1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Brossel from Bloomberg Radio. 2 00:00:10,039 --> 00:00:14,040 Speaker 2: Honorable the Chief Justice and the Associate Justices of the 3 00:00:14,080 --> 00:00:18,440 Speaker 2: Supreme Court of the United States. Oh yay, oh yay, 4 00:00:18,920 --> 00:00:19,480 Speaker 2: Oh yay. 5 00:00:20,280 --> 00:00:23,599 Speaker 1: The new Supreme Court term begins on Monday, and it 6 00:00:23,720 --> 00:00:29,720 Speaker 1: promises to lead to several blockbuster decisions on the docket tariffs, 7 00:00:29,920 --> 00:00:36,120 Speaker 1: voting rights, religion, transgender rights, copyright and capital punishment, and 8 00:00:36,200 --> 00:00:40,600 Speaker 1: looming over it all, several tests of President Trump's attempts 9 00:00:40,640 --> 00:00:44,960 Speaker 1: to expand executive power. My guest is former United States 10 00:00:44,960 --> 00:00:49,000 Speaker 1: Solicitor General Gregory Garr, a partner at Latham and Watkins. 11 00:00:49,440 --> 00:00:51,960 Speaker 1: Greg let's start with one of the biggest cases of 12 00:00:52,000 --> 00:00:55,720 Speaker 1: the term, where trillions of dollars in trade are at stake, 13 00:00:56,200 --> 00:01:01,000 Speaker 1: as well as the extent of the president's authority away tariffs. 14 00:01:01,920 --> 00:01:04,320 Speaker 2: We could end up being a third World country. 15 00:01:04,680 --> 00:01:08,760 Speaker 1: Lower courts have ruled that Trump overstepped his authority in 16 00:01:08,840 --> 00:01:12,000 Speaker 1: imposing the tariffs, but now it will be up to 17 00:01:12,040 --> 00:01:14,040 Speaker 1: the Supreme Court to decide. 18 00:01:14,640 --> 00:01:19,039 Speaker 3: It's a very important decision, and frankly, if they make 19 00:01:19,080 --> 00:01:22,240 Speaker 3: the wrong decision, it would be a devastation for our country. 20 00:01:22,680 --> 00:01:25,360 Speaker 3: We've taken in trillions of dollars. 21 00:01:25,520 --> 00:01:27,160 Speaker 1: Greig, what are the issues here? 22 00:01:27,600 --> 00:01:31,800 Speaker 4: So this case involves a challenge brought by small businesses 23 00:01:31,840 --> 00:01:36,160 Speaker 4: to President Trump's tariff policy imposing tariffs on products from 24 00:01:36,200 --> 00:01:39,520 Speaker 4: companies around the world. Importantly, in this case, the president 25 00:01:39,560 --> 00:01:43,360 Speaker 4: doesn't assert inherent executive power to impose the tariffs, and 26 00:01:43,440 --> 00:01:46,520 Speaker 4: said he claims that Congress granted him the power under 27 00:01:46,520 --> 00:01:50,440 Speaker 4: a fifty year old statute called the International Emergency Economic 28 00:01:50,480 --> 00:01:53,720 Speaker 4: Powers Act, or AEPA, and Section seventeen oh two of 29 00:01:53,800 --> 00:01:57,280 Speaker 4: AEPA has a long list of things that the president 30 00:01:57,360 --> 00:02:01,240 Speaker 4: can do if he declares an emergency, as President Trump 31 00:02:01,320 --> 00:02:05,160 Speaker 4: did here on the basis of foreign trade deficits and 32 00:02:05,200 --> 00:02:08,280 Speaker 4: the Futonol crisis as to certain countries. So when the 33 00:02:08,320 --> 00:02:12,160 Speaker 4: president declares such an emergency, Congress authorized him to do 34 00:02:12,200 --> 00:02:16,240 Speaker 4: a number of things, including to quote unquote regulate the 35 00:02:16,280 --> 00:02:21,760 Speaker 4: importation of goods. So this statue doesn't mention tariffs expressly. 36 00:02:22,040 --> 00:02:25,200 Speaker 4: Before this year, no president in aiba's fifty year history 37 00:02:25,240 --> 00:02:29,120 Speaker 4: had ever invoked it to impose tariffs, and Congress has 38 00:02:29,120 --> 00:02:33,639 Speaker 4: always explicitly imposed limitations on the exercise of tariffs when 39 00:02:33,639 --> 00:02:37,560 Speaker 4: it's granted that power explicitly. But the President claims that 40 00:02:37,600 --> 00:02:41,440 Speaker 4: the broad reference to regulate in this statute does authorize 41 00:02:41,520 --> 00:02:44,400 Speaker 4: him to impose the tariffs. So far, he's lost that 42 00:02:44,520 --> 00:02:47,560 Speaker 4: argument in each of the lower courts that has considered it, 43 00:02:47,639 --> 00:02:50,600 Speaker 4: but the case is moving to the Supreme Court. And 44 00:02:50,639 --> 00:02:54,359 Speaker 4: one of the signature projects of the Roberts Court has 45 00:02:54,360 --> 00:02:57,840 Speaker 4: been the development of the so called major Questions doctrine, 46 00:02:57,880 --> 00:03:02,120 Speaker 4: which is built on the age old principle that Congress 47 00:03:02,200 --> 00:03:06,160 Speaker 4: does not hide elephants in mouseholes. So a couple of 48 00:03:06,240 --> 00:03:10,160 Speaker 4: years ago, the Supreme Court in Biden versus Nebraska held 49 00:03:10,200 --> 00:03:14,120 Speaker 4: the Department of Education lacked authority to institute sweeping student 50 00:03:14,200 --> 00:03:18,239 Speaker 4: loan forgiveness on the basis of a general emergency language 51 00:03:18,720 --> 00:03:21,280 Speaker 4: in the Hero's Act. And before then it held in 52 00:03:21,320 --> 00:03:24,120 Speaker 4: a different case that the EPA couldn't rely on a 53 00:03:24,160 --> 00:03:27,119 Speaker 4: general provision of the Clean Air Act to enforce sweeping 54 00:03:27,560 --> 00:03:31,800 Speaker 4: climate change regulation. And the challengers in this case essentially 55 00:03:31,880 --> 00:03:35,400 Speaker 4: argued that the same principle compels the conclusion that Ayapa's 56 00:03:35,440 --> 00:03:39,320 Speaker 4: general reference to regulate can't be interpreted to authorize the 57 00:03:39,480 --> 00:03:42,000 Speaker 4: President to impose what would amount to one of the 58 00:03:42,000 --> 00:03:45,760 Speaker 4: biggest text increases in US history, sort of the elephant 59 00:03:46,040 --> 00:03:50,040 Speaker 4: of all elephants. Now, in response, the administration claims that 60 00:03:50,320 --> 00:03:53,120 Speaker 4: the Court has never applied the major Questions doctrine to 61 00:03:53,280 --> 00:03:56,840 Speaker 4: the foreign affairs context, and that in that context, the 62 00:03:56,880 --> 00:04:00,520 Speaker 4: Court should presume that Congress would give the president more leeway, 63 00:04:00,920 --> 00:04:04,320 Speaker 4: which is actually something that Justice Kavanaugh suggested in a 64 00:04:04,360 --> 00:04:08,400 Speaker 4: concurring opinion last year. Nevertheless, it seems hard to square 65 00:04:08,440 --> 00:04:11,960 Speaker 4: the administration's position in this case with the application of 66 00:04:12,000 --> 00:04:15,680 Speaker 4: the major question doctrine in other cases, particularly given that 67 00:04:15,800 --> 00:04:20,080 Speaker 4: few presidential acts have had such a momentous economic sweep 68 00:04:20,240 --> 00:04:23,680 Speaker 4: as the president's tariff program has. So this is a 69 00:04:23,800 --> 00:04:26,560 Speaker 4: very big power he's asserting, and you know, we're all 70 00:04:26,600 --> 00:04:30,160 Speaker 4: waiting to see how the Court reacts to this particular assertion. 71 00:04:30,760 --> 00:04:33,160 Speaker 1: Well, the case is the Court is going to consider 72 00:04:33,320 --> 00:04:37,640 Speaker 1: this term. Do you think that this tariff's case presents 73 00:04:37,680 --> 00:04:43,480 Speaker 1: the most significant test of Trump's attempts to expand presidential power. 74 00:04:44,320 --> 00:04:47,000 Speaker 4: Well, this case is different, and that again, it really 75 00:04:47,160 --> 00:04:51,520 Speaker 4: just concerns the scope of the authority that Congress granted. 76 00:04:51,920 --> 00:04:54,000 Speaker 4: In other cases that I think we'll talk about the 77 00:04:54,080 --> 00:04:58,880 Speaker 4: question is the president's assertion of his own inherent constitutional authority. 78 00:04:59,240 --> 00:05:01,200 Speaker 4: But this case, it really just boils down to a 79 00:05:01,240 --> 00:05:04,200 Speaker 4: question of what Congress delegated. So I mean, even if 80 00:05:04,279 --> 00:05:08,080 Speaker 4: the administration did win this case, it would still lead 81 00:05:08,200 --> 00:05:11,320 Speaker 4: to Congress the prerogative to change the law. On the 82 00:05:11,320 --> 00:05:14,039 Speaker 4: other hand, the Court might hold, again, following its major 83 00:05:14,160 --> 00:05:18,760 Speaker 4: questions cases that Congress simply didn't delegate this elephant to 84 00:05:18,800 --> 00:05:19,280 Speaker 4: begin with. 85 00:05:19,520 --> 00:05:22,599 Speaker 1: Okay, So going on to a couple of other cases 86 00:05:22,720 --> 00:05:26,480 Speaker 1: that set up tests of presidential power over federal agencies 87 00:05:26,560 --> 00:05:30,000 Speaker 1: that have been independent. They involved Trump firing a member 88 00:05:30,040 --> 00:05:32,920 Speaker 1: of the Federal Trade Commission, Rebecca Slaughter, and a Federal 89 00:05:32,960 --> 00:05:36,720 Speaker 1: Reserve Board governor Lisa Cook, slightly different issues. So let's 90 00:05:36,720 --> 00:05:41,000 Speaker 1: start with the FTC commissioner and the law there that 91 00:05:41,120 --> 00:05:45,120 Speaker 1: says commissioners can only be removed for cause, right. 92 00:05:44,960 --> 00:05:46,880 Speaker 4: And this is one of the cases where the president 93 00:05:46,920 --> 00:05:51,080 Speaker 4: is asserting his own inherent authority and Congress has imposed 94 00:05:51,080 --> 00:05:54,760 Speaker 4: a limitation on the president's removal authority with respective heads 95 00:05:54,760 --> 00:05:58,320 Speaker 4: of the Federal Trade Commission and requires the President to 96 00:05:58,360 --> 00:06:02,599 Speaker 4: show cause things like malfeasance or neglect of duty or 97 00:06:02,640 --> 00:06:05,560 Speaker 4: the like before he can actually remove the official. And 98 00:06:05,600 --> 00:06:09,400 Speaker 4: in this case, the president removed the official Rebecca Slaughter 99 00:06:09,520 --> 00:06:13,920 Speaker 4: commissioner of the FTC simply because he disagreed with her 100 00:06:14,200 --> 00:06:16,919 Speaker 4: as a matter of policy. So this case tees up 101 00:06:16,960 --> 00:06:21,000 Speaker 4: a challenge to a nineteen thirty five decision called Humphrey's Executor, 102 00:06:21,160 --> 00:06:24,480 Speaker 4: where the Court upheld the Congress's in position of a 103 00:06:24,480 --> 00:06:28,640 Speaker 4: four cause requirement on the president's removal of commissioners of 104 00:06:28,680 --> 00:06:31,840 Speaker 4: the FTC. So it's basically just a redo and a 105 00:06:31,960 --> 00:06:36,640 Speaker 4: chance for the Supreme Court to reconsider it's Humphrey's Executor precedent. 106 00:06:36,800 --> 00:06:39,640 Speaker 4: The administration here is arguing, first of all, that the 107 00:06:39,680 --> 00:06:42,960 Speaker 4: FTC has changed a lot since the day of Humphrey's Executor. 108 00:06:42,960 --> 00:06:46,240 Speaker 4: In essence, this is not your grandfather's FTC. It's got 109 00:06:46,279 --> 00:06:50,760 Speaker 4: a lot more executive authority, and so whatever constitutional basis 110 00:06:50,800 --> 00:06:53,560 Speaker 4: the Court had for its decision in Humphrey's Executor, that 111 00:06:53,600 --> 00:06:58,360 Speaker 4: shouldn't apply to the FTC today. The administration also argues 112 00:06:58,440 --> 00:07:00,680 Speaker 4: that if the Court doesn't accept that, it should just 113 00:07:00,720 --> 00:07:04,640 Speaker 4: go ahead and overrule the Humphreys Executor decision, which is 114 00:07:04,680 --> 00:07:08,120 Speaker 4: something a number of the more conservative justices have expressed 115 00:07:08,120 --> 00:07:12,240 Speaker 4: a willingness to do in recent years. And the administration 116 00:07:12,360 --> 00:07:14,440 Speaker 4: is also arguing that, you know, even if the president 117 00:07:14,480 --> 00:07:17,400 Speaker 4: did do something wrong here, a court couldn't actually order 118 00:07:17,440 --> 00:07:21,280 Speaker 4: the reinstatement of the official miss slaughter. Here the only 119 00:07:21,360 --> 00:07:24,080 Speaker 4: remedy would be one for back pay, which is actually 120 00:07:24,160 --> 00:07:27,239 Speaker 4: the remedy that was sought in the Humphreys executor case. 121 00:07:27,480 --> 00:07:31,640 Speaker 4: So this is a major test of executive power. And really, 122 00:07:31,800 --> 00:07:34,880 Speaker 4: although the case arises in the context of firing an individual, 123 00:07:35,360 --> 00:07:38,760 Speaker 4: ultimately it's about the president seeking to gain control of 124 00:07:38,840 --> 00:07:42,240 Speaker 4: so called independent agencies by being able to place his 125 00:07:42,360 --> 00:07:45,320 Speaker 4: own preferred heads of those agencies in place. 126 00:07:46,040 --> 00:07:49,080 Speaker 1: So the Court has been chipping away at Humphrey's Executor 127 00:07:49,440 --> 00:07:53,000 Speaker 1: for a while, and Justice Elena Keigan said in one 128 00:07:53,000 --> 00:07:55,560 Speaker 1: of her recent decisions that you know, they're raring to 129 00:07:55,600 --> 00:07:58,720 Speaker 1: get rid of Humphrey's executor. Do you think Humphrey's executor 130 00:07:58,800 --> 00:07:59,840 Speaker 1: can survive this? 131 00:08:01,120 --> 00:08:03,040 Speaker 4: You know, it sure seems like they are raring to 132 00:08:03,040 --> 00:08:04,960 Speaker 4: get rid of it. And you know, I probably would 133 00:08:05,040 --> 00:08:07,640 Speaker 4: put my money on the side of it not surviving. 134 00:08:08,080 --> 00:08:10,960 Speaker 4: That said, I mean, it would be fairly easy for 135 00:08:11,040 --> 00:08:13,600 Speaker 4: the court to say that the FDC today is much 136 00:08:13,600 --> 00:08:16,640 Speaker 4: different than the FDC in Humphrey's Executor time, and so 137 00:08:16,840 --> 00:08:19,720 Speaker 4: to you know, further narrow Humphrey's executor. But I do 138 00:08:19,720 --> 00:08:22,360 Speaker 4: think it's the case that the justices probably have just 139 00:08:22,440 --> 00:08:26,160 Speaker 4: had enough, So I think Humphrey's executors' day's maybe number. 140 00:08:26,640 --> 00:08:29,840 Speaker 1: The Court refused to let Slaughter return to her job 141 00:08:30,000 --> 00:08:33,480 Speaker 1: as the litigation goes forward, and that sets it apart 142 00:08:33,480 --> 00:08:37,400 Speaker 1: from the next case we'll talk about involving Trump's attempts 143 00:08:37,480 --> 00:08:41,400 Speaker 1: to fire Federal Reserve Board Governor Lisa Cook. And this 144 00:08:41,520 --> 00:08:45,439 Speaker 1: week the Court said that Trump can't fire Cook as 145 00:08:45,480 --> 00:08:49,920 Speaker 1: the litigation is proceeding. Is that different significant? 146 00:08:50,120 --> 00:08:51,960 Speaker 4: Yeah? I think it is. I mean it's the one 147 00:08:52,040 --> 00:08:55,240 Speaker 4: time among all the other officials that the President has 148 00:08:55,240 --> 00:08:58,760 Speaker 4: fired that the Supreme Court has declined to grant the 149 00:08:58,800 --> 00:09:02,440 Speaker 4: administration's request us to permit it to actually remove the 150 00:09:02,440 --> 00:09:05,600 Speaker 4: official once and for all. And instead, what the Supreme 151 00:09:05,600 --> 00:09:08,360 Speaker 4: Court did here was set the case for argument on 152 00:09:08,400 --> 00:09:13,000 Speaker 4: the administration's emergency request in January. Cook's case is different. 153 00:09:13,080 --> 00:09:15,360 Speaker 4: Cook is a member of the Board of Governors of 154 00:09:15,360 --> 00:09:18,559 Speaker 4: the Federal Reserve, and here the President is in claiming 155 00:09:18,600 --> 00:09:21,480 Speaker 4: that he had the right to fire Cook for any reason. 156 00:09:21,840 --> 00:09:25,080 Speaker 4: He claims that he had cause based on allegations that 157 00:09:25,120 --> 00:09:28,000 Speaker 4: she had engaged in mortgage fraud before she became a 158 00:09:28,040 --> 00:09:30,480 Speaker 4: member of the FED. So that's one way in which 159 00:09:30,520 --> 00:09:33,240 Speaker 4: the case is different than the Slaughter case. And then 160 00:09:33,240 --> 00:09:37,199 Speaker 4: also the Supreme Court has indicated in prior opinions that 161 00:09:37,360 --> 00:09:39,880 Speaker 4: the FED may be different and that it's what the 162 00:09:39,880 --> 00:09:44,040 Speaker 4: Supreme Court called a uniquely structured in quasi private entity 163 00:09:44,400 --> 00:09:47,200 Speaker 4: with the unique history. So even if the Court is 164 00:09:47,400 --> 00:09:50,120 Speaker 4: poised to overrule Humphrey's executor in the case of an 165 00:09:50,160 --> 00:09:53,439 Speaker 4: FDC official, it's not at all clear that the Court 166 00:09:53,559 --> 00:09:56,280 Speaker 4: is poised to reach anything like that result in the 167 00:09:56,320 --> 00:10:00,120 Speaker 4: context of the FED, which I think many believe is 168 00:10:00,120 --> 00:10:04,320 Speaker 4: is uniquely important in terms of its insulation from immediate 169 00:10:04,400 --> 00:10:05,480 Speaker 4: presidential control. 170 00:10:05,760 --> 00:10:09,560 Speaker 1: Let's turn to a business case where Cox Communications is 171 00:10:09,640 --> 00:10:13,360 Speaker 1: trying to overturn a one billion dollar verdict in a 172 00:10:13,400 --> 00:10:14,880 Speaker 1: suit by the music industry. 173 00:10:15,440 --> 00:10:18,839 Speaker 4: This case involves the important copyright question of whether an 174 00:10:18,840 --> 00:10:22,920 Speaker 4: Internet service provider can be held contributorily liable for its 175 00:10:22,960 --> 00:10:27,240 Speaker 4: customers act of copyright infringement. So the Internet service provider 176 00:10:27,440 --> 00:10:32,320 Speaker 4: allows streaming and someone at his home improperly downloads music. 177 00:10:32,640 --> 00:10:35,280 Speaker 4: The Court of Appeals held that a culpable intent to 178 00:10:35,320 --> 00:10:40,120 Speaker 4: facilitate infringement could be inferred simply on the basis that 179 00:10:40,200 --> 00:10:44,000 Speaker 4: the Internet service provider continued to provide services after it 180 00:10:44,080 --> 00:10:48,520 Speaker 4: knew that those services were being used to commit direct infringement. 181 00:10:48,720 --> 00:10:51,880 Speaker 4: And what the challengers argued here, pointing to prior Supreme 182 00:10:51,920 --> 00:10:55,000 Speaker 4: Court present in this area, is that near knowledge of 183 00:10:55,040 --> 00:10:59,959 Speaker 4: an actual infringing use is insufficient to impose secondary liability 184 00:11:00,160 --> 00:11:03,120 Speaker 4: on the seller of goods or services, and that instead 185 00:11:03,679 --> 00:11:07,960 Speaker 4: what the copyright infringement law requires is a culpable intent 186 00:11:08,040 --> 00:11:11,560 Speaker 4: to facilitate direct infringement, when that would be like evidence 187 00:11:11,600 --> 00:11:15,040 Speaker 4: that the merchant urged another to infringe or actually set 188 00:11:15,120 --> 00:11:19,440 Speaker 4: up a platform that lacked any significant non infringing uses 189 00:11:19,800 --> 00:11:24,400 Speaker 4: anything apart from that, The internet service provider Coxcommunication here 190 00:11:24,920 --> 00:11:28,280 Speaker 4: argues it would create a substantial disincentive for the provision 191 00:11:28,280 --> 00:11:31,800 Speaker 4: of universal Internet service, which could affect all of us, 192 00:11:31,880 --> 00:11:33,840 Speaker 4: or at least anyone in a home or a teenager 193 00:11:34,120 --> 00:11:35,880 Speaker 4: has improperly downloaded music. 194 00:11:36,200 --> 00:11:39,800 Speaker 1: Yeah, Cox Communication argued that Grandma will be thrown off 195 00:11:39,800 --> 00:11:45,079 Speaker 1: the Internet because Junior visited and illegally downloaded songs. Coming 196 00:11:45,160 --> 00:11:49,439 Speaker 1: up next more with Gregory gar on transgender rights, religion 197 00:11:49,559 --> 00:11:53,319 Speaker 1: and voting maps. I'm June Grosso and you're listening to Bloomberg. 198 00:11:54,720 --> 00:11:59,040 Speaker 1: Lindsay Heacox is a transgender woman who participated in club 199 00:11:59,160 --> 00:12:03,120 Speaker 1: level running soccer at Boise State University and believes she 200 00:12:03,160 --> 00:12:06,280 Speaker 1: should be able to play sports like everyone else. 201 00:12:06,520 --> 00:12:09,720 Speaker 4: I don't even think most of my teammates would even 202 00:12:09,760 --> 00:12:10,240 Speaker 4: think of. 203 00:12:10,200 --> 00:12:14,320 Speaker 3: Me as trans. I just look like a regular girl. 204 00:12:14,800 --> 00:12:18,040 Speaker 1: But in twenty twenty, Idaho passed the first of its 205 00:12:18,160 --> 00:12:22,800 Speaker 1: kind law barring transgender women and girls from participating on 206 00:12:22,920 --> 00:12:26,920 Speaker 1: female sports teams. A federal appellate court ruled that the 207 00:12:27,000 --> 00:12:31,359 Speaker 1: ban violated the Equal Protection Clause and couldn't be enforced. 208 00:12:31,760 --> 00:12:35,080 Speaker 1: But now Hee Cox's case, along with that of a 209 00:12:35,160 --> 00:12:39,640 Speaker 1: fifteen year old transgender girl from West Virginia, is before 210 00:12:39,720 --> 00:12:43,240 Speaker 1: the Supreme Court. I've been talking to former US Solicitor 211 00:12:43,360 --> 00:12:47,400 Speaker 1: General Gregory Garr, a partner at Letham and Watkins. Greg 212 00:12:47,440 --> 00:12:50,520 Speaker 1: These are two of the most closely watched cases of 213 00:12:50,559 --> 00:12:53,760 Speaker 1: the term where the Court is going to decide whether 214 00:12:54,000 --> 00:12:58,280 Speaker 1: states can ban transgender women and girls from competing on 215 00:12:58,520 --> 00:13:03,280 Speaker 1: female athletic teams. The Ninth Circuit blocked Idaho's ban based 216 00:13:03,320 --> 00:13:07,120 Speaker 1: on the Equal Protection Clause, but the Fourth Circuit blocked 217 00:13:07,200 --> 00:13:11,560 Speaker 1: West Virginia's ban based on Title nine, which prohibits sex 218 00:13:11,640 --> 00:13:17,120 Speaker 1: discrimination in federally funded educational programs, tell us about the issues. 219 00:13:16,800 --> 00:13:19,400 Speaker 4: Here, so it wouldn't be a Supreme Court term with that. 220 00:13:19,480 --> 00:13:21,800 Speaker 4: A return to the culture wars in this case definitely 221 00:13:21,880 --> 00:13:25,040 Speaker 4: presents that, and the cases from both circuits do present 222 00:13:25,080 --> 00:13:27,800 Speaker 4: the different questions of the equal Protection Clause in Title 223 00:13:27,920 --> 00:13:30,720 Speaker 4: nine and challenges to the validity of state laws that 224 00:13:30,800 --> 00:13:34,520 Speaker 4: prohibit transgender girls and women from competing in girls and 225 00:13:34,559 --> 00:13:38,000 Speaker 4: women's sports. These are laws that I think about half 226 00:13:38,040 --> 00:13:41,400 Speaker 4: of the states have, and the main legal question in 227 00:13:41,440 --> 00:13:44,880 Speaker 4: the case is whether it's sex discrimination when a state 228 00:13:45,000 --> 00:13:50,679 Speaker 4: mandates that only biological females can compete in female sports. 229 00:13:51,160 --> 00:13:55,400 Speaker 4: Both cases involve transgender girls who want to compete on 230 00:13:55,720 --> 00:14:00,000 Speaker 4: female cross country teams. So last year, as you remember, 231 00:14:00,160 --> 00:14:02,920 Speaker 4: in US versus Scrimti, the Court held that a Tennessee 232 00:14:03,000 --> 00:14:07,320 Speaker 4: law banning puberty blockers and homeowned therapy for transgender miners 233 00:14:07,559 --> 00:14:11,360 Speaker 4: did not engage in sex based discrimination, violating the Equal 234 00:14:11,360 --> 00:14:14,640 Speaker 4: Protection Clause, and it seems likely that the courtal reach 235 00:14:14,679 --> 00:14:17,720 Speaker 4: a similar conclusion here. In fact, picking up on Justice 236 00:14:17,760 --> 00:14:20,960 Speaker 4: Ginsberg's own writings, the government argues that the laws here 237 00:14:21,280 --> 00:14:25,160 Speaker 4: simply take into account the physical differences between men and women, 238 00:14:25,200 --> 00:14:28,880 Speaker 4: and that therefore they don't really engage in impermissible discrimination 239 00:14:29,320 --> 00:14:32,320 Speaker 4: to begin with. Now that plaintiffs sort of counter with 240 00:14:32,480 --> 00:14:35,920 Speaker 4: the Supreme Court's decision in boss Stock versus Clayton County, 241 00:14:36,240 --> 00:14:38,640 Speaker 4: where the Court held the discrimination based on gender or 242 00:14:38,720 --> 00:14:42,880 Speaker 4: sexual identity is discrimination on the basis of sex under 243 00:14:42,960 --> 00:14:45,880 Speaker 4: Title seven. But the Supreme Court distinguished and I think 244 00:14:45,960 --> 00:14:49,720 Speaker 4: limited Bostoc in the Sucurmety case last year, and I 245 00:14:49,720 --> 00:14:53,720 Speaker 4: think that challengers probably have a hard argument in pushing 246 00:14:53,800 --> 00:14:57,680 Speaker 4: Bostok to the Supreme Court in this case. The supporters 247 00:14:57,840 --> 00:15:02,120 Speaker 4: of these laws also argue that allowing biological males to 248 00:15:02,160 --> 00:15:04,720 Speaker 4: compete in women's sports would defeat the whole purpose of 249 00:15:04,800 --> 00:15:07,400 Speaker 4: Title nine. So you know, this is again one of 250 00:15:07,400 --> 00:15:09,760 Speaker 4: these cases that really sort of hits hard on the 251 00:15:09,800 --> 00:15:12,680 Speaker 4: culture wars, and the Court I think will be following 252 00:15:12,680 --> 00:15:15,520 Speaker 4: out Bonnette's decision last year in Scrematti and we'll see 253 00:15:15,560 --> 00:15:16,000 Speaker 4: what it does. 254 00:15:16,320 --> 00:15:19,120 Speaker 1: And it also wouldn't be a Supreme Court term without 255 00:15:19,160 --> 00:15:23,320 Speaker 1: a religious rights case. A Rastafarian wants to suit prison 256 00:15:23,520 --> 00:15:28,480 Speaker 1: officials in Louisiana who forcibly shaved him bald in violation 257 00:15:28,600 --> 00:15:32,040 Speaker 1: of his religious beliefs. The Court has considered a lot 258 00:15:32,040 --> 00:15:36,000 Speaker 1: of cases involving the rights of Christians, but I don't 259 00:15:36,000 --> 00:15:39,840 Speaker 1: know of any until now involving the rights of Rastafarians. 260 00:15:40,360 --> 00:15:42,360 Speaker 4: Yeah, and the court's been very active in the area 261 00:15:42,360 --> 00:15:45,280 Speaker 4: of religion recently, and you know, generally as sided with 262 00:15:45,320 --> 00:15:48,400 Speaker 4: proponents of religious liberty. The facts of this case are 263 00:15:48,400 --> 00:15:52,160 Speaker 4: really pretty extreme and outrageous. In this case is brought 264 00:15:52,160 --> 00:15:56,040 Speaker 4: by a Rastafarian, Immey, who is suing a state prison 265 00:15:56,080 --> 00:15:58,960 Speaker 4: official under what's called the Religious Land Use in Institutional 266 00:15:59,000 --> 00:16:02,280 Speaker 4: Persons Act or our LUPA, and he claims that when 267 00:16:02,400 --> 00:16:05,320 Speaker 4: he was transferred to a new prison, the prison official 268 00:16:05,520 --> 00:16:09,360 Speaker 4: allegedly handcuffed him to a chair and actually shaved his head, 269 00:16:09,880 --> 00:16:11,760 Speaker 4: even though he told the guard that he had taken 270 00:16:11,760 --> 00:16:14,040 Speaker 4: a religious vow not to cut off his hair, which 271 00:16:14,040 --> 00:16:17,880 Speaker 4: he had honored for over a decade, and actually handed 272 00:16:17,880 --> 00:16:20,680 Speaker 4: the guard a copy of a Fifth Circuit decision holding 273 00:16:20,720 --> 00:16:23,720 Speaker 4: that cutting the hair of a Rastafarian inmate would violate 274 00:16:23,720 --> 00:16:27,760 Speaker 4: the inmate's religious liberties, so that the inmate brought suit 275 00:16:28,160 --> 00:16:32,880 Speaker 4: seeking monetary damages against the prison officials involved in this process. 276 00:16:33,320 --> 00:16:36,560 Speaker 4: So under a different law, the Religious Freedom Restoration Act, 277 00:16:36,840 --> 00:16:39,080 Speaker 4: the Supreme Court is held that inmates can get money 278 00:16:39,160 --> 00:16:44,040 Speaker 4: damages against federal officers who violate their religious liberties. And 279 00:16:44,120 --> 00:16:46,440 Speaker 4: so the basic questions whether the same rule would apply 280 00:16:46,480 --> 00:16:50,400 Speaker 4: to state officers under our LUPA the parallel statute, and 281 00:16:50,400 --> 00:16:52,240 Speaker 4: it would seem like the answer would have to be yes. 282 00:16:53,080 --> 00:16:55,440 Speaker 4: But the state argues that because our LUPA was passed 283 00:16:55,520 --> 00:17:00,240 Speaker 4: under Congress's spending clause power, where Congress generally attaches strings 284 00:17:00,280 --> 00:17:03,880 Speaker 4: to federal funding grants, the state argues that a different 285 00:17:03,960 --> 00:17:06,640 Speaker 4: rule applies because the state has never agreed to these 286 00:17:06,760 --> 00:17:10,120 Speaker 4: sorts of terms to be subjected to money damages suits. 287 00:17:10,359 --> 00:17:12,600 Speaker 4: And then the state also argues that if the court 288 00:17:12,640 --> 00:17:16,600 Speaker 4: accepts the inmate's position, it's going to only exacerbate the 289 00:17:16,640 --> 00:17:19,680 Speaker 4: shortage of people who are willing to serve as prison guards. 290 00:17:19,920 --> 00:17:22,440 Speaker 4: I'm not sure that that's going to be enough here. 291 00:17:22,520 --> 00:17:24,040 Speaker 4: I mean, I think that the facts of this case 292 00:17:24,080 --> 00:17:27,040 Speaker 4: in particular may weigh in the court, and the Trump 293 00:17:27,080 --> 00:17:31,240 Speaker 4: administration here is actually supporting the inmate in this case, 294 00:17:31,400 --> 00:17:33,359 Speaker 4: so that the state may have an uphill battle in 295 00:17:33,359 --> 00:17:33,840 Speaker 4: his hands. 296 00:17:33,880 --> 00:17:36,960 Speaker 1: But we'll see the only case I can remember recently 297 00:17:37,359 --> 00:17:40,600 Speaker 1: where religious rights didn't win at the Court was the 298 00:17:40,600 --> 00:17:44,560 Speaker 1: case you argued in one last term on the effort 299 00:17:44,600 --> 00:17:48,560 Speaker 1: to create the country's first faith based charter school. So 300 00:17:48,600 --> 00:17:51,240 Speaker 1: we'll see what this term brings. Let's turn now to 301 00:17:51,320 --> 00:17:55,040 Speaker 1: congressional maps, a hot topic lately. The Court is going 302 00:17:55,080 --> 00:17:58,119 Speaker 1: to hear a case involving Louisiana's map that could have 303 00:17:58,240 --> 00:18:05,600 Speaker 1: implications for elections dozens of congressional districts with predominantly minority populations. 304 00:18:05,960 --> 00:18:09,040 Speaker 1: And this case was already argued at the Supreme Court. 305 00:18:09,400 --> 00:18:12,880 Speaker 4: Yeah, so the case was argued in brief last term 306 00:18:13,119 --> 00:18:15,880 Speaker 4: and the Court couldn't reach a decision, so they set 307 00:18:15,920 --> 00:18:19,359 Speaker 4: it for reargument and consideration this term. And this case 308 00:18:19,359 --> 00:18:22,720 Speaker 4: really has sort of had a long and tortuous history already. 309 00:18:23,000 --> 00:18:27,200 Speaker 4: So after the twenty twenty census, Louisiana legislature, like many states, 310 00:18:27,480 --> 00:18:30,480 Speaker 4: went back and redrew its congressional maps, and the new 311 00:18:30,560 --> 00:18:34,600 Speaker 4: map it drew had one majority black district out of 312 00:18:34,680 --> 00:18:38,080 Speaker 4: six districts statewide. At that point, a group of black 313 00:18:38,160 --> 00:18:41,040 Speaker 4: voters brought suit against the state, arguing that the plan 314 00:18:41,440 --> 00:18:45,000 Speaker 4: and permissively diluted the votes of black residents in violation 315 00:18:45,119 --> 00:18:47,760 Speaker 4: of Section two of the Voting Rights Act because nearly 316 00:18:47,800 --> 00:18:50,199 Speaker 4: a third of the state's population is black. So the 317 00:18:50,240 --> 00:18:52,960 Speaker 4: lower courts ultimately ordered the state to draw a new map, 318 00:18:53,040 --> 00:18:56,600 Speaker 4: and the new map contained a second black majority district. 319 00:18:56,760 --> 00:18:59,159 Speaker 4: But this time a group of non black residents went 320 00:18:59,200 --> 00:19:01,800 Speaker 4: to federal court and argued that the twenty twenty four 321 00:19:01,880 --> 00:19:05,800 Speaker 4: map impermissibly took race into account in the other direction, 322 00:19:05,920 --> 00:19:08,560 Speaker 4: and so it was itself invalid. So the state went 323 00:19:08,600 --> 00:19:11,000 Speaker 4: to the Supreme Court, said it was between Iraq and 324 00:19:11,000 --> 00:19:13,199 Speaker 4: a hard place, and asked the Court to resolve it. 325 00:19:13,440 --> 00:19:15,399 Speaker 4: And as you noted, the Court was enabled to do 326 00:19:15,480 --> 00:19:17,960 Speaker 4: so last term. So it set up for reargument again 327 00:19:18,320 --> 00:19:21,600 Speaker 4: and basically up the ante by asking the parties to 328 00:19:21,640 --> 00:19:25,000 Speaker 4: brief the question of whether the state's intentional creation of 329 00:19:25,040 --> 00:19:28,000 Speaker 4: a second majority minority district to comply with the Voting 330 00:19:28,080 --> 00:19:31,800 Speaker 4: Rights Act actually violated the equal protection clause. So now 331 00:19:31,840 --> 00:19:34,040 Speaker 4: the Court is faced with the question that is sort 332 00:19:34,040 --> 00:19:36,320 Speaker 4: of long beleegud at the court in voting rights cases, 333 00:19:36,359 --> 00:19:37,840 Speaker 4: which is, how do you square the fact that you 334 00:19:37,880 --> 00:19:40,399 Speaker 4: have to take race into account to comply with the 335 00:19:40,440 --> 00:19:42,840 Speaker 4: protections of the Voting Rights Act with the fact that 336 00:19:42,880 --> 00:19:46,760 Speaker 4: the Constitution Protection Class generally prohibited states from taking race 337 00:19:46,800 --> 00:19:50,240 Speaker 4: into account and making important decisions, so this case could 338 00:19:50,280 --> 00:19:54,359 Speaker 4: definitely have a major effect on Section two litigation going forward. 339 00:19:54,680 --> 00:19:57,720 Speaker 4: The Government, for its part, argues that Section two's results 340 00:19:57,800 --> 00:20:02,800 Speaker 4: tests is unconstitutional requires the states to draw majority minority 341 00:20:02,840 --> 00:20:06,479 Speaker 4: districts where race predominates, and that basically, when a planet 342 00:20:06,480 --> 00:20:08,840 Speaker 4: passed to show to prevail under its view of the 343 00:20:08,880 --> 00:20:10,920 Speaker 4: Voting Rights Act, as it must show that the new 344 00:20:10,960 --> 00:20:15,600 Speaker 4: district is superior under race neutral districting principles. So the 345 00:20:15,680 --> 00:20:18,560 Speaker 4: Voting Rights Act is one area where we've seen some 346 00:20:18,640 --> 00:20:21,520 Speaker 4: consequential decisions in the past few years, and this is 347 00:20:21,560 --> 00:20:24,000 Speaker 4: a case that definitely should be followed closely. 348 00:20:24,840 --> 00:20:27,320 Speaker 1: The Court gutted part of the Voting Rights Act in 349 00:20:27,320 --> 00:20:31,439 Speaker 1: the Shelby County versus Holder case in twenty thirteen, and 350 00:20:32,040 --> 00:20:37,040 Speaker 1: some justices have questioned the constitutionality of race based districts. 351 00:20:37,240 --> 00:20:40,120 Speaker 1: A quote the challenges used here was one from Justice 352 00:20:40,160 --> 00:20:44,320 Speaker 1: Brett Kavanov. The authority to conduct race based cannot extend 353 00:20:44,359 --> 00:20:47,320 Speaker 1: indefinitely into the future. Does it seem as if the 354 00:20:47,320 --> 00:20:51,920 Speaker 1: Court is heading in that direction to get rid of 355 00:20:51,960 --> 00:20:54,480 Speaker 1: the consideration of race in map drilling? 356 00:20:54,960 --> 00:20:58,600 Speaker 4: Well, the hesitation, reluctance, and hostility to consideration of race 357 00:20:58,640 --> 00:21:00,760 Speaker 4: in a number of areas, including a permative action and 358 00:21:00,800 --> 00:21:04,280 Speaker 4: the like, has definitely been one of the sort of 359 00:21:04,400 --> 00:21:08,400 Speaker 4: emphasises of this court. Interestingly, the Court just a couple 360 00:21:08,440 --> 00:21:11,000 Speaker 4: of years ago, in a case out of Alabama, by 361 00:21:11,000 --> 00:21:13,680 Speaker 4: a five to four vote, upheld a map that was 362 00:21:13,800 --> 00:21:16,720 Speaker 4: challenged out of Alabama. So it would be, you know, 363 00:21:17,119 --> 00:21:20,520 Speaker 4: something of a right turn for the Court to go 364 00:21:20,560 --> 00:21:23,920 Speaker 4: ahead and validate Section two of the Voting Rights Act 365 00:21:23,960 --> 00:21:27,640 Speaker 4: on constitutional grounds more broadly, and we don't know. I think, 366 00:21:27,800 --> 00:21:29,600 Speaker 4: based on the fact that the Court was unable to 367 00:21:29,600 --> 00:21:33,200 Speaker 4: reach a decision last term in this case, it suggests 368 00:21:33,240 --> 00:21:36,160 Speaker 4: that the Justices are struggling. The fact that they've added 369 00:21:36,160 --> 00:21:39,399 Speaker 4: this broader constitutional question doesn't mean that the Justices have 370 00:21:39,480 --> 00:21:42,440 Speaker 4: to resolve it on that basis. I think if there's 371 00:21:42,600 --> 00:21:45,040 Speaker 4: anything we can sort of speculate at this point is 372 00:21:45,080 --> 00:21:47,960 Speaker 4: that the Justices are closely divided on this issue. 373 00:21:48,119 --> 00:21:51,159 Speaker 1: So the Court is going to hear another death penalty case. 374 00:21:51,400 --> 00:21:54,760 Speaker 1: It hurt a couple last term. This time it's about 375 00:21:54,800 --> 00:21:58,359 Speaker 1: what defendants have to show in order to prove that 376 00:21:58,400 --> 00:22:03,040 Speaker 1: they're mentally disabled and thus ineligible for the death penalty. 377 00:22:03,200 --> 00:22:06,200 Speaker 4: The death penally has actually been a pretty interesting area 378 00:22:06,320 --> 00:22:08,800 Speaker 4: for this court. Last term it had three death penalty 379 00:22:08,840 --> 00:22:12,160 Speaker 4: cases and the death row inmate won in all three 380 00:22:12,160 --> 00:22:14,760 Speaker 4: of those cases. And so this term, as you said, 381 00:22:14,840 --> 00:22:18,880 Speaker 4: it's revisiting the constitutional limits on the execution of intellectually 382 00:22:18,880 --> 00:22:23,679 Speaker 4: disabled individuals. In a case called Atkins versus Virginia, the 383 00:22:23,760 --> 00:22:26,320 Speaker 4: Court held at the Eighth Amendment prohibits the execution of 384 00:22:26,359 --> 00:22:30,480 Speaker 4: individuals who are intellectually disabled, which has generally been defined 385 00:22:30,480 --> 00:22:33,480 Speaker 4: to mean someone having an IQ of seventy or below. 386 00:22:33,920 --> 00:22:36,040 Speaker 4: And so the question in this case is what are 387 00:22:36,040 --> 00:22:40,080 Speaker 4: court's supposed to do when they're presented with multiple IQ scores, 388 00:22:40,400 --> 00:22:43,280 Speaker 4: one of which falls below the line. And in this case, 389 00:22:43,320 --> 00:22:47,320 Speaker 4: the inmate had multiple IQ scores of seventy five, seventy four, 390 00:22:47,480 --> 00:22:50,919 Speaker 4: seventy two, seventy eight, and seventy four again, and so 391 00:22:51,040 --> 00:22:54,120 Speaker 4: all five of these scores were above seventy, but one 392 00:22:54,119 --> 00:22:57,639 Speaker 4: of the scores, the seventy two, actually falls below the 393 00:22:57,720 --> 00:23:00,440 Speaker 4: line if you accept the standard range for error, which 394 00:23:00,440 --> 00:23:02,760 Speaker 4: would put his score at sixty nine. The Court of 395 00:23:02,800 --> 00:23:06,080 Speaker 4: Appeals nevertheless held that the death sentence should be set 396 00:23:06,119 --> 00:23:09,439 Speaker 4: aside the inmate argues that it was right and that 397 00:23:09,560 --> 00:23:12,520 Speaker 4: you could actually just look beyond the low IQ score 398 00:23:12,560 --> 00:23:15,560 Speaker 4: and if you looked sort of holistically at the evidence, 399 00:23:15,600 --> 00:23:20,119 Speaker 4: including testimony about the inmates intellectual disability, that it was 400 00:23:20,200 --> 00:23:24,800 Speaker 4: unconstitutional to execute him. But the state argues that the 401 00:23:24,880 --> 00:23:28,000 Speaker 4: fact that there are so many scores above seventy should 402 00:23:28,040 --> 00:23:31,280 Speaker 4: be in itself decisive, and that this is an area 403 00:23:31,320 --> 00:23:34,560 Speaker 4: where the courts should defer to the state's judgment, at 404 00:23:34,640 --> 00:23:38,320 Speaker 4: least where it's based on multiple ice Q scores about seventy. 405 00:23:38,840 --> 00:23:42,560 Speaker 4: So it's an interesting question. And again, I mean, this court, 406 00:23:42,680 --> 00:23:46,040 Speaker 4: you know, maybe a little bit against what some might expect, 407 00:23:46,119 --> 00:23:49,640 Speaker 4: has actually been more receptive to the claims of death 408 00:23:49,680 --> 00:23:52,359 Speaker 4: row inmates. But we'll see if less terms run of 409 00:23:52,440 --> 00:23:54,360 Speaker 4: successes carries over into this term. 410 00:23:54,560 --> 00:23:56,919 Speaker 1: The Court's going to be accepting more cases as the 411 00:23:57,000 --> 00:23:59,720 Speaker 1: term goes along. You have the shadow dock. It's so active. 412 00:24:00,080 --> 00:24:01,920 Speaker 1: But do you think that in the end this term 413 00:24:01,960 --> 00:24:04,680 Speaker 1: is going to be you know, the headlines afterwards will 414 00:24:04,720 --> 00:24:10,439 Speaker 1: be about the expansion or perhaps limitation of presidential power. 415 00:24:10,960 --> 00:24:13,720 Speaker 4: No question. One of the big sort of headline questions 416 00:24:13,760 --> 00:24:18,360 Speaker 4: of this term will be the exercise of executive power. 417 00:24:18,560 --> 00:24:21,640 Speaker 4: I mean, we have an administration that is boldly exercising 418 00:24:22,200 --> 00:24:25,000 Speaker 4: executive power across the number of fronts, and those cases 419 00:24:25,000 --> 00:24:27,479 Speaker 4: are now coming to the Supreme Court. So I think 420 00:24:27,720 --> 00:24:30,000 Speaker 4: that it's likely that that will be one of the 421 00:24:30,000 --> 00:24:33,840 Speaker 4: headlines of this term. Whether the headline is that the 422 00:24:33,880 --> 00:24:37,600 Speaker 4: President has succeeded in expanding executive power or that the 423 00:24:37,600 --> 00:24:41,480 Speaker 4: Supreme Court has pushed back against assertions of executive power, 424 00:24:41,800 --> 00:24:44,760 Speaker 4: we don't know. There are a number of really important 425 00:24:44,760 --> 00:24:47,760 Speaker 4: cases already on the docket, and as you indicated, there 426 00:24:47,760 --> 00:24:50,640 Speaker 4: are more cases in the pipeline, in the emergency docket 427 00:24:50,840 --> 00:24:52,800 Speaker 4: and otherwise, And if you go back over the last 428 00:24:52,800 --> 00:24:55,600 Speaker 4: couple of terms, you know many of the most important 429 00:24:55,600 --> 00:24:58,840 Speaker 4: cases are added to the Court's docket after this point 430 00:24:58,840 --> 00:25:00,800 Speaker 4: in time. So this is really I'm just the tip 431 00:25:00,800 --> 00:25:01,480 Speaker 4: of the iceberg. 432 00:25:01,960 --> 00:25:04,639 Speaker 1: Well, thanks for taking us through these major cases. Greg 433 00:25:04,840 --> 00:25:09,320 Speaker 1: that's former US Solicitor General Gregory Garr coming up. Justice 434 00:25:09,359 --> 00:25:13,119 Speaker 1: Thomas dis is precedent. I'm June Grosso and you're listening 435 00:25:13,119 --> 00:25:13,720 Speaker 1: to Bloomberg. 436 00:25:15,600 --> 00:25:19,400 Speaker 2: Just think of law as these cases as a series 437 00:25:19,440 --> 00:25:23,080 Speaker 2: of kate of cars on a long train, and you 438 00:25:23,240 --> 00:25:27,160 Speaker 2: just accept the train and you just add another car. 439 00:25:27,640 --> 00:25:30,000 Speaker 2: We just follow wherever it's going. We never go to 440 00:25:30,080 --> 00:25:33,439 Speaker 2: the front see who's driving the train, where's it going? 441 00:25:34,880 --> 00:25:38,200 Speaker 2: And you could go up there in the engine room 442 00:25:38,200 --> 00:25:40,600 Speaker 2: and find us an orangutang drive in the train, and 443 00:25:40,600 --> 00:25:43,520 Speaker 2: would you want to follow that just because it's a train. 444 00:25:44,320 --> 00:25:48,760 Speaker 1: Justice Clarence Thomas use that train metaphor to downplay the 445 00:25:48,800 --> 00:25:53,120 Speaker 1: importance of settled law or precedent into ciding new cases. 446 00:25:53,480 --> 00:25:56,680 Speaker 1: Thomas said he wouldn't follow precedent if it doesn't make 447 00:25:56,720 --> 00:25:57,640 Speaker 1: sense to him. 448 00:25:57,960 --> 00:25:59,800 Speaker 2: And I don't think that any of these cases that 449 00:25:59,840 --> 00:26:01,640 Speaker 2: have and decided are the gospel. 450 00:26:02,200 --> 00:26:06,080 Speaker 1: The Roberts Court has overturned precedents in at least twenty 451 00:26:06,119 --> 00:26:10,720 Speaker 1: five cases since two thousand and five, including the constitutional 452 00:26:10,800 --> 00:26:16,040 Speaker 1: right to abortion, race conscious college admissions, and judicial deference 453 00:26:16,080 --> 00:26:20,040 Speaker 1: to federal agencies, and in the upcoming term, the Court 454 00:26:20,040 --> 00:26:24,720 Speaker 1: will be considering challenges to several long standing precedents, like 455 00:26:24,800 --> 00:26:28,320 Speaker 1: the ninety year old president limiting the president's ability to 456 00:26:28,400 --> 00:26:33,119 Speaker 1: fire members of independent agencies, and a landmark nineteen eighty 457 00:26:33,160 --> 00:26:37,240 Speaker 1: six decision about the use of race in redistricting under 458 00:26:37,240 --> 00:26:41,760 Speaker 1: the Voting Rights Act. So are Thomas's comments dissing precedent 459 00:26:42,200 --> 00:26:45,440 Speaker 1: a sign of things to come. My guest is constitutional 460 00:26:45,480 --> 00:26:50,240 Speaker 1: law expert David super, a professor at Georgetown Law. David, 461 00:26:50,240 --> 00:26:53,320 Speaker 1: what was your reaction to Thomas's comments? 462 00:26:54,400 --> 00:26:59,560 Speaker 3: Justice Thomas's remarks were quite remarkable. He said that as 463 00:26:59,600 --> 00:27:03,919 Speaker 3: here in to precedent is perhaps overrated. He compared it 464 00:27:03,960 --> 00:27:07,880 Speaker 3: to a situation where people are riding a train without 465 00:27:08,200 --> 00:27:13,160 Speaker 3: knowing who's in the cabin driving the engine and suggested 466 00:27:13,280 --> 00:27:16,359 Speaker 3: that that might well be an orangutan, and we should 467 00:27:16,400 --> 00:27:20,399 Speaker 3: not take directions from an orangutan. I've never compared the 468 00:27:20,520 --> 00:27:23,720 Speaker 3: US Supreme Court to an orangutan, but he has apparently, 469 00:27:24,080 --> 00:27:27,960 Speaker 3: And he said that precedent may be something that one 470 00:27:28,040 --> 00:27:31,560 Speaker 3: person just bought up and everyone else said, yeah, let's 471 00:27:31,600 --> 00:27:34,399 Speaker 3: go along. And on that basis, he thinks that the 472 00:27:34,440 --> 00:27:38,240 Speaker 3: court needs to be more willing to overrule precedent unless 473 00:27:38,280 --> 00:27:39,600 Speaker 3: deferential to president. 474 00:27:39,960 --> 00:27:43,280 Speaker 1: When the Supreme Court justices have their confirmation hearings, they 475 00:27:43,320 --> 00:27:47,680 Speaker 1: all say, oh, you know, we're going to follow precedent. Yes, yes, yes, 476 00:27:47,760 --> 00:27:51,280 Speaker 1: And of course they don't in many cases explain the 477 00:27:51,320 --> 00:27:53,680 Speaker 1: importance of precedents in the law. 478 00:27:54,240 --> 00:27:59,840 Speaker 3: Well, Precedent is what makes the courts distinctive. Anybody can 479 00:28:00,160 --> 00:28:04,119 Speaker 3: side however they want at the moment. Why we listen 480 00:28:04,200 --> 00:28:07,480 Speaker 3: to the courts is because they are bound by the law, 481 00:28:07,880 --> 00:28:11,800 Speaker 3: and in the Anglo American system, the law is precedent. 482 00:28:11,880 --> 00:28:14,879 Speaker 3: We even have a fancy term for it, starry decisis, 483 00:28:15,320 --> 00:28:20,159 Speaker 3: and it is supposed to be what keeps unelected judges 484 00:28:20,520 --> 00:28:24,679 Speaker 3: from acting willfully and just pursuing their personal agenda. And 485 00:28:25,040 --> 00:28:29,720 Speaker 3: I find it exceedingly strange that perhaps the Court's most 486 00:28:29,800 --> 00:28:34,040 Speaker 3: vociferous originalist is taking this view, because if there is 487 00:28:34,240 --> 00:28:38,680 Speaker 3: one core principle of the original understanding of the courts 488 00:28:38,720 --> 00:28:42,160 Speaker 3: is that they were bound by precedent. That's the essence 489 00:28:42,280 --> 00:28:46,040 Speaker 3: of the common law system that England had for many 490 00:28:46,160 --> 00:28:50,640 Speaker 3: centuries before the founding of this country, and that originalists 491 00:28:50,680 --> 00:28:55,240 Speaker 3: like Justice Thomas say, should control how we decide things now. 492 00:28:55,600 --> 00:29:00,160 Speaker 3: There are important decisions that were handed down I have 493 00:29:00,280 --> 00:29:04,400 Speaker 3: six hundred years ago that decided difficult questions and that 494 00:29:04,520 --> 00:29:09,000 Speaker 3: no court since then has ever disputed. Just as Thomas 495 00:29:09,040 --> 00:29:13,280 Speaker 3: seems to suggest that that core original aspect of Anglo 496 00:29:13,280 --> 00:29:17,000 Speaker 3: American jurisprudence is irrelevant, he. 497 00:29:16,960 --> 00:29:19,440 Speaker 1: Also said, it's not the gospel, which I always thought 498 00:29:19,480 --> 00:29:22,520 Speaker 1: President was the Gospel. But as you mentioned, he in 499 00:29:22,560 --> 00:29:27,120 Speaker 1: a backhanded way, made fun of prior Supreme Court justices. 500 00:29:27,160 --> 00:29:30,800 Speaker 1: He said, the President, if it's totally stupid and that's 501 00:29:30,840 --> 00:29:33,280 Speaker 1: what they've decided, you don't go along with it just 502 00:29:33,360 --> 00:29:34,520 Speaker 1: because it's decided. 503 00:29:34,920 --> 00:29:38,479 Speaker 3: Well, it suggests that the current court is smart and 504 00:29:38,520 --> 00:29:44,400 Speaker 3: its predecessors are foolish, which is a remarkably condescending approach. 505 00:29:44,760 --> 00:29:49,480 Speaker 3: It's also an ahistorical approach. We've had many brilliant justices 506 00:29:49,880 --> 00:29:54,160 Speaker 3: on the Court. We've had many courts that historians regard 507 00:29:54,280 --> 00:29:58,320 Speaker 3: as all star courts, packed with brilliant legal minds, and 508 00:29:58,400 --> 00:30:02,560 Speaker 3: to suggest that they can compared to orangutans is disappointing. 509 00:30:03,120 --> 00:30:07,000 Speaker 1: This is not really anything new for Justice Thomas. The 510 00:30:07,080 --> 00:30:12,400 Speaker 1: late Justice Antonin Scalia told one of Thomas's biographers quote 511 00:30:12,640 --> 00:30:16,840 Speaker 1: he doesn't believe in starry, decisive period and Thomas has 512 00:30:16,920 --> 00:30:22,120 Speaker 1: also frequently suggested overturning landmark opinions in cases that are 513 00:30:22,120 --> 00:30:23,480 Speaker 1: not before the court. 514 00:30:23,680 --> 00:30:27,080 Speaker 3: Well, and it's important that Justice Clia was Justice Thomas's 515 00:30:27,120 --> 00:30:31,840 Speaker 3: best friend on the court and most frequent ally, But 516 00:30:32,400 --> 00:30:38,840 Speaker 3: unlike Justice Thomas, Justice Clia generally decided the cases that 517 00:30:38,920 --> 00:30:42,680 Speaker 3: were brought for him, whereas Justice Thomas for a long 518 00:30:42,760 --> 00:30:48,520 Speaker 3: time has written concurring or descending opinions inviting parties to 519 00:30:48,680 --> 00:30:53,040 Speaker 3: bring cases to the court. That departs from another important 520 00:30:53,080 --> 00:30:57,920 Speaker 3: aspect of originalism, which is that the courts are passive. 521 00:30:58,040 --> 00:31:00,600 Speaker 3: They take the cases that come to them, but they 522 00:31:00,640 --> 00:31:04,479 Speaker 3: don't go out trying to do affirmative policy making. Again, 523 00:31:04,560 --> 00:31:08,400 Speaker 3: that goes back hundreds and hundreds of years, and an 524 00:31:08,400 --> 00:31:13,240 Speaker 3: originalist like Justice Thomas should be particularly anxious to follow 525 00:31:13,520 --> 00:31:17,720 Speaker 3: the traditional role of the courts as passive deciders rather 526 00:31:17,840 --> 00:31:20,400 Speaker 3: than as policymakers with an agenda. 527 00:31:21,480 --> 00:31:25,600 Speaker 1: The Robert's Court has overturned around twenty five precedents, but 528 00:31:25,640 --> 00:31:28,560 Speaker 1: in May, the Chief Justice talked about how the Roberts 529 00:31:28,640 --> 00:31:33,680 Speaker 1: Court has overturned precedence at the lowest rate of recent courts. 530 00:31:33,880 --> 00:31:37,160 Speaker 1: A New York Times study found that the Roberts Court 531 00:31:37,200 --> 00:31:41,480 Speaker 1: averaged one point six reversals a term. But if you 532 00:31:41,560 --> 00:31:46,160 Speaker 1: look at averages, that ignores the significance of the precedents 533 00:31:46,200 --> 00:31:47,960 Speaker 1: they've overturned, doesn't it. 534 00:31:48,760 --> 00:31:53,440 Speaker 3: Well, it does, and it also is subject to a 535 00:31:53,480 --> 00:31:57,720 Speaker 3: lot of counting. There have been many, many, many cases 536 00:31:57,760 --> 00:32:01,520 Speaker 3: about abortion rights. After Row be weighed, do you say 537 00:32:01,520 --> 00:32:04,760 Speaker 3: that Bob's only overturned row. No, it made a whole 538 00:32:04,800 --> 00:32:08,560 Speaker 3: bunch of other cases irrelevant and wrong as well when 539 00:32:08,600 --> 00:32:12,680 Speaker 3: they said this or that restriction on abortion was unconstitutional. 540 00:32:12,800 --> 00:32:16,560 Speaker 3: So you have to make some very arbitrary choices in 541 00:32:16,680 --> 00:32:19,880 Speaker 3: doing account like that. There are going to be some 542 00:32:20,280 --> 00:32:25,000 Speaker 3: very very technical cases in admiralty law that may get 543 00:32:25,040 --> 00:32:28,480 Speaker 3: overturned because of new technology, and no one really knows 544 00:32:28,640 --> 00:32:32,240 Speaker 3: or cares. And then they're going to be sweeping decisions 545 00:32:32,360 --> 00:32:36,400 Speaker 3: about the Fourteenth Amendment about the separation of powers, and 546 00:32:36,640 --> 00:32:40,000 Speaker 3: that kind of counting game blurs all of them together. 547 00:32:40,720 --> 00:32:43,280 Speaker 1: The president that seems to have a target on it 548 00:32:43,400 --> 00:32:48,720 Speaker 1: this term is Humphrey's Executor, which protects members of independent agencies. 549 00:32:49,040 --> 00:32:51,800 Speaker 1: And just as Elena Kagan, in a descent from the 550 00:32:51,840 --> 00:32:57,000 Speaker 1: majority decision allowing the president to fire the last Democratic 551 00:32:57,360 --> 00:33:02,280 Speaker 1: member of the FTC, her colleagues are quote raring to 552 00:33:02,400 --> 00:33:05,800 Speaker 1: overturn Humphrey's Executor. Do you think that will be the 553 00:33:05,840 --> 00:33:07,280 Speaker 1: next precedent to go? 554 00:33:07,880 --> 00:33:11,800 Speaker 3: It will be unless they overturned something else first. Humphrey's 555 00:33:11,880 --> 00:33:14,800 Speaker 3: Executor is clearly on its way out. There's a real 556 00:33:14,840 --> 00:33:20,440 Speaker 3: irony here because Justices Gorsuch and Capitol have criticized lower 557 00:33:20,560 --> 00:33:24,240 Speaker 3: courts for not showing an up respect for Supreme Court president, 558 00:33:24,720 --> 00:33:28,960 Speaker 3: even when that precedent is handed down through the shadow docket, 559 00:33:29,160 --> 00:33:33,040 Speaker 3: without full briefing, without oral argument, without much of an opinion. 560 00:33:33,280 --> 00:33:38,200 Speaker 3: And here Justice Thomas, their partner is turning around and 561 00:33:38,440 --> 00:33:42,720 Speaker 3: saying that he would disrespect Supreme Court decisions even that 562 00:33:42,880 --> 00:33:47,560 Speaker 3: were fully argued, fully briefed, and the result of painstaking opinion. 563 00:33:47,800 --> 00:33:50,680 Speaker 3: I think the Justice need to decide whether the work 564 00:33:50,720 --> 00:33:53,280 Speaker 3: of the Supreme Court is or is not entitled to 565 00:33:53,440 --> 00:33:54,200 Speaker 3: great deference. 566 00:33:54,600 --> 00:33:57,960 Speaker 1: President Trump is asking the Justices to take his appeal 567 00:33:58,480 --> 00:34:02,760 Speaker 1: concerning his executive ordered to end birthright citizenship. If the 568 00:34:02,880 --> 00:34:06,320 Speaker 1: Justices take that case, does that say, yes, we're going 569 00:34:06,320 --> 00:34:12,600 Speaker 1: to overturn the precedent from eighteen ninety eight that supported birthright. 570 00:34:12,200 --> 00:34:16,560 Speaker 3: Citizenship, and as the President handed down by arguably the 571 00:34:16,560 --> 00:34:20,600 Speaker 3: most conservative Supreme Court in the nation's history, So it 572 00:34:20,640 --> 00:34:25,279 Speaker 3: would be quite remarkable to overturn that case. I think 573 00:34:25,360 --> 00:34:29,279 Speaker 3: the Justices will take this simply because it's a high 574 00:34:29,360 --> 00:34:34,600 Speaker 3: profile and very important matter that the President has been emphasizing. 575 00:34:34,920 --> 00:34:37,920 Speaker 3: I would have trouble imagining how they could overturn it. 576 00:34:38,160 --> 00:34:44,000 Speaker 3: The original opinion is based on analysis of historical uses 577 00:34:44,040 --> 00:34:46,719 Speaker 3: of terms going back hundreds of years. It's a very 578 00:34:46,800 --> 00:34:52,879 Speaker 3: model of originalism. Any aerious originalist approach would affirm the 579 00:34:52,960 --> 00:34:57,160 Speaker 3: plain language of the fourteenth Amendment and the decision from 580 00:34:57,160 --> 00:34:58,240 Speaker 3: the nineteenth century. 581 00:34:58,719 --> 00:35:04,000 Speaker 1: In a concurringinion in the Dobbs case, Thomas urged his 582 00:35:04,239 --> 00:35:09,160 Speaker 1: colleagues to reconsider all of the Court's substantive due process 583 00:35:09,320 --> 00:35:14,040 Speaker 1: precedence and explicitly called on the Court to overturn the 584 00:35:14,120 --> 00:35:18,439 Speaker 1: decisions that established the right to obtain contraception, the right 585 00:35:18,520 --> 00:35:22,320 Speaker 1: to same sex intimacy, and the right to same sex marriage. 586 00:35:22,920 --> 00:35:26,080 Speaker 1: And now the Court is being asked to overturn the 587 00:35:26,120 --> 00:35:30,920 Speaker 1: Obergerfeld decision, which legalized same sex marriage in a case 588 00:35:31,280 --> 00:35:36,160 Speaker 1: involving Kim Davis, the former Kentucky clerk who refused to 589 00:35:36,200 --> 00:35:40,120 Speaker 1: give a marriage license to a same sex couple because 590 00:35:40,120 --> 00:35:43,040 Speaker 1: of her religious beliefs. Do you think that same sex 591 00:35:43,320 --> 00:35:44,600 Speaker 1: marriage is in jeopardy? 592 00:35:45,360 --> 00:35:48,319 Speaker 3: It certainly is in jeopardy. It's hard to know what 593 00:35:48,400 --> 00:35:51,799 Speaker 3: the Court will do. Chief Justice Roberts has been insisting 594 00:35:52,000 --> 00:35:55,759 Speaker 3: that the judges look at cases on their merits and 595 00:35:55,840 --> 00:35:59,640 Speaker 3: are not pursuing a political agenda. If the Court turns 596 00:35:59,719 --> 00:36:05,440 Speaker 3: over for a decision handed down barely a decade ago 597 00:36:05,960 --> 00:36:10,760 Speaker 3: that has had this profounded impact on the nation's fabric. 598 00:36:11,239 --> 00:36:14,720 Speaker 3: I think his effort to persuade people that this Court 599 00:36:14,800 --> 00:36:17,520 Speaker 3: is anything other than a super legislature will fail. 600 00:36:17,880 --> 00:36:20,400 Speaker 1: I mean, do you think Thomas with these statements as 601 00:36:20,440 --> 00:36:23,840 Speaker 1: an outlier that the other justices are sort of cringing 602 00:36:24,040 --> 00:36:25,160 Speaker 1: when they hear them. 603 00:36:25,600 --> 00:36:29,040 Speaker 3: I imagine the Chief Justice was cringing all the way 604 00:36:29,120 --> 00:36:33,880 Speaker 3: through reading accounts of this, because Justice Thomas is so 605 00:36:34,040 --> 00:36:38,600 Speaker 3: overtly politicizing the court. But Justice Thomas is winning a 606 00:36:38,640 --> 00:36:42,440 Speaker 3: lot more cases than he's losing these days, So it 607 00:36:42,440 --> 00:36:45,640 Speaker 3: would seem that a number of other justices are pretty 608 00:36:45,680 --> 00:36:49,000 Speaker 3: comfortable with this approach. But I think, first and foremost 609 00:36:49,080 --> 00:36:52,400 Speaker 3: the Chief but certainly also Justice Barrett, would rather we 610 00:36:52,520 --> 00:36:57,680 Speaker 3: not be this explicit about the Court pursuing its own agenda. 611 00:36:57,840 --> 00:37:00,719 Speaker 3: But Justice Thomas, I guess, is still he's reached the 612 00:37:00,760 --> 00:37:03,600 Speaker 3: point where he sees no reason to be secretive about it. 613 00:37:03,800 --> 00:37:06,439 Speaker 3: He's got a super majority, he can lose a very 614 00:37:06,440 --> 00:37:10,200 Speaker 3: conservative justice and still win a case. And though he's 615 00:37:10,480 --> 00:37:13,440 Speaker 3: prepared to dispense with pretense, And why. 616 00:37:13,239 --> 00:37:15,680 Speaker 1: Do you say Justice Barrett in particular. 617 00:37:16,200 --> 00:37:20,160 Speaker 3: Well, she's given a couple of interviews lately in which 618 00:37:20,320 --> 00:37:24,000 Speaker 3: she said that we're not at a constitutional crisis and 619 00:37:24,120 --> 00:37:27,719 Speaker 3: things are working more or less ordinarily, and they sort 620 00:37:27,760 --> 00:37:32,480 Speaker 3: of downplaying the importance of what's happening and seems to 621 00:37:32,520 --> 00:37:36,400 Speaker 3: suggest that what we're doing is simply a technical act 622 00:37:36,480 --> 00:37:39,440 Speaker 3: of judging, and Justice Thomas is saying, no, I'm not 623 00:37:39,480 --> 00:37:42,240 Speaker 3: doing technical judging. I'm getting rid of the stupid stuff. 624 00:37:42,560 --> 00:37:45,640 Speaker 1: Well, we're off to a new start on Monday, and 625 00:37:45,680 --> 00:37:49,799 Speaker 1: we'll see if any precedents are overturned this term. Thanks 626 00:37:49,840 --> 00:37:53,680 Speaker 1: so much, David. That's Professor David Super of Georgetown Law. 627 00:37:53,920 --> 00:37:56,240 Speaker 1: And that's it for this edition of The Bloomberg Law Show. 628 00:37:56,560 --> 00:37:58,920 Speaker 1: Remember you can always get the latest legal news on 629 00:37:58,960 --> 00:38:03,239 Speaker 1: our Bloomberg Law pop. You can find them on Apple Podcasts, Spotify, 630 00:38:03,440 --> 00:38:08,479 Speaker 1: and at www dot Bloomberg dot com, slash podcast, Slash Law, 631 00:38:08,880 --> 00:38:11,440 Speaker 1: And remember to tune into The Bloomberg Law Show every 632 00:38:11,520 --> 00:38:15,400 Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso 633 00:38:15,560 --> 00:38:17,160 Speaker 1: and you're listening to Bloomberg