length. The trend is that there's a
Speaker 1: majority of the Court that now it seems to just
Speaker 1: be increasingly indifferent to what we call balancing of the
Speaker 1: equities to contrasting the harm to the government on the
Speaker 1: one hand with the harm to the public where the
Speaker 1: harm to those affected by these policies has just about
Speaker 1: dropped out of the calculus. And if you drop that
Speaker 1: out of the calculus, June, then yeah, this really does
Speaker 1: become increasingly just a question of whether five or more
Speaker 1: justices believe that when push comes to shove, the government's
Speaker 1: gonna win. The Supreme Court is the last word, and
Speaker 1: usually it lets novel issues percolate, a word we usually
Speaker 1: hear with respect to this in the lower courts before
Speaker 1: it even considers a novel issue. And that's something she
Speaker 1: also addresses. So give us a little bit of the
Speaker 1: context of what she said. Yeah, I mean, you know,
Speaker 1: this is a court that lately has been very insistent
Speaker 1: as the court like say that it's a court of
Speaker 1: review not first view. That's on shows up eleven different
Speaker 1: times last term alone, and so historically what that's meant, June,
Speaker 1: is that this is a court that's been very reluctant
Speaker 1: to grant stays, where stays really are the exception not
Speaker 1: the rule um And to that end, I mean, if
Speaker 1: you look at the practice during the George W. Bush
Speaker 1: administration all eight years and the obadministration all the years,
Speaker 1: you combine those two very different administrations, the government only
Speaker 1: sought a stay from the Supreme Court of a lower
Speaker 1: court decision a total of eight times in those sixteen years.
Speaker 1: Contrast that with the first three years of the Trump administration,
Speaker 1: where the government has sought twenty four stays um, including
Speaker 1: ten during the October term alone. So part of I
Speaker 1: think what Justice stud of myor is complaining about is
Speaker 1: not just that the government has become so much more
Speaker 1: willing to seek this kind of relief from the Supreme Court,
Speaker 1: but that the majority, you know, even in the cases
Speaker 1: where the majority has refused to grant the relief, there's
Speaker 1: been no expression from the majority that this uptick is inappropriate,
Speaker 1: that this listener general is taking advantage of the court
Speaker 1: in some respect. And so that's why I think Justice
Speaker 1: is rightly concerned that this has becoming the new normal
Speaker 1: where any time the government is subject to any injunction
Speaker 1: nationwide or not of any policy, no matter how controversial,
Speaker 1: no matter how debatable, it runs to the Supreme Court
Speaker 1: and is able to get a stay while the litigation
Speaker 1: challenging that policy, which ultimately might succeed, goes forward. Many
Speaker 1: of President Trump's victories at the Supreme Court so far
Speaker 1: have been temporary, the Supreme Court granting emergency relief to
Speaker 1: the government by blocking the orders of lower courts until
Speaker 1: legal challenges can go through the normal appeals process, and
Speaker 1: so allowing the Trump administration to implement its policies. Last Friday,
Speaker 1: in a dissent, Justice Sonya Soto Mayor called the Conservative
Speaker 1: justices on this pattern. I've been talking to Professor Stephen
Speaker 1: Vladdock of the University of Texas Law School. Steve, you
Speaker 1: researched and wrote a paper on this before the Soda
Speaker 1: Mayor descent. In fact, she cited that paper in a
Speaker 1: prior dissent. Why did you decide to research this topic, June.
