WEBVTT - New SCOTUS Term & Thomas Disses Precedent (Podcast) 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Brossel from Bloomberg Radio. 0:00:10.039 --> 0:00:14.040 Honorable the Chief Justice and the Associate Justices of the 0:00:14.080 --> 0:00:18.440 Supreme Court of the United States. Oh yay, oh yay, 0:00:18.920 --> 0:00:19.480 Oh yay. 0:00:20.280 --> 0:00:23.599 The new Supreme Court term begins on Monday, and it 0:00:23.720 --> 0:00:29.720 promises to lead to several blockbuster decisions on the docket tariffs, 0:00:29.920 --> 0:00:36.120 voting rights, religion, transgender rights, copyright and capital punishment, and 0:00:36.200 --> 0:00:40.600 looming over it all, several tests of President Trump's attempts 0:00:40.640 --> 0:00:44.960 to expand executive power. My guest is former United States 0:00:44.960 --> 0:00:49.000 Solicitor General Gregory Garr, a partner at Latham and Watkins. 0:00:49.440 --> 0:00:51.960 Greg let's start with one of the biggest cases of 0:00:52.000 --> 0:00:55.720 the term, where trillions of dollars in trade are at stake, 0:00:56.200 --> 0:01:01.000 as well as the extent of the president's authority away tariffs. 0:01:01.920 --> 0:01:04.320 We could end up being a third World country. 0:01:04.680 --> 0:01:08.760 Lower courts have ruled that Trump overstepped his authority in 0:01:08.840 --> 0:01:12.000 imposing the tariffs, but now it will be up to 0:01:12.040 --> 0:01:14.040 the Supreme Court to decide. 0:01:14.640 --> 0:01:19.039 It's a very important decision, and frankly, if they make 0:01:19.080 --> 0:01:22.240 the wrong decision, it would be a devastation for our country. 0:01:22.680 --> 0:01:25.360 We've taken in trillions of dollars. 0:01:25.520 --> 0:01:27.160 Greig, what are the issues here? 0:01:27.600 --> 0:01:31.800 So this case involves a challenge brought by small businesses 0:01:31.840 --> 0:01:36.160 to President Trump's tariff policy imposing tariffs on products from 0:01:36.200 --> 0:01:39.520 companies around the world. Importantly, in this case, the president 0:01:39.560 --> 0:01:43.360 doesn't assert inherent executive power to impose the tariffs, and 0:01:43.440 --> 0:01:46.520 said he claims that Congress granted him the power under 0:01:46.520 --> 0:01:50.440 a fifty year old statute called the International Emergency Economic 0:01:50.480 --> 0:01:53.720 Powers Act, or AEPA, and Section seventeen oh two of 0:01:53.800 --> 0:01:57.280 AEPA has a long list of things that the president 0:01:57.360 --> 0:02:01.240 can do if he declares an emergency, as President Trump 0:02:01.320 --> 0:02:05.160 did here on the basis of foreign trade deficits and 0:02:05.200 --> 0:02:08.280 the Futonol crisis as to certain countries. So when the 0:02:08.320 --> 0:02:12.160 president declares such an emergency, Congress authorized him to do 0:02:12.200 --> 0:02:16.240 a number of things, including to quote unquote regulate the 0:02:16.280 --> 0:02:21.760 importation of goods. So this statue doesn't mention tariffs expressly. 0:02:22.040 --> 0:02:25.200 Before this year, no president in aiba's fifty year history 0:02:25.240 --> 0:02:29.120 had ever invoked it to impose tariffs, and Congress has 0:02:29.120 --> 0:02:33.639 always explicitly imposed limitations on the exercise of tariffs when 0:02:33.639 --> 0:02:37.560 it's granted that power explicitly. But the President claims that 0:02:37.600 --> 0:02:41.440 the broad reference to regulate in this statute does authorize 0:02:41.520 --> 0:02:44.400 him to impose the tariffs. So far, he's lost that 0:02:44.520 --> 0:02:47.560 argument in each of the lower courts that has considered it, 0:02:47.639 --> 0:02:50.600 but the case is moving to the Supreme Court. And 0:02:50.639 --> 0:02:54.359 one of the signature projects of the Roberts Court has 0:02:54.360 --> 0:02:57.840 been the development of the so called major Questions doctrine, 0:02:57.880 --> 0:03:02.120 which