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Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio.

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Speaker 1: Justice Amy Coney Barrett, the newest Supreme Court justice, joined

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Speaker 1: three liberal colleagues in an opinion that said Alabama can't

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Speaker 1: execute a convicted murderer unless he can have his pastor

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Speaker 1: by his side. The court's latest action blocked the state

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Speaker 1: from executing Willie B. Smith, the third for a murder

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Speaker 1: in the state, will need to reschedule his execution. This

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Speaker 1: decision came less than a week after Barrett took a

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Speaker 1: somewhat nuance stance on California's COVID nineteen restrictions on religious services,

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Speaker 1: joining me as Jordan Reuben Bloomberg Law editor. So, first

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Speaker 1: of all, why did Alabama want to execute an inmate

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Speaker 1: without his pastor in the chamber? Prison officials claimed it

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Speaker 1: was for security reasons. We've seen that in a number

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Speaker 1: of states across the country, giving rise to be claims

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Speaker 1: from inmates saying that those concerns shouldn't override what they're saying.

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Speaker 1: Are there religious rights to have their spiritual advisors with them?

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Speaker 1: And what happened at the court below. So the corporlow

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Speaker 1: the US Court of Appeals for the eleventh Circuit sided

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Speaker 1: with the inmates Smith, saying that the state could not

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Speaker 1: execute him without having his pastors in the chamber. And

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Speaker 1: that's what led the state to an appeal to the

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Speaker 1: Supreme Court to try and get that injunction lifted so

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Speaker 1: they could execute Smith without his pastors in the chamber.

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Speaker 1: So now Justice Barrett voted with the three liberal justices

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Speaker 1: who wrote the opinion in what did it say? This

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Speaker 1: was an opinion by Justice Kagan, and as he mentioned,

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Speaker 1: it was joined by the other two Democratic appointees as

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Speaker 1: well as Justice Barrett. And it said essentially that the

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Speaker 1: state's interest in security, although compelling, as Kagan acknowledged, doesn't

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Speaker 1: override Smith's right on religious grounds to have his pastor

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Speaker 1: with him. The state didn't do enough to prove why

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Speaker 1: it's security interests should overlie that religious interest. And now

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Speaker 1: who was the fifth vote to stop the execution. That's

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Speaker 1: a mystery, June. And it brings up another topic that

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Speaker 1: you and I have discussed, the Supreme Courts shadow docket,

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Speaker 1: where the justices do not always explain how they vote,

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Speaker 1: and we saw really an extreme version of that in

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Speaker 1: this instance. Because we know that those four justices sided

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Speaker 1: with Smith, we know that Justices Thomas, Roberts and Kavanaugh

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Speaker 1: noted their dissent, and that leaves Justices Alito and Gorsage.

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Speaker 1: And so what we know is that in order to

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Speaker 1: form a majority, the four justices Barrett and the three

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Speaker 1: Democratic appointees would have needed at least Aldo or Gorsage

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Speaker 1: to be with them. So we know that it was

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Speaker 1: at least one of them. It was possibly both, but

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Speaker 1: we just don't know because those two justices did not

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Speaker 1: indicate one way or the other. And those two justices

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Speaker 1: have been strong supporters of the death penalty. Could it

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Speaker 1: be that they didn't want anyone to know their position here?

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Speaker 1: It's possible that they have been two of the strongest

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Speaker 1: justices to rule against in these and for the government

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Speaker 1: and death penalty cases. There there are also two justices

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Speaker 1: who voted strongly in favor of religious rights against other

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Speaker 1: rights that have come into play, And so we just

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Speaker 1: don't know. And so I don't necessarily assume that it

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Speaker 1: was not both of them that voted with the majority.