Speaker 1: I think those of us who watched the court carefully
Speaker 1: and closely, I think had sort of anecdotal senses that
Speaker 1: there was an uptick in what the Solicitor General was doing,
Speaker 1: and you know, so I thought it might be worth
Speaker 1: trying to convert the anecdotes into data. So I started
Speaker 1: first by, you know, trying to compile a list of
Speaker 1: all of the times Trump administration had tried to basically
Speaker 1: jump the queue since it came into office. And then
Speaker 1: I went back and tried to contrast that with you know, however,
Speaker 1: much data was available, but the best data really dates
Speaker 1: only from two thousand onwards. So that's why I focused
Speaker 1: on the Bush and Obama administrations. And you know, the
Speaker 1: more work I did June, the more the data seemed
Speaker 1: to be quite striking in the contrast between the paucity
Speaker 1: of these instances during the prior two administrations, you know,
Speaker 1: across a very different ideological valences with what's been going
Speaker 1: on lately. And so then I sort of said, well,
Speaker 1: you know, let's try to figure out why is this happening.
Speaker 1: You know, A common complaint, a common sort of critiqua
Speaker 1: common defense of this new aggressiveness on the s g
Speaker 1: S part is that President Trump has been subject to
Speaker 1: an unprecedented number of nationwide injunctions. That's true descriptively, but
Speaker 1: that's not really what's going on in the Supreme Court.
Speaker 1: I mean, as last Friday's order helps the underscore, many
Speaker 1: of these cases actually are not nationwide injunctions. And that's
Speaker 1: why I think we have to be careful to be
Speaker 1: nuanced about this and not just sort of jump at
Speaker 1: the superficial headlines like I think too many people have
Speaker 1: these days. So, Steve, we've been talking about the number
Speaker 1: of requests from the Trump administration for stays from lower
Speaker 1: court orders. Do you know how many they've actually won?
Speaker 1: I did look at the success rate, So there have been,
Speaker 1: as I said, twenty four different applications from the Trump
Speaker 1: administration for stays, Counting last Friday's ruling in the public
Speaker 1: charge case. This is now the eleventh that was granted
Speaker 1: in full. Another three have been granted in part in
Speaker 1: the travel damp cases. So that's fourteen where at least
Speaker 1: part of the lower court decision has been stayed, Three
Speaker 1: were withdrawn by the government because circumstances changed while the
Speaker 1: application was pending, and then seven have been denied. So
Speaker 1: it's a good batting average for this listener generals, not
Speaker 1: a perfect batting average. But I think the real key
Speaker 1: here is that the grants have tended to be in
Speaker 1: these close divisive contexts, where like Lass Friday, the votes
Speaker 1: were often five to four June. If you go back
Speaker 1: and look at the sixteen years of the Bush and
Speaker 1: Obama administrations, not one of the eight stay requests from
Speaker 1: the Bush Obama's Listeners General were met with a five
Speaker 1: to four vote in either direction. And indeed, of the
Speaker 1: eight requests, only one provoked any dissents. So it's not
Speaker 1: just the volume that's increased, and it's not just that
Speaker 1: the Court is acquiescing in these requests more often. It's
Speaker 1: also that they've become much more ideologically charged and politically divisive.
Speaker 1: And I think that's a lot of what Justice said
Speaker 1: a Mayor was reacting to, not just in her descent
Speaker 1: on Friday, but in her descent last September in the
Speaker 1: second Asylum band case, where she leveled similar charges against
Speaker 1: the majority. If there is even this appearance that the
Speaker 1: Supreme Court is bending the rules for the Trump administration,
Speaker 1: does it surprise you that Justice Roberts is still voting
Speaker 1: with the conservatives in these matters? So I mean I
Speaker 1: should say, you know, the Chief Justice had actually joined
Speaker 1: the liberals in a couple of these, so you know,
Speaker 1: two of the ones that the Trump administration has lost,
Speaker 1: the Chief was one of the key votes with the
Speaker 1: with the lefties. But um, you know, I think again
Speaker 1: we have to separate Chief Justice Roberts the institutionalist from
Speaker 1: Chief Justice Roberts the lawyer. John Roberts is actually one
Speaker 1: of the leading jurists with regard to the subtle doctrinal
Speaker 1: trend that I think is behind this shift, where you know,
Speaker 1: he saims that the government is irreparably harmed any time
Speaker 1: a statute is enjoined or a policy is enjoyed without
Speaker 1: ard to the conflicting impact on the public. So I
Speaker 1: think on the merits he actually is perhaps leading the
Speaker 1: charge in this respect. But and this is a point
Speaker 1: I try to make in the paper. I think it
Speaker 1: would behoove him and the Court to actually say what's
Speaker 1: going on, because otherwise you do have the specter of
Speaker 1: partisan political bias as opposed to a doctrinal shift that June.
Speaker 1: I don't think it is ultimately correct, but is at
Speaker 1: least something that could be defended on nonpartisan, non ideological terms,
Speaker 1: where if a majority of the Court issues an opinion
Speaker 1: setting out a new standard for stay applications when the
Speaker 1: government is the complaining party, presumably that standard will be
Speaker 1: good for the next administration too. And the longer that
Speaker 1: this goes on without the Court saying anything, and the
Speaker 1: longer that there's no explication and no explanation of why
Speaker 1: there's such a disconnect between the lower courts and the
Speaker 1: Supreme Court on this technical the critical question of when
Speaker 1: the government's title to emergency relief, I think the more
Speaker 1: the Court is open to the very kinds of partisan
Speaker 1: bias charges that we've seen after in light of Friday's ruling,
Speaker 1: President Trump asked for the recusal of not only Justice Sodamayor,
Speaker 1: but also of Justice Ruth Bader Ginsburg for a comment
Speaker 1: that she made about him when he was running in
Speaker 1: Does the Supreme Court have any rules for when the
Speaker 1: justices should recuse themselves? Yes, and no. I mean, the
Speaker 1: Supreme Court is the only federal court that's not bound
Speaker 1: by the relevant Federal Statute USC Section. You know, the
Speaker 1: justices do have their own sort of internal I guess
Speaker 1: norms is probably better than rules about recusal. And every
Speaker 1: once in a while you'll see a justice write a
Speaker 1: short opinion to explain why they either did or did
Speaker 1: not choose to recuse in a particular case. But you know,
Speaker 1: this is a subject on which the justices keep their
Speaker 1: own company. And frankly, I mean, I think the President's
Speaker 1: comments are rather wide of the mark. I mean, I
Speaker 1: think there are context in which we ought to be
Speaker 1: asking serious questions about whether the justices are hopelessly and
Speaker 1: irrevocably prejudiced in favor of or against the particular party.
Speaker 1: But if we started requiring the justices to recuse in
Speaker 1: any case in which we all had concerns that their
Speaker 1: minds are made up, we wouldn't have a court for
Speaker 1: very long, and we wouldn't have justices to hear most
Speaker 1: of these cases. So, you know, I think the recusal
Speaker 1: conversation is really typical Trump in effort to rile up
Speaker 1: the base, but not in especially serious legal charge. So
Speaker 1: then you're saying that there are no reasons for so
Speaker 1: to Mayor or Ginsburg to recuse themselves in Trump cases.
Speaker 1: I mean, so first I should say I think these
Speaker 1: are very separate cases. I mean, the argument, apparently for
Speaker 1: some do Mariorit to recuse herself is because of something
Speaker 1: she never actually said, which is the Fox News version
Speaker 1: of her descent from Friday, that she accused the majority
Speaker 1: of pro Trump bias. Never says that doesn't accuse him
Speaker 1: of that, And in any event, it's in an opinion.
Speaker 1: I actually think there's a stronger argument about some of
Speaker 1: the public comments that Justice Ginsburg has made about the President.
Speaker 1: But she's apologized for them, and she has I think
Speaker 1: expressed regret at making them, And I do think we
Speaker 1: ought to be careful to distinguish between the propriety of
Speaker 1: the justices speaking out publicly about politicians, individuals in the news,
Speaker 1: cases in the news, etcetera, versus what they write in
Speaker 1: their job as justices, in their opinions. The notion that
Speaker 1: justice should ever be asked to recuse because they write
Speaker 1: a dissent where they are concerned that the majority is
Speaker 1: tipping the scales in favor of an institutional litigant. I
Speaker 1: think it is a pretty dangerous path to go down,
Speaker 1: and why I would treat the Soda my Organs Row
Speaker 1: cases very differently. I don't think either of them have
Speaker 1: any need to recuse, but I think the Soda mir
Speaker 1: case is almost frivolous. Thinking back to Justice aunt And
Speaker 1: in Scalia, he wrote quite a few dissents that were fiery.
Speaker 1: That's right, I mean, I think folks should be careful
Speaker 1: about what they wish for here. This is all happening
Speaker 1: at the same time as we are seeing reports in
Speaker 1: the news that Jenny Thomas, the wife of Justice Thomas,
Speaker 1: has been directly involved in efforts by the White House
Speaker 1: to purge the executive branch of employees who are not
Speaker 1: sufficiently loyal to the President. I don't think that's the
Speaker 1: reason why anyone should ask Justice Thomas to recuse from
Speaker 1: cases involving Trump. But this is a dangerous road to
Speaker 1: go down when you've got a Supreme Court of nine
Speaker 1: justices with no backups. You know, in the lower courts,
Speaker 1: if the judge accuses, there are plenty of other judges
Speaker 1: to take their place. That's not true for the Supreme Court.
Speaker 1: And I think that really helps to underscore why the
Speaker 1: recusal conversation is often simply about messaging and not really
Speaker 1: substantive concerns that the justices are somehow more or less
Speaker 1: able to discharge their duties in particular cases. And finally,
Speaker 1: the Philadelphia Bar Association has come out in a statement
Speaker 1: condemning recent unwarranted attacks on the rule of law and
Speaker 1: judicial independence, and Chief Justice roberts In came back with
Speaker 1: a surprising comment when Trump called a judge who ruled
Speaker 1: against an administration policy and Obama judge, we haven't heard
Speaker 1: anything from either Chief Justice roberts or Justice Sonya. So
Speaker 1: to Mayor, doesn't this call for a word from the Chief.
Speaker 1: It certainly doesn't call for a words from justice of
Speaker 1: my arm just a of my ors who just keep
Speaker 1: doing her job and keep her head down and let
Speaker 1: people defend her. I was heartened by his statement. Um.
Speaker 1: I think it was a very deliberate and calculated statement
Speaker 1: on the Chief's part. I've been surprised at how little
Speaker 1: he has said since June, and I think, you know,
Speaker 1: we saw some of that during the impeachment trial in
Speaker 1: the Senate. You know, the one time the Chief chose
Speaker 1: to sort of speak up was to chastise both sides
Speaker 1: for their lack of decorum. I think it would be
Speaker 1: helpful to have the Chief, if not the entire court
Speaker 1: somehow pushed back against these attacks on, for example, Judge
Speaker 1: Jackson in the Roger Stone case. But you know, the
Speaker 1: silence here, I think is understandable because this is not
Speaker 1: something that Chief wants to be doing. I just think
Speaker 1: it is increasingly unfortunate because it is I think suggesting,
Speaker 1: perhaps incorrectly, that the President that he faces no consequences
Speaker 1: for publicly seeking to vilify judges who just happened to
Speaker 1: rule against him and for trying to basically bully judges
Speaker 1: into doing his bidding. And June in that respect, I
Speaker 1: don't think it's a coincidence that the President you know,
Speaker 1: is on this campaign against justice. So domior in ginsburg
Speaker 1: Um with less than a month before the Supreme Court
Speaker 1: is going to hear the three cases about his financial record.
Speaker 1: Thanks so much for being on Bloomberg Lass Steve. That's
Speaker 1: Stephen Laddick, a professor at the University of Texas Law School.
Speaker 1: I'm June Grosso and this is Bloomberg