is built on the age old principle that Congress 0:03:02.200 --> 0:03:06.160 does not hide elephants in mouseholes. So a couple of 0:03:06.240 --> 0:03:10.160 years ago, the Supreme Court in Biden versus Nebraska held 0:03:10.200 --> 0:03:14.120 the Department of Education lacked authority to institute sweeping student 0:03:14.200 --> 0:03:18.239 loan forgiveness on the basis of a general emergency language 0:03:18.720 --> 0:03:21.280 in the Hero's Act. And before then it held in 0:03:21.320 --> 0:03:24.120 a different case that the EPA couldn't rely on a 0:03:24.160 --> 0:03:27.119 general provision of the Clean Air Act to enforce sweeping 0:03:27.560 --> 0:03:31.800 climate change regulation. And the challengers in this case essentially 0:03:31.880 --> 0:03:35.400 argued that the same principle compels the conclusion that Ayapa's 0:03:35.440 --> 0:03:39.320 general reference to regulate can't be interpreted to authorize the 0:03:39.480 --> 0:03:42.000 President to impose what would amount to one of the 0:03:42.000 --> 0:03:45.760 biggest text increases in US history, sort of the elephant 0:03:46.040 --> 0:03:50.040 of all elephants. Now, in response, the administration claims that 0:03:50.320 --> 0:03:53.120 the Court has never applied the major Questions doctrine to 0:03:53.280 --> 0:03:56.840 the foreign affairs context, and that in that context, the 0:03:56.880 --> 0:04:00.520 Court should presume that Congress would give the president more leeway, 0:04:00.920 --> 0:04:04.320 which is actually something that Justice Kavanaugh suggested in a 0:04:04.360 --> 0:04:08.400 concurring opinion last year. Nevertheless, it seems hard to square 0:04:08.440 --> 0:04:11.960 the administration's position in this case with the application of 0:04:12.000 --> 0:04:15.680 the major question doctrine in other cases, particularly given that 0:04:15.800 --> 0:04:20.080 few presidential acts have had such a momentous economic sweep 0:04:20.240 --> 0:04:23.680 as the president's tariff program has. So this is a 0:04:23.800 --> 0:04:26.560 very big power he's asserting, and you know, we're all 0:04:26.600 --> 0:04:30.160 waiting to see how the Court reacts to this particular assertion. 0:04:30.760 --> 0:04:33.160 Well, the case is the Court is going to consider 0:04:33.320 --> 0:04:37.640 this term. Do you think that this tariff's case presents 0:04:37.680 --> 0:04:43.480 the most significant test of Trump's attempts to expand presidential power. 0:04:44.320 --> 0:04:47.000 Well, this case is different, and that again, it really 0:04:47.160 --> 0:04:51.520 just concerns the scope of the authority that Congress granted. 0:04:51.920 --> 0:04:54.000 In other cases that I think we'll talk about the 0:04:54.080 --> 0:04:58.880 question is the president's assertion of his own inherent constitutional authority. 0:04:59.240 --> 0:05:01.200 But this case, it really just boils down to a 0:05:01.240 --> 0:05:04.200 question of what Congress delegated. So I mean, even if 0:05:04.279 --> 0:05:08.080 the administration did win this case, it would still lead 0:05:08.200 --> 0:05:11.320 to Congress the prerogative to change the law. On the 0:05:11.320 --> 0:05:14.039 other hand, the Court might hold, again, following its major 0:05:14.160 --> 0:05:18.760 questions cases that Congress simply didn't delegate this elephant to 0:05:18.800 --> 0:05:19.280 begin with. 0:05:19.520 --> 0:05:22.599 Okay, So going on to a couple of other cases 0:05:22.720 --> 0:05:26.480 that set up tests of presidential power over federal agencies 0:05:26.560 --> 0:05:30.000 that have been independent. They involved Trump firing a member 0:05:30.040 --> 0:05:32.920 of the Federal Trade Commission, Rebecca Slaughter, and a Federal 0:05:32.960 --> 0:05:36.720 Reserve Board governor Lisa Cook, slightly different issues. So let's 0:05:36.720 --> 0:05:41.000 start with the FTC commissioner and the law there that 0:05:41.120 --> 0:05:45.120 says commissioners can only be removed for cause, right. 