WEBVTT - Former Solicitor General Garre on New SCOTUS Term 0:00:00.560 --> 0:00:05.360 This is Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:06.200 --> 0:00:11.240 Oh yea, oh yea, oh yea. All persons having business 0:00:11.320 --> 0:00:14.520 before the Honorable the Supreme Court of the United States 0:00:14.880 --> 0:00:17.479 are admonished to give their attention, for the Court is 0:00:17.520 --> 0:00:21.320 now sitting. Ever faithful to tradition, the Supreme Court began 0:00:21.360 --> 0:00:24.360 its term on the first Monday in October with only 0:00:24.440 --> 0:00:28.800 eight justices and seemingly oblivious to the upcoming battle over 0:00:28.840 --> 0:00:32.640 the controversial nomination of a new justice. The terms docket 0:00:32.680 --> 0:00:36.480 already includes a number of significant cases, perhaps the most 0:00:36.520 --> 0:00:40.839 consequential being the challenge to Obamacare. The docket covers a 0:00:40.880 --> 0:00:45.839 wide spectrum of issues, religious rights, gay rights, federal agency powers, 0:00:46.040 --> 0:00:50.159 voting rights, robotexting, and even a suit over looted Nazi art, 0:00:50.280 --> 0:00:53.000 just to name a few. Joining me to discuss the 0:00:53.000 --> 0:00:56.280 new term is Gregory gar the global chair of Latham 0:00:56.320 --> 0:00:59.760 and Watkins Supreme Court and Appellate Practice. He served as 0:00:59.760 --> 0:01:02.440 the what do you Force Solicitor General of the United States. 0:01:02.880 --> 0:01:05.399 It's wonderful to have you here. Let's start with the 0:01:05.520 --> 0:01:08.839 challenge to Obamacare, which is coming up right after the election, 0:01:09.280 --> 0:01:12.640 in which the Trump administration and Republican led states are 0:01:12.760 --> 0:01:16.480 arguing to invalidate the law. The decision below seemed like 0:01:16.560 --> 0:01:20.200 such an outlier, but now the question is will Obamacare 0:01:20.240 --> 0:01:24.960 survives well. I think the challengers face an uphill battle here, 0:01:25.000 --> 0:01:27.520 and I really think what's important to understand about the 0:01:27.520 --> 0:01:30.400 cases there are three separate questions. The first is whether 0:01:30.440 --> 0:01:34.640 the mandate itself is constitutional now that Congress has been 0:01:34.680 --> 0:01:39.000 invalidated to financial penalty associated with it. The second is, 0:01:39.520 --> 0:01:43.000 even if the mandate is unconstitutional, is it severable from 0:01:43.000 --> 0:01:46.360 the Act? And on that there's a strong majority of 0:01:46.400 --> 0:01:51.280 the Court that has seemed reluctant to invalidate acts as 0:01:51.320 --> 0:01:55.640 a whole and instead look for ways to sever the 0:01:55.760 --> 0:01:59.560 unconstitutional provisions and leave as much of the Act in place. 0:01:59.680 --> 0:02:02.400 And so I think that's going to be a challenging 0:02:02.560 --> 0:02:06.600 argument for the challengers here, even if they succeed on 0:02:06.840 --> 0:02:10.560 the argument that the mandate is no longer constitutional given 0:02:10.560 --> 0:02:14.320 that the tax associated with it has been validated. And 0:02:14.360 --> 0:02:16.880 then there's actually a third question which is pretty interesting, 0:02:16.919 --> 0:02:19.920 which is whether or not the challengers here even have 0:02:20.600 --> 0:02:24.680 standing given that the mandate no longer applies to the 0:02:24.720 --> 0:02:29.480 individual plainists and the states themselves aren't directly regulated under 0:02:29.639 --> 0:02:33.360 the Affordable Care Act. There's a major religious rights case 0:02:33.480 --> 0:02:37.280 on the docket where religious rights collide with gay rights. 0:02:37.919 --> 0:02:42.160 The question is whether Catholic Social Services can be excluded 0:02:42.240 --> 0:02:46.519 from Philadelphia's foster care system because it won't place children 0:02:46.520 --> 0:02:49.840 with same sex couples. And this case has already gotten 0:02:49.840 --> 0:02:53.680 a lot of attention the latest class between religion and 0:02:53.880 --> 0:02:57.680 same sex couples or gay rights. And you know, it's interesting, 0:02:57.720 --> 0:02:59.920 I mean, both sides take a quite different view of 0:03:00.000 --> 0:03:02.800 what's going on here. The City of Philadelphia claims that 0:03:02.840 --> 0:03:09.480 it's simply applying its general policy against discrimination, including discrimination 0:03:09.480 --> 0:03:13.880 on the basis of sexual orientation, to the private contractor here, 0:03:13.919 --> 0:03:18.560 which is the Catholic Social Services organization nonprofit organization which 0:03:18.560 --> 0:03:22.480 helps the place children in the city with foster parents 0:03:22.520 --> 0:03:25.280 and declines to do so in the case of foster 0:03:25.400 --> 0:03:28.000 parents who are same sex couples. And so the city 0:03:28.080 --> 0:03:31.359 argues it is just applying that generally applicable and neutral 0:03:31.720 --> 0:03:36.720 principle to this particular organization, and the Catholic Social Services 0:03:36.760 --> 0:03:39.520 and the individual plantiffs claimed that, you know, the city 0:03:39.560 --> 0:03:43.000 really doesn't have a generally applicable policy here, that it 0:03:43.360 --> 0:03:47.560 carves out lots of individual exemptions and has discretion to 0:03:47.600 --> 0:03:50.360 do so with respect to other groups, and it's simply 0:03:50.760 --> 0:03:54.240 declined to do so in permissively here with respect to 0:03:54.280 --> 0:03:57.600 the Catholic Social Services, and so the failure to do 0:03:57.760 --> 0:04:01.800 so to draw an exemption here violates the Catholic Social 0:04:01.840 --> 0:04:05.920 Services free exercise rights. And the case also presents, you know, 0:04:05.960 --> 0:04:09.680 what could be a hugely consequential question, and that the 0:04:09.800 --> 0:04:13.000 petitioners here have asked the Court to reconsider it decision 0:04:13.280 --> 0:04:16.920 and Employment Division versus Smith, And that was the decision 0:04:17.000 --> 0:04:20.520 written by Justice Scalia, which held that the application of 0:04:20.560 --> 0:04:25.240 neutral and generally applicable laws against religiously motivated conduct generally 0:04:25.279 --> 0:04:28.400 does not violate the free exercise rights. The government in 0:04:28.440 --> 0:04:30.479 the United States in this case claims that that the 0:04:30.480 --> 0:04:33.240 Court doesn't have to reconsider Smith, that it can simply 0:04:33.279 --> 0:04:36.760 recognize that the city has carved out these exemptions for 0:04:36.800 --> 0:04:40.320 other groups and so therefore is violating the free exercise 0:04:40.440 --> 0:04:44.040 rights of the Classolic Social Services by not allowing an 0:04:44.040 --> 0:04:46.599 exemption in this case. But the question of whether the 0:04:46.640 --> 0:04:50.960 Court would revisit Employment Division versus Smith is certainly one 0:04:51.000 --> 0:04:55.440 that's important to follow. Another factor here is that the 0:04:55.480 --> 0:05:00.120 Court has been expanding religious liberties. Even last terms. Think 0:05:00.120 --> 0:05:02.840 there were three cases involving religion, and they ended up 0:05:02.880 --> 0:05:05.760 with seven to two or five to four votes in 0:05:05.880 --> 0:05:09.320 favor of expanding religious liberties. So can we expect more 0:05:09.360 --> 0:05:12.120 of that same kind of expansion in this case? I 0:05:12.160 --> 0:05:15.400 think you're absolutely right that we've seen in recent terms 0:05:15.440 --> 0:05:20.680 a court that is more protective of religious liberties. And interestingly, 0:05:21.160 --> 0:05:25.200 even the more liberal justices like Justice Kagan and Justice 0:05:25.200 --> 0:05:30.080 Brier have gone along with the conservative justices in protecting 0:05:30.520 --> 0:05:34.400 religious liberties. So I think that this city here probably 0:05:34.480 --> 0:05:38.640 does face an uphill battle in persuading the Court to 0:05:38.760 --> 0:05:41.960 leave the lower court decision in effact. And the fact 0:05:42.040 --> 0:05:45.760 that the Court agreed to hear this case probably singles 0:05:46.000 --> 0:05:50.039 at least sound concerned with the challenges free exercise clause 0:05:50.160 --> 0:05:54.479 claim here. You may remember a case last term when 0:05:54.480 --> 0:05:57.880 the Supreme Court broadened the federal ban on robocalls to 0:05:57.920 --> 0:06:02.160 mobile phones, with Chief Justice John Roberts opining that no 0:06:02.240 --> 0:06:06.720 one likes robocalls, nobody wants to get robocalls on their 0:06:06.760 --> 0:06:10.880 cell phone. The idea that Congress would embrace that result 0:06:11.279 --> 0:06:16.200 simply to save this government debt collection. Uh, they'd have 0:06:16.279 --> 0:06:21.040 to be very anxious to be more unpopular, uh than 0:06:21.200 --> 0:06:24.440 they otherwise would be. Well, there will be a reprise 0:06:24.480 --> 0:06:29.440 of sorts this term involving Facebook robotexting. I've been talking 0:06:29.440 --> 0:06:32.600 to former US Solicitor General Gregory gar a partner at 0:06:32.640 --> 0:06:36.799 Latham and Watkins, about the Supreme Court's new term. So, Greg, 0:06:36.800 --> 0:06:40.479 this is a class action lawsuit accusing Facebook of sending 0:06:40.680 --> 0:06:44.880 unwanted text messages in violation of federal law. And I 0:06:44.920 --> 0:06:48.480 remember last term during oral arguments that all the justices 0:06:48.560 --> 0:06:54.120 seem to agree that nobody likes robocalls, So what about this? Now, 0:06:54.160 --> 0:06:56.360 this is an interesting case. I mean, I think one 0:06:56.360 --> 0:06:58.360 of the justices referred to as one of the most 0:06:58.440 --> 0:07:02.039 popular laws that Angress has ever passed. But it's also 0:07:02.120 --> 0:07:05.440 popular with planeff floors because we've seen a number of 0:07:05.480 --> 0:07:08.440 class actions that you get a single person who receives 0:07:08.440 --> 0:07:10.800 an unwanted text message, and then all of a sudden, 0:07:10.800 --> 0:07:13.320 you've got sort of a multimillion dollar class action in 0:07:13.600 --> 0:07:16.120 federal court. And the question in this case is sort 0:07:16.120 --> 0:07:19.800 of a very technical statutory question, but is what device 0:07:19.960 --> 0:07:24.720 qualifies as an automatic telephone dialing system? Which is the 0:07:24.760 --> 0:07:27.960 phrase that Congress used in the statute. Is it enough 0:07:28.040 --> 0:07:30.840 if the device has of the capacity to store numbers 0:07:30.920 --> 0:07:33.400 and then dial them automatically, which is what the Ninth 0:07:33.400 --> 0:07:36.280 Circuit held in this case, or does the device also 0:07:36.680 --> 0:07:40.000 have to use a random or sequential number generated to 0:07:40.040 --> 0:07:43.600 actually make the calls? Is Facebook argues in this case. 0:07:44.080 --> 0:07:46.440 And you know, the one thing that Facebook really has 0:07:46.520 --> 0:07:48.840 going for it here is that if the answer is 0:07:48.920 --> 0:07:52.480 that the use of a random or sequential number generator 0:07:52.640 --> 0:07:57.240 is not required, then basically every smartphone in America is 0:07:57.520 --> 0:08:01.640 an automatic telephone dialing system and any call to a 0:08:01.680 --> 0:08:05.960 wrong number or text is a t c P A violation. 0:08:06.240 --> 0:08:09.280 And so you know, particularly since the justicism sells have 0:08:09.400 --> 0:08:12.360 their own smartphones, I don't think that that result is 0:08:12.400 --> 0:08:14.400 necessarily going to sit well with them, and it really 0:08:14.440 --> 0:08:19.200 would be an extraordinary burden for Congress to have created generally, 0:08:19.240 --> 0:08:21.840 So I think here the argument of the Ninth Circuit 0:08:21.960 --> 0:08:25.640 simply construed the statute too broadly has a lot of force. 0:08:26.160 --> 0:08:29.760 So perhaps advantage Facebook there. Let's turn down to a 0:08:29.840 --> 0:08:33.360 high stakes dispute involving Fannie Mae and Freddie Mack and 0:08:33.400 --> 0:08:36.480 the hundreds of billions of dollars in their profits that 0:08:36.520 --> 0:08:39.640 have gone into the U. S. Treasury. This case involves 0:08:39.640 --> 0:08:43.400 a challenge to the Federal Housing Finance Agency, much like 0:08:43.480 --> 0:08:47.760 a challenge to the Consumer Financial Protection Bureau less term. Really, 0:08:47.800 --> 0:08:50.000 this case falls on the heels of the failure Law 0:08:50.040 --> 0:08:53.560 case last term, in which the Court held that the 0:08:53.559 --> 0:08:58.160 CFPBS structure, which included having a single director in which 0:08:58.240 --> 0:09:02.720 this great authority was vested in insulating the president's ability 0:09:02.760 --> 0:09:07.480 to remove that director, violated the structural protections of the 0:09:07.520 --> 0:09:12.720 separation of powers. And the Federal Housing Finance Agency it 0:09:12.760 --> 0:09:15.200 has a very similar structure. It was creating in the 0:09:15.200 --> 0:09:18.960 wake of the two thousand and eight economic crisis, and 0:09:19.000 --> 0:09:22.920 they gave you a single head, enormous authority for an 0:09:22.920 --> 0:09:25.840 independent agency. And so I think, especially in the light 0:09:25.920 --> 0:09:29.000 of failure Law, it's hard to see how that structure 0:09:29.240 --> 0:09:32.960 and the fore cause removal provision could survive intact. But 0:09:33.000 --> 0:09:36.120 then the question again is, Okay, what's the remedy. You 0:09:36.280 --> 0:09:41.160 just sever the fore cause removal provision or do you 0:09:41.200 --> 0:09:45.280 take a more drastic approach and invalidate the actual administrative 0:09:45.280 --> 0:09:47.320 action in this case, which is the focus of the 0:09:47.400 --> 0:09:51.920 litigation and a massive transfer of economic interest from Fannie 0:09:51.920 --> 0:09:55.400 Mae and Freddie Mack into the United States Treasury. Could 0:09:55.440 --> 0:09:59.560 the outcome be different because of the difference between the 0:09:59.559 --> 0:10:03.200 Consumer or Financial Protection Bureau and what it does and 0:10:03.480 --> 0:10:07.280 what Fannie May and Freddie Matt do. The history there, 0:10:07.400 --> 0:10:11.920 the interests of shareholders and investors and some people wanting 0:10:11.920 --> 0:10:15.280 to unwind them for years. Well, I think it's the 0:10:15.360 --> 0:10:19.800 particular structure of this new agency doesn't survive because of 0:10:19.840 --> 0:10:22.840 the absence of the ability to the President to remove 0:10:23.080 --> 0:10:27.520 the director for reasons that wouldn't qualify as cause. Then 0:10:27.559 --> 0:10:30.400 I think the agency would have to be altered in 0:10:30.480 --> 0:10:33.600 that respect, at the least. In terms of the broader 0:10:33.640 --> 0:10:37.280 implications of the case for Freddie Mack and Fanny May, 0:10:37.320 --> 0:10:39.319 it's harder to say. I mean, the government in this 0:10:39.360 --> 0:10:42.280 case is, you know, taking a somewhat different tack and 0:10:42.400 --> 0:10:45.600 is arguing that the challengers here really can't sue for 0:10:45.640 --> 0:10:49.000 the relief that they're seeking the invalidation of this transfer 0:10:49.480 --> 0:10:52.360 under the provisions of the statute, and so you know, 0:10:52.440 --> 0:10:56.640 that presents another interesting and fairly statute specific question. But 0:10:57.240 --> 0:10:59.800 I think that's the signal that the government doesn't feel 0:10:59.840 --> 0:11:02.920 as though its arguments on the structure of the Statute 0:11:02.920 --> 0:11:05.839 as a whole are as strong. The Court is going 0:11:05.880 --> 0:11:08.760 to intervene in this long running fight over whether the 0:11:08.800 --> 0:11:13.679 Federal Communications Commission can loosen ownership restrictions that affect TV 0:11:13.840 --> 0:11:17.280 stations and newspapers. And the SEC has been trying to 0:11:17.320 --> 0:11:20.760 do this since two thousand two and has been foiled 0:11:20.880 --> 0:11:24.040 by the Third Circuit Court of Appeal. So tell us 0:11:24.080 --> 0:11:27.080 what's that issue here? So this is a seventeen year 0:11:27.160 --> 0:11:30.160 back and forth epic match between the FCC and the 0:11:30.160 --> 0:11:33.800 Third Circuit. And basically, this time the Court held that 0:11:33.920 --> 0:11:37.800 the FEC's new media ownership rules had to be set 0:11:37.840 --> 0:11:41.480 aside because the FEC had failed adequately to analyze the 0:11:41.520 --> 0:11:45.520 potential effect of its regulatory changes on female and minority 0:11:45.559 --> 0:11:49.600 ownership of broadcast stations. And so basically it sets up 0:11:49.679 --> 0:11:53.880 a challenge to the deference owed by federal courts to 0:11:54.320 --> 0:11:58.160 the essentially policy decisions made by agencies in the course 0:11:58.200 --> 0:12:01.640 of rulemaking. And it come at an interesting time because 0:12:01.679 --> 0:12:04.840 we've seen in recent cases like the Census case, in 0:12:04.880 --> 0:12:07.520 the Data case last term that the Court has taken 0:12:07.559 --> 0:12:10.959 I think a harder look at the reasons that administrative 0:12:10.960 --> 0:12:15.080 agencies give for their decisions and has generally been willing 0:12:15.160 --> 0:12:19.360 to scrutinize administrative decisions a little bit more carefully. And 0:12:19.440 --> 0:12:22.840 here the SEC in the government is arguing straight up 0:12:22.880 --> 0:12:27.480 for more deference under the arbitrary and capricious standard and 0:12:27.600 --> 0:12:32.520 arguing that the Third Circuit here, you know, failed reasonably 0:12:32.559 --> 0:12:36.760 to defer to the agencies, you know, own judgments about 0:12:36.800 --> 0:12:41.040 how to best serve the statutory purposes. So where do 0:12:41.080 --> 0:12:43.800 you think the Court might come out, Well, I don't 0:12:43.800 --> 0:12:46.320 think it will be happy with this sort of back 0:12:46.360 --> 0:12:48.960 and forth between the Third Circuit and the SEC. And 0:12:49.440 --> 0:12:52.760 you know, my guest is generally this may be a 0:12:52.760 --> 0:12:55.080 case where it would be willing to defer and and 0:12:55.120 --> 0:12:58.559 maybe sort of set out an an outpost of of 0:12:58.960 --> 0:13:03.360 you know what arbitrary and capricious review means. But it's 0:13:03.360 --> 0:13:05.920 tough to say. I mean that the Court in recent years, 0:13:05.960 --> 0:13:12.080 you know, has gotten more receptive to UH challenges that 0:13:12.600 --> 0:13:15.280 we're not going to defer to agency decision making. So 0:13:15.360 --> 0:13:18.040 it's it's a new court in that respect. And you know, 0:13:18.080 --> 0:13:20.920 this case sort of tease up another opportunity to see 0:13:21.240 --> 0:13:25.080 where the Court is on administrative difference. Generally, the justices 0:13:25.120 --> 0:13:28.160 are going to consider a case that involves child slavery 0:13:28.200 --> 0:13:32.040 on Coco farms in the Ivory Coast. Six former child 0:13:32.080 --> 0:13:36.520 slaves accused Nesley and Cargo of giving Ivory Coast farmers 0:13:36.600 --> 0:13:41.319 financial assistance in the expectation that Coco prices would stay low, 0:13:41.520 --> 0:13:44.280 which the companies deny. This case has been moving up 0:13:44.320 --> 0:13:47.040 and down the federal court system since two thousand five, 0:13:47.559 --> 0:13:50.480 and the question is whether they can sue that's right. 0:13:50.679 --> 0:13:52.680 In this case, you know, rises under the one of 0:13:52.679 --> 0:13:55.880 the country's oldest and really most confounding statutes, the Alien 0:13:55.920 --> 0:14:00.320 Towards Statute, which gives the federal courts generally juristic action 0:14:00.840 --> 0:14:04.000 to hear civil actions brought by aliens in a tourt 0:14:04.120 --> 0:14:07.520 only for violations of international law. And you know, the 0:14:07.559 --> 0:14:11.760 court generally in recent terms have been scaling back the 0:14:11.800 --> 0:14:15.360 ability of plaintiffs to bring these claims. You know, it's 0:14:15.400 --> 0:14:19.400 held that the statute does not apply extra territorially, so 0:14:19.440 --> 0:14:21.440 that plaintiffs have to show a real connection with the 0:14:21.560 --> 0:14:26.880 United States. It recently held that foreign corporations could not 0:14:27.000 --> 0:14:30.240 bring suits under the Alien Towards Statute. And so in 0:14:30.240 --> 0:14:33.200 this case, the questions are whether or not Number one, 0:14:33.320 --> 0:14:36.000 you can sue a domestic corporation even though you can't 0:14:36.000 --> 0:14:39.480 sue foreign corporation under the statute. And number two, if 0:14:39.480 --> 0:14:42.480 you can do that, is there a domestic aiding and 0:14:42.520 --> 0:14:47.960 abetting liability for a foreign violation? And does that overcome 0:14:47.960 --> 0:14:52.600 the Alien Towards Statutes presumption against extra territoriality. Here the 0:14:52.680 --> 0:14:56.360 claim is that because certain funding decisions were made in 0:14:56.360 --> 0:14:59.880 the United States headquarters of the defendants that old to 0:15:00.280 --> 0:15:05.240 we touched upon the overseas violations, that there's a sufficient 0:15:05.360 --> 0:15:08.640 enough connection for aiding invetding liability. And I think the 0:15:08.680 --> 0:15:11.760 plane of fear face an uphill battle given that the 0:15:11.800 --> 0:15:15.200 Court has seemed, you know, concerned about the scope of 0:15:15.680 --> 0:15:20.040 Alien Towards Statute in prior cases, and the court generally 0:15:20.320 --> 0:15:25.080 is reluctant to sort of imply or infer private remedies 0:15:25.080 --> 0:15:28.760 that haven't been expressly created by Congress, which would be 0:15:28.800 --> 0:15:31.840 the case here if it were to recognize the scope 0:15:31.840 --> 0:15:36.560 of the action would cover domestic corporations for aiding inbedding liability. Finally, 0:15:36.720 --> 0:15:40.160 there's a case involving stolen Nazi art. The heirs of 0:15:40.240 --> 0:15:43.440 Jewish art dealers say their ancestors were forced to sell 0:15:43.480 --> 0:15:46.120 a collection of religious art to the Nazi government in 0:15:46.240 --> 0:15:50.000 ninety five for a fraction of its value. Those forty 0:15:50.000 --> 0:15:52.400 two pieces are now on display in a museum in 0:15:52.480 --> 0:15:55.560 Berlin and are estimated to be worth nearly a quarter 0:15:55.600 --> 0:15:58.720 of a billion dollars. The museum says the deal was 0:15:58.800 --> 0:16:02.440 legal and fair. Will this case go forward. The basic 0:16:02.600 --> 0:16:06.120 question in this case is that the scope of immunity 0:16:06.200 --> 0:16:11.040 that foreign countries enjoined the Foreign Sovereign Immunities Act. As 0:16:11.120 --> 0:16:13.160 you mentioned, I mean the plans here are areas of 0:16:13.280 --> 0:16:15.480 Jewish art dealers who lived in Germany and the nineteen 0:16:15.480 --> 0:16:19.440 thirties and who claimed that the Nazi regime stole art 0:16:19.560 --> 0:16:21.640 from them, and they're seeking, like you know, others in 0:16:21.680 --> 0:16:24.800 their position have to sue in the United States court 0:16:24.880 --> 0:16:28.480 to reclaim the art, and the DC certain in this 0:16:28.520 --> 0:16:32.000 case allowed the case to proceed. And it comes down 0:16:32.040 --> 0:16:35.880 to a technical question about the scope of the expropriation 0:16:36.400 --> 0:16:40.320 exception under the Foreign Sovereign Immunities Act, and in particular 0:16:40.800 --> 0:16:43.320 whether or not when the claim is that a foreign 0:16:43.400 --> 0:16:47.560 government took its own citizens property, as the claim is 0:16:47.600 --> 0:16:50.960 here with respect to the Nazi regime, that that can 0:16:51.040 --> 0:16:54.760 invoke the exception, even though as the government argues in 0:16:54.800 --> 0:16:57.720 this case that a claim that a foreign government took 0:16:57.760 --> 0:17:02.280 its own citizens property in general, he doesn't violate international law. 0:17:02.600 --> 0:17:05.840 And so here importantly, while the United States goes out 0:17:05.840 --> 0:17:09.840 of its way to condemned the deplorable atrocities committed by 0:17:10.040 --> 0:17:13.120 the Nazi regime, it says that the DC Circuit had 0:17:13.160 --> 0:17:16.440 aired in allowing the suit to proceed, and that instead 0:17:17.000 --> 0:17:20.119 the foreign government, the Federal Republic of Germany, should have 0:17:20.160 --> 0:17:23.080 been entitled to sovereign immunity. So these are, you know, 0:17:23.119 --> 0:17:28.840 obviously very challenging cases and invoke strong emotions. So I 0:17:28.920 --> 0:17:31.960 think they're difficult ones for the justices to resolve. Certainly 0:17:31.960 --> 0:17:34.560 one that will be interesting to follow. This case is 0:17:34.640 --> 0:17:37.159 likely going to draw a lot of attention. There have 0:17:37.200 --> 0:17:41.240 been so many movies and documentaries about stolen Nazi art, 0:17:41.520 --> 0:17:44.920 and there's such a sympathy factor here. Could that affect 0:17:44.920 --> 0:17:47.600 this decision in any way? I mean, look, I mean 0:17:47.960 --> 0:17:51.879 India and Jones said basically nobody likes Nazis, so and 0:17:51.920 --> 0:17:53.720 you know, I'm sure that goes for the justice too. 0:17:53.760 --> 0:17:57.160 But look, they will be deciding technical legal questions here 0:17:57.200 --> 0:17:59.240 about the meaning of a statute, and that's what they 0:17:59.280 --> 0:18:01.840 do all the time, and I'm sure that they'll do 0:18:01.920 --> 0:18:05.359 their best to resolve this statutory question. Does it seem 0:18:05.400 --> 0:18:09.080 as if this term there are less hot button issues, 0:18:09.240 --> 0:18:13.920 less divisive issues that the Court is taken up than 0:18:13.960 --> 0:18:17.720 in prior terms then last term. I think that's definitely 0:18:17.960 --> 0:18:20.879 right that this term, you know, at the beginning and 0:18:21.119 --> 0:18:23.800 there's a lot that lies ahead, you wouldn't say it 0:18:23.840 --> 0:18:26.879 has the sort of blockbuster potential that we've seen in 0:18:26.880 --> 0:18:30.840 the Court in recent terms. But that can change really quickly, 0:18:31.040 --> 0:18:34.959 particularly with the presidential election less than a month away 0:18:35.280 --> 0:18:40.640 and only about probably about the courts docket filled. So 0:18:40.880 --> 0:18:43.159 as it's true, and you know, almost every term, the 0:18:43.160 --> 0:18:46.080 beginning of the term only provides a brief glimpse of 0:18:46.119 --> 0:18:48.240 what's going to be on the Court's docket, and we 0:18:48.320 --> 0:18:51.720 certainly could see consequential cases getting up to the court 0:18:51.800 --> 0:18:53.879 before the end of the term. Thanks for being on 0:18:53.880 --> 0:18:57.720 the Bloomberg Law Show. Greg that's former Solicitor General Gregory 0:18:57.840 --> 0:19:00.960 gar a partner at Latham and Walking. And that's it 0:19:01.040 --> 0:19:04.080 for the edition of the Bloomberg Law Show. I'm June Grasso. 0:19:04.280 --> 0:19:06.760 Thanks so much for listening, and remember to tune to 0:19:06.760 --> 0:19:09.040 the Bloomberg Law Show every weeknight at ten p m. 0:19:09.080 --> 0:19:11.160 Eastern right here on Bloomberg Radio.