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Speaker 1: But because they didn't tell us, that just leaves really

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Speaker 1: unnecessary speculation. There's no reason why they can't just tell

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Speaker 1: us how they voted, Like the other justices did so

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Speaker 1: tell us about the dissenters. Sure, so we had Justice

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Speaker 1: Thomas who merely noted the fact that he would have

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Speaker 1: granted the state's applications. We didn't say more than that,

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Speaker 1: while Justice is Kavanaugh and Roberts, they would have listed

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Speaker 1: the state's injunction. And it's interesting because all of this

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Speaker 1: in some ways traces back to an idea that Justice

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Speaker 1: Kavanaugh had when this religious advisor issue was previously before

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Speaker 1: the Court. It was actually Justice Kavanaugh who said the

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Speaker 1: states wanted to avoid any issues of favoring one religion

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Speaker 1: over another, they could just simply bar ministers of all

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Speaker 1: faiths from the chamber. And so Texas and Alabama in

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Speaker 1: this case took him up on that offer. That led

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Speaker 1: to this wave of litigation. And so that's a long

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Speaker 1: way of saying that while Kavanaugh and Roberts would have

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Speaker 1: gone along with what the state wanted to do in

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Speaker 1: this instance, the takeaway they said is that states should

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Speaker 1: really find a way to let these executions go forward

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Speaker 1: with spiritual advisors, just so it's not giving rise to

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Speaker 1: this eleventh our litigation coming from either side. And so

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Speaker 1: Kavanaugh Roberts, even though they disagreed. I think Kavanaugh and

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Speaker 1: Roberts understand the interest here, and so I think the

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Speaker 1: point is they just don't want to see any more

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Speaker 1: of this litigation, which they deem to be unnecessary. So

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Speaker 1: now it appears that there are at least five votes,

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Speaker 1: so that people on death row who want a spiritual

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Speaker 1: advisor have to get a spiritual advisor. I think that's right,

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Speaker 1: and possibly more than five votes. I should say that

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Speaker 1: there's potentially nuanced depending on what grounds of religious freedom

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Speaker 1: inmates are reason they're playing. There are different parts of

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Speaker 1: the First Amendment. There's a statute that was relevant in

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Speaker 1: this case, which different justices could have different opinions on.

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Speaker 1: But broadly speaking, what we've seen in the last few

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Speaker 1: years from a court that really has declined to side

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Speaker 1: with death row inmates on pretty much any ground, this

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Speaker 1: ground of religious advisor is really the only one that's

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Speaker 1: been winning as far as it goes for inmates, and

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Speaker 1: so I think that's safe to say that it's unlikely

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Speaker 1: that an inmate is going to be executed without their

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Speaker 1: religious advisor, barring some type of circumstances that we haven't

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Speaker 1: seen yet over the last few years. Jordan's so There

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Speaker 1: have been several controversial cases involving death row inmates having

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Speaker 1: a religious advisor with them in the chamber when they're executed.

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Speaker 1: One involved a Muslim inmate, another a Buddhist inmate. Tell

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Speaker 1: us about them sure, And so in Alabama, this was

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Speaker 1: another case from Alabama that really set all these this off.

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Speaker 1: There was a death row inmate. This was back in

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Speaker 1: a man named Dominique Gray, and he was executed without

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Speaker 1: his mom in the chamber. And this was after the

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Speaker 1: Supreme Court said that he was not entitled to that,

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Speaker 1: and that really caused an outrage and a bipartisan outrage

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Speaker 1: at that. And I think in some ways the court

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Speaker 1: might have thought that had had some egg on its face,

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Speaker 1: and then it reversed course in a sense. And so

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Speaker 1: that's still lends itself to criticism from some circles that

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Speaker 1: it only ruled against that man because he was Muslim,

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Speaker 1: when the court had gone on to a world more

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Speaker 1: favorably in favor of other religions. And so regardless of that,

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Speaker 1: what we've seen since that Alabama case and the outrage

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Speaker 1: that it sparked, is that the Court has changed course

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Speaker 1: and has decided on different grounds in different cases with

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Speaker 1: different justices indicating that they're voting one way or the other,

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Speaker 1: but that on the whole, the court is saying, we

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Speaker 1: don't want these executing inmates without religious advisors with them.

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Speaker 1: So now Justice Barrett is getting some attention because of

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Speaker 1: this decision, because she joined with the liberals, and it's

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Speaker 1: the second time in less than a week that she

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Speaker 1: has not joined with her most conservative colleagues. That's right,

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Speaker 1: and so I think in some ways it's tough to

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Speaker 1: tell a lot from just a couple of data points.

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Speaker 1: But one thing that it does show is that for

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Speaker 1: people heading into Justice Barrett's confirmation who were worried this

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Speaker 1: is going to be a six three lockstep court on

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Speaker 1: every issue, what we learned is that at least that's

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Speaker 1: not the case now. In these recent cases, these have

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Speaker 1: been decisions that aren't necessarily going to change the course

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Speaker 1: of a law. Take this death row case that we're

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Speaker 1: talking about. All that's happening here is that this man

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Speaker 1: can have his pastor with him when he's executed. There's

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Speaker 1: no question of whether he's still going to be executed.

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Speaker 1: In a recent case on COVID nineteen where Barrett didn't

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Speaker 1: join with all of the other Republican appointees. It was

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Speaker 1: to take sort of a more not moderate approach in

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Speaker 1: terms of how a church could reopen, but to be

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Speaker 1: clear that it could reopen and allow people in. And

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Speaker 1: so it's certainly no way of saying that Justice Barrett

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Speaker 1: is emerging as some type of liberal. Really all saying

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Speaker 1: is that the Court is not going to be a

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Speaker 1: six three monolith in every case. And it's interesting that

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Speaker 1: both these cases that we're talking about involved religious rights,

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Speaker 1: for sure, and so one way to look at it

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Speaker 1: is that this definitalty case isn't really a defenseity case.

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Speaker 1: It's a religion case. And so it's really a consistency

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Speaker 1: on Justice Barrett's part. Arguably if you look at her decisions,

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Speaker 1: that she's consistently citing in favor of religion, whereas perhaps

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Speaker 1: other justices have been inconsistent on those grounds. And so

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Speaker 1: that is another takeaway that we have from these recent

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Speaker 1: decisions from Justice Barrett, and maybe other justices like Alito

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Speaker 1: and Gorseitch are doing the same, but they did not

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Speaker 1: find it fit to tell us how they voted in

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Speaker 1: this case. We're less speculating as to them. In a

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Speaker 1: normal case, you get to see how all the justices vote.

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Speaker 1: But in this case, you didn't explain again why they're

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Speaker 1: allowed to sort of conceal their opinions. Well as with

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Speaker 1: pretty much everything else about the Supreme Court, they're allowed

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Speaker 1: to do it because they're in charge and there's no

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Speaker 1: interglactic Supreme Court that people can appeal to. This is

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Speaker 1: simply how the Justices have decided is a reasonable way

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Speaker 1: to operate when these emergency applications come up. They have

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Speaker 1: to rule one way or the other. They have to

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Speaker 1: make an order one way or the other. But they've

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Speaker 1: seen it fit to say that it's not vowed to

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Speaker 1: the public to say how they voted in a given case.

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Speaker 1: And these are cases that can be just as important,

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Speaker 1: if not sometimes more important, than cases that are argued

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Speaker 1: injustice is right, lengthy decisions on the merits. And so,

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Speaker 1: just to be clear, a reason that's been brought up

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Speaker 1: to why they don't do that, it's because this is

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Speaker 1: happening in a very rush nature, and it's happening at

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Speaker 1: the eleventh hour. Ands some have said that that's the

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Speaker 1: reason why they don't do it. Of course, there's a

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Speaker 1: reason in their head when they make a decision one

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Speaker 1: way or the other. And so I don't think it

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Speaker 1: would necessarily have to be a lengthy decision, but it

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Speaker 1: would be helpful if there was some even short decision

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Speaker 1: or at least say which way you voted. That seems

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Speaker 1: like it would be a reasonable course to me. I

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Speaker 1: like the intergalactic Supreme Court, and they have to borrow that.

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Speaker 1: So there's a very controversial case involving religious rights that

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Speaker 1: the Supreme Court heard arguments on but hasn't made a

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Speaker 1: decision in that case might be illuminating, and it involves

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Speaker 1: a clash between religious rights and gay rights. Tell us

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Speaker 1: a little bit about it. Sure that case is bolted

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Speaker 1: against City of Philadelphia. As you mentioned, it is in

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Speaker 1: some ways a clash between religious rights and gay rights.

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Speaker 1: There's Catholic Social Services which is seeking to not have

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Speaker 1: to work with same sex couples on the grounds that

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Speaker 1: it would violate its religious rights. And so this is

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Speaker 1: another example of the case similar in some ways going

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Speaker 1: back to the Court's Masterpiece cake Shop case that some

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Speaker 1: of us may remember about the baker who did not

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Speaker 1: want to bake a cake for a same sex couple.

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Speaker 1: That is being argued on religious grounds, people saying they

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Speaker 1: shouldn't have to do things because of their religion. But

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Speaker 1: an effect of the decision if it does go in

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Speaker 1: the religious grounds favors that it could have potential adverse

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Speaker 1: effects for lgbt Q rights. Thanks for being on the

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Speaker 1: Bloomberg Law Show. Jordan's that's Jordan Reuben, Bloomberg Law Editor.

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Speaker 1: Progressives want bold steps like expanding the Supreme Court, but

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Speaker 1: a Bible Horris and commission appointed by President Joe Biden

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Speaker 1: is more likely to recommend changes like allowing cameras in

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Speaker 1: the courts, establishing term limits for Supreme Court justices, or

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Speaker 1: slowly adding lower Court judges. Joining me as Madison Alder

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Speaker 1: Bloomberg Law reporter, so medisine tell us about this commission.

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Speaker 1: So this by person commission was something that Biden suggested

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Speaker 1: on the campaign trail amid really intense pressure from progressive

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Speaker 1: groups to expand size the Supreme Court. And those calls came,

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Speaker 1: of course, after the passing of Justice was Lader Ginsberg

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Speaker 1: and Trump's nomination of Amy Coney Garrett to the High Court.

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Speaker 1: You know, progressive said that Trump had had too much

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Speaker 1: influence over the Supreme Court, uh and they wanted to

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Speaker 1: have some kind of a response in kind, so packing

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Speaker 1: the court has kind of been progressive rallying cry to,

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Speaker 1: you know, have some kind of court reform. Biden suggested

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Speaker 1: this on the campaign for kind of what some people

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Speaker 1: saw as the dodge of answering the question directly of

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Speaker 1: would he expand the size of the Supreme Court. He

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Speaker 1: said he would study court reforms. He even mentioned that there,

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Speaker 1: you know, this isn't necessarily about court packing, it's it

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Speaker 1: could go beyond that. So he kind of gave an

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Speaker 1: indication there that it wouldn't be about court packing. But

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Speaker 1: now that that commission is is starting to take shape

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Speaker 1: and ideas are swirling as far as what the commission

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Speaker 1: could actually address tell us who has already been appointed

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Speaker 1: to the commission. So there's been a couple of people

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Speaker 1: that the White House is confirmed UM that have been

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Speaker 1: added to the commission. So Bob Bowler, who is a

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Speaker 1: buiding campaign lawyer who served as White House counsel for

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Speaker 1: President Barack Obama, and Christina Rodriguez to the Yale Law

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Speaker 1: professor and was senior Justice Department official under Obama UM.

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Speaker 1: And then two others have been reported by Politico that

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Speaker 1: is the American Constitution Society's former President Caroline Patterson and

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Speaker 1: a Bush Justice part beneficial Jack Oldsmith. So those are

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Speaker 1: some of the names that are floating out there right now.

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Speaker 1: It's not the end of the line for how many

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Speaker 1: people would be appointed this commission. Probably see more soon,

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Speaker 1: but it is kind of what started this conversation again

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Speaker 1: around the commission now that we have some of its membership.

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Speaker 1: So these are sort of moderate voices. Are there any

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Speaker 1: more intense voices, let's say from Demand Justice or one

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Speaker 1: of the progressive court organizations, So they haven't been added

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Speaker 1: to the commission yet, but those groups are are certainly

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Speaker 1: looking at this list. And you know, smographics see the

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Speaker 1: edition of someone like Jack Goldsmith, who who you know

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Speaker 1: was part of the Bush administration. Um, you know, as

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Speaker 1: really not great for their cause for adding seat to

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Speaker 1: deciffient court. Um. You know. I I spoke to a

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Speaker 1: professor who told me that this really will be more

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Speaker 1: of a moderate commission be seen that if they come

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Speaker 1: up with well, we'll kind of have to be moderate.

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Speaker 1: And uh, you know, many of the professors that I

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Speaker 1: spoke to for for my story that look at this

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Speaker 1: area said that it really won't be about court packing,

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Speaker 1: and they're going to have to look at different issues

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Speaker 1: where they might be able to get you know, someone

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Speaker 1: like a former American Constitution Society president and someone like

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Speaker 1: Jack Gold's best on board. Even from the start, it

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Speaker 1: seems like this is not going to be something that

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Speaker 1: will satisfy the progressive that are trying to push Biden right.

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Speaker 1: You know, I suppoke to Noah Sealman, who is a

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Speaker 1: professor at Harvard Law School, and he said it was

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Speaker 1: really designed that way. Um, if you're going to make

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Speaker 1: a bipartisan commission, he said that, you know, by definition,

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Speaker 1: it really can't recommend something that fits the progressive agenda.

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Speaker 1: But that doesn't mean there aren't other issues that that

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Speaker 1: can mentioned could look at. They do have bipartisan support.

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Speaker 1: One of those issues is lower court expansion, which is

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Speaker 1: something that has been talked about but really Congress is

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Speaker 1: not addressed for uh, you know, the last several years,

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Speaker 1: last time of Pelot courts. Uh, we're you know expanded

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Speaker 1: and seeper added to the Pelt courts within nineteen nine,

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Speaker 1: and the Judicial Conference in twenty nineteen requested sixty five

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Speaker 1: neutral court judges. Um and in several additions to the

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Speaker 1: Ninth Circuit as well. Um, they're they're expected to updade

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Speaker 1: those recommendations soon. UM. It's something that you know, there

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Speaker 1: have been by Veterican bills introducing congressivis but just really

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Speaker 1: hasn't gained traction. So that is something that the Commission

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Speaker 1: could potentially look at that could have some bipartisan interests,

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Speaker 1: though it should that it wouldn't expand the lower courts immediately. UM.

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Speaker 1: Typically these bills will uh add seats throughout different presidential administration.

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Speaker 1: So UM, I think we can expect a bill in

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Speaker 1: this Congress especially to do the same, to to really

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Speaker 1: uh add the seats over each four year cycle for

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Speaker 1: you know, the next several years. I was going to

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Speaker 1: say that will Republicans oppose it if all of a

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Speaker 1: sudden Joe Biden gets a chance to appoint so many

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Speaker 1: appellate judges on the Ninth Circuit for example, and trial judges.

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Speaker 1: But so you're saying it would be sort of spaced in, right,

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Speaker 1: This would be something that would likely be faced in

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Speaker 1: Biden might get a few judges in a proposal like that.

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Speaker 1: But UM, bills that have added judges to the lower

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Speaker 1: courts in the past have done that kind of uh

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Speaker 1: format where they will add judge ships, uh for different

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Speaker 1: presidential administrations, and even you know former some of Judiciary

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Speaker 1: Committee Cheirman Lindsay Graham during the last Congress suggested adding

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Speaker 1: judge ships to the lower court before the elections, you know,

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Speaker 1: so it wouldn't be political obviously that that ship is sailed,

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Speaker 1: and Congress will need to consider maybe adding more judge

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Speaker 1: ships in four years. UM, maybe adding a few in

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Speaker 1: the meantime, But that is something that the Commission could

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Speaker 1: definitely look at that It is an issue to have

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Speaker 1: gotten bipartisan and jos in the past. Might they consider

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Speaker 1: term limits for Supreme Court justices if not packing the court?

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Speaker 1: Some term limits are another issue that has had bipartisan interests,

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Speaker 1: including from some pretty prominent folks on on on both

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Speaker 1: sides of this issue. So UM. Stephen Calbrusi, who is

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Speaker 1: one of the founders of the Federal Society, has written

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Speaker 1: about this over the years and into justed eighteen year

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Speaker 1: term limits for Supreme Court justices to kind of get

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Speaker 1: away from the political nature of of the court and

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Speaker 1: also having to worry about the health issues of the

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Speaker 1: justices and whether or not they're going to step down

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Speaker 1: or or or pass away. UM and that's thing that

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Speaker 1: that people on the left have also looked at, including

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Speaker 1: m one of the potential members of this committee, Caroline Frederickson,

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Speaker 1: who seemed to support this and in August of last year, UM,

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Speaker 1: and she was on a panel for the Center for

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Speaker 1: American Progress and talking about term limits and said that

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Speaker 1: she was inclined to agree with with cal Greasy and UM,

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Speaker 1: there are benefits to the term limits. So it's definitely

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Speaker 1: something that that the Commission could take a look at. UM,

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Speaker 1: though it remains to be seen if if Biden would

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Speaker 1: be on board. As you know, he has kind of

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Speaker 1: UM it seems to seem to oppose the idea of

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Speaker 1: turn limits for for Supreme Court justices, so UM, they

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Speaker 1: have to convince him to get on board with that

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Speaker 1: idea as well. Now, cameras in the courts. Almost every

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Speaker 1: time that I can recall Supreme Court justice confirmation hearings,

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Speaker 1: there ask questions about cameras at the Supreme Court, and

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Speaker 1: they seem open to it until they get on the bench.

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Speaker 1: What about cameras in the courts outside of the Supreme Court.

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Speaker 1: The last things the Commission could do would be to

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Speaker 1: look at some of these issues like cameras in the

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Speaker 1: court that uh, you know, are kind of around the margins.

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Speaker 1: They're not major, major court reforms, but there are issues

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Speaker 1: that have had by partisan interest in Congress and and

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Speaker 1: just you know, really haven't gotten any traction. They haven't

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Speaker 1: gone anywhere. UM. One of those obviously cameras in the courts. UM.

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Speaker 1: Senators Patrick Lahey and Chuck Rasslie, who are both former

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Speaker 1: chairman of the Senate Judiciary Committee, have supported this issue

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Speaker 1: over the years, adding cameras in the courts, adding access

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Speaker 1: UM so the public can can engage in in UM

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Speaker 1: some of these really important oral arguments. And UM. Then

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Speaker 1: there are other issues like, uh, you know, ethics reforms

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Speaker 1: for for the Supreme Court, uh and you know, potentially

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Speaker 1: updating things like the Code of Conduct to to make

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Speaker 1: sure that that justice is have the same kind of

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Speaker 1: ethics requirements as as the other two pranchitions of government.

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Speaker 1: And those the things that UM continue to get by

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Speaker 1: partners in support. So those are some of the other

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Speaker 1: things around the margins. I think that the that the

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Speaker 1: Commission could look at, UM if it if it is

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Speaker 1: by partisans. We've discussed so many times how Trump transformed

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Speaker 1: the judiciary making it much more conservative what does Biden

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Speaker 1: intend to do? What's his intention as far as judicial appointments.

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Speaker 1: So Biden has really grown up with judicial appointments as

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Speaker 1: a lawmaker. I mean, he was a chairman of the

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Speaker 1: Senate Juiciary Committee and a member for many years. So

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Speaker 1: a lot of his work and a lot of what

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Speaker 1: he did in Congress involved the confirmation of Supreme Court

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Speaker 1: justices and liver Court judges. Is he he's very familiar

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Speaker 1: with this issue in a way that a lot of

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Speaker 1: previous presidents aren't, and that also has has drawn a

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Speaker 1: lot of attention to what he might do on this issue.

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Speaker 1: He has so far indicated kind of an aggressive is

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Speaker 1: push for adding judges and nominating judges. His White House

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Speaker 1: Chief Council of Data remis and a letter to Democratic

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Speaker 1: senators during the transition asking them to send in their

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Speaker 1: recommendations for federal judge ships. Within things was just over

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Speaker 1: a month of a federal judge ship becoming vacant, or

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Speaker 1: if they already had vacancy, if they wanted them the

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Speaker 1: day before in noguration, So they're they're kind of signaling

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Speaker 1: that they're going to be looking at this issue. We

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Speaker 1: haven't seen any nominations from Biden yet, but it seems

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Speaker 1: to be pretty standard to focus on things like cabinet

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Speaker 1: appointments first and then to move on to judges. It's

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Speaker 1: definitely something that that I'm watching, and I know many

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Speaker 1: others are watching to see exactly how aggressive this administration

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Speaker 1: is on on judicial nomination. Thanks Madison. That's Bloomberg Law

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Speaker 1: reporter Madison Alder, And that's it for this edition of

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Speaker 1: the Bloomberg Law Show. Remember you can always get to

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Speaker 1: late its legal news on our Bloomberg Lamp podcast. I'm

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Speaker 1: June Grosso, and you're listening to Bloomberg