0:05:44.960 --> 0:05:46.880 And this is one of the cases where the president 0:05:46.920 --> 0:05:51.080 is asserting his own inherent authority and Congress has imposed 0:05:51.080 --> 0:05:54.760 a limitation on the president's removal authority with respective heads 0:05:54.760 --> 0:05:58.320 of the Federal Trade Commission and requires the President to 0:05:58.360 --> 0:06:02.599 show cause things like malfeasance or neglect of duty or 0:06:02.640 --> 0:06:05.560 the like before he can actually remove the official. And 0:06:05.600 --> 0:06:09.400 in this case, the president removed the official Rebecca Slaughter 0:06:09.520 --> 0:06:13.920 commissioner of the FTC simply because he disagreed with her 0:06:14.200 --> 0:06:16.919 as a matter of policy. So this case tees up 0:06:16.960 --> 0:06:21.000 a challenge to a nineteen thirty five decision called Humphrey's Executor, 0:06:21.160 --> 0:06:24.480 where the Court upheld the Congress's in position of a 0:06:24.480 --> 0:06:28.640 four cause requirement on the president's removal of commissioners of 0:06:28.680 --> 0:06:31.840 the FTC. So it's basically just a redo and a 0:06:31.960 --> 0:06:36.640 chance for the Supreme Court to reconsider it's Humphrey's Executor precedent. 0:06:36.800 --> 0:06:39.640 The administration here is arguing, first of all, that the 0:06:39.680 --> 0:06:42.960 FTC has changed a lot since the day of Humphrey's Executor. 0:06:42.960 --> 0:06:46.240 In essence, this is not your grandfather's FTC. It's got 0:06:46.279 --> 0:06:50.760 a lot more executive authority, and so whatever constitutional basis 0:06:50.800 --> 0:06:53.560 the Court had for its decision in Humphrey's Executor, that 0:06:53.600 --> 0:06:58.360 shouldn't apply to the FTC today. The administration also argues 0:06:58.440 --> 0:07:00.680 that if the Court doesn't accept that, it should just 0:07:00.720 --> 0:07:04.640 go ahead and overrule the Humphreys Executor decision, which is 0:07:04.680 --> 0:07:08.120 something a number of the more conservative justices have expressed 0:07:08.120 --> 0:07:12.240 a willingness to do in recent years. And the administration 0:07:12.360 --> 0:07:14.440 is also arguing that, you know, even if the president 0:07:14.480 --> 0:07:17.400 did do something wrong here, a court couldn't actually order 0:07:17.440 --> 0:07:21.280 the reinstatement of the official miss slaughter. Here the only 0:07:21.360 --> 0:07:24.080 remedy would be one for back pay, which is actually 0:07:24.160 --> 0:07:27.239 the remedy that was sought in the Humphreys executor case. 0:07:27.480 --> 0:07:31.640 So this is a major test of executive power. And really, 0:07:31.800 --> 0:07:34.880 although the case arises in the context of firing an individual, 0:07:35.360 --> 0:07:38.760 ultimately it's about the president seeking to gain control of 0:07:38.840 --> 0:07:42.240 so called independent agencies by being able to place his 0:07:42.360 --> 0:07:45.320 own preferred heads of those agencies in place. 0:07:46.040 --> 0:07:49.080 So the Court has been chipping away at Humphrey's Executor 0:07:49.440 --> 0:07:53.000 for a while, and Justice Elena Keigan said in one 0:07:53.000 --> 0:07:55.560 of her recent decisions that you know, they're raring to 0:07:55.600 --> 0:07:58.720 get rid of Humphrey's executor. Do you think Humphrey's executor 0:07:58.800 --> 0:07:59.840 can survive this? 0:08:01.120 --> 0:08:03.040 You know, it sure seems like they are raring to 0:08:03.040 --> 0:08:04.960 get rid of it. And you know, I probably would 0:08:05.040 --> 0:08:07.640 put my money on the side of it not surviving. 0:08:08.080 --> 0:08:10.960 That said, I mean, it would be fairly easy for 0:08:11.040 --> 0:08:13.600 the court to say that the FDC today is much 0:08:13.600 --> 0:08:16.640 different than the FDC in Humphrey's Executor time, and so 0:08:16.840 --> 0:08:19.720 to you know, further narrow Humphrey's executor. But I do 0:08:19.720 --> 0:08:22.360 think it's the case that the justices probably have just 0:08:22.440 --> 0:08:26.160 had enough, So I think Humphrey's executors' day's maybe number. 0:08:26.640 --> 0:08:29.840 The Court refused to let Slaughter return to her job 0:08:30.000 --> 0:08:33.480 as the litigation goes forward, and that sets it apart 0:08:33.480 --> 0:08:37.400 from the next case we'll talk about involving Trump's attempts 0:08:37.480 --> 0:08:41.400 to fire Federal Reserve Board Governor Lisa Cook. And this 0:08:41.520 --> 0:08:45.439 week the Court said that Trump can't fire Cook as 0:08:45.480 --> 0:08:49.920 the litigation is proceeding. Is that different significant? 0:08:50.120 --> 0:08:51.960 Yeah? I think it is. I mean it's the one 0:08:52.040 --> 0:08:55.240 time among all the other officials that the President has 0:08:55.240 --> 0:08:58.760 fired that the Supreme Court has declined to grant the 0:08:58.800 --> 0:09:02.440 administration's request us to permit it to actually remove the 0:09:02.440 --> 0:09:05.600 official once and for all. And instead, what the Supreme 0:09:05.600 --> 0:09:08.360 Court did here was set the case for argument on 0:09:08.400 --> 0:09:13.000 the administration's emergency request in January. Cook's case is different. 0:09:13.080 --> 0:09:15.360 Cook is a member of the Board of Governors of 0:09:15.360 --> 0:09:18.559 the Federal Reserve, and here the President is in claiming 0:09:18.600 --> 0:09:21.480 that he had the right to fire Cook for any reason. 0:09:21.840 --> 0:09:25.080 He claims that he had cause based on allegations that 0:09:25.120 --> 0:09:28.000 she had engaged in mortgage fraud before she became a 0:09:28.040 --> 0:09:30.480 member of the FED. So that's one way in which 0:09:30.520 --> 0:09:33.240 the case is different than the Slaughter case. And then 0:09:33.240 --> 0:09:37.199 also the Supreme Court has indicated in prior opinions that 0:09:37.360 --> 0:09:39.880 the FED may be different and that it's what the 0:09:39.880 --> 0:09:44.040 Supreme Court called a uniquely structured in quasi private entity 0:09:44.400 --> 0:09:47.200 with the unique history. So even if the Court is 0:09:47.400 --> 0:09:50.120 poised to overrule Humphrey's executor in the case of an 0:09:50.160 --> 0:09:53.439 FDC official, it's not at all clear that the Court 0:09:53.559 --> 0:09:56.280 is poised to reach anything like that result in the 0:09:56.320 --> 0:10:00.120 context of the FED, which I think many believe is 0:10:00.120 --> 0:10:04.320 is uniquely important in terms of its insulation from immediate 0:10:04.400 --> 0:10:05.480 presidential control. 0:10:05.760 --> 0:10:09.560 Let's turn to a business case where Cox Communications is 0:10:09.640 --> 0:10:13.360 trying to overturn a one billion dollar verdict in a 0:10:13.400 --> 0:10:14.880 suit by the music industry. 0:10:15.440 --> 0:10:18.839 This case involves the important copyright question of whether an 0:10:18.840 --> 0:10:22.920 Internet service provider can be held contributorily liable for its 0:10:22.960 --> 0:10:27.240 customers act of copyright infringement. So the Internet service provider 0:10:27.440 --> 0:10:32.320 allows streaming and someone at his home improperly downloads music. 0:10:32.640 --> 0:10:35.280 The Court of Appeals held that a culpable intent to 0:10:35.320 --> 0:10:40.120 facilitate infringement could be inferred simply on the basis that 0:10:40.200 --> 0:10:44.000 the Internet service provider continued to provide services after it 0:10:44.080 --> 0:10:48.520 knew that those services were being used to commit direct infringement. 0:10:48.720 --> 0:10:51.880 And what the challengers argued here, pointing to prior Supreme 0:10:51.920 --> 0:10:55.000 Court present in this area, is that near knowledge of 0:10:55.040 --> 0:10:59.959 an actual infringing use is insufficient to impose secondary liability 0:11:00.160 --> 0:11:03.120 on the seller of goods or services, and that instead 0:11:03.679 --> 0:11:07.960 what the copyright infringement law requires is a culpable intent 0:11:08.040 --> 0:11:11.560 to facilitate direct infringement, when that would be like evidence 0:11:11.600 --> 0:11:15.040 that the merchant urged another to infringe or actually set 0:11:15.120 --> 0:11:19.440 up a platform that lacked any significant non infringing uses 0:11:19.800 --> 0:11:24.400 anything apart from that, The internet service provider Coxcommunication here 0:11:24.920 --> 0:11:28.280 argues it would create a substantial disincentive for the provision 0:11:28.280 --> 0:11:31.800 of universal Internet service, which could affect all of us, 0:11:31.880 --> 0:11:33.840 or at least anyone in a home or a teenager 0:11:34.120 --> 0:11:35.880 has improperly downloaded music. 0:11:36.200 --> 0:11:39.800 Yeah, Cox Communication argued that Grandma will be thrown off 0:11:39.800 --> 0:11:45.079 the Internet because Junior visited and illegally downloaded songs. Coming 0:11:45.160 --> 0:11:49.439 up next more with Gregory gar on transgender rights, religion 0:11:49.559 --> 0:11:53.319 and voting maps. I'm June Grosso and you're listening to Bloomberg. 0:11:54.720 --> 0:11:59.040 Lindsay Heacox is a transgender woman who participated in club 0:11:59.160 --> 0:12:03.120 level running soccer at Boise State University and believes she 0:12:03.160 --> 0:12:06.280 should be able to play sports like everyone else. 0:12:06.520 --> 0:12:09.720 I don't even think most of my teammates would even 0:12:09.760 --> 0:12:10.240 think of. 0:12:10.200 --> 0:12:14.320 Me as trans. I just look like a regular girl. 0:12:14.800 --> 0:12:18.040 But in twenty twenty, Idaho passed the first of its 0:12:18.160 --> 0:12:22.800 kind law barring transgender women and girls from participating on 0:12:22.920 --> 0:12:26.920 female sports teams. A federal appellate court ruled that the 0:12:27.000 --> 0:12:31.359 ban violated the Equal Protection Clause and couldn't be enforced. 0:12:31.760 --> 0:12:35.080 But now Hee Cox's case, along with that of a 0:12:35.160 --> 0:12:39.640 fifteen year old transgender girl from West Virginia, is before 0:12:39.720 --> 0:12:43.240 the Supreme Court. I've been talking to former US Solicitor 0:12:43.360 --> 0:12:47.400 General Gregory Garr, a partner at Letham and Watkins. Greg 0:12:47.440 --> 0:12:50.520 These are two of the most closely watched cases of 0:12:50.559 --> 0:12:53.760 the term where the Court is going to decide whether 0:12:54.000 --> 0:12:58.280 states can ban transgender women and girls from competing on 0:12:58.520 --> 0:13:03.280 female athletic teams. The Ninth Circuit blocked Idaho's ban based 0:13:03.320 --> 0:13:07.120 on the Equal Protection Clause, but the Fourth Circuit blocked 0:13:07.200 --> 0:13:11.560 West Virginia's ban based on Title nine, which prohibits sex 0:13:11.640 --> 0:13:17.120 discrimination in federally funded educational programs, tell us about the issues. 0:13:16.800 --> 0:13:19.400 Here, so it wouldn't be a Supreme Court term with that. 0:13:19.480 --> 0:13:21.800 A return to the culture wars in this case definitely 0:13:21.880 --> 0:13:25.040 presents that, and the cases from both circuits do present 0:13:25.080 --> 0:13:27.800 the different questions of the equal Protection Clause in Title 0:13:27.920 --> 0:13:30.720 nine and challenges to the validity of state laws that 0:13:30.800 --> 0:13:34.520 prohibit transgender girls and women from competing in girls and 0:13:34.559 --> 0:13:38.000 women's sports. These are laws that I think about half 0:13:38.040 --> 0:13:41.400 of the states have, and the main legal question in 0:13:41.440 --> 0:13:44.880 the case is whether it's sex discrimination when a state 0:13:45.000 --> 0:13:50.679 mandates that only biological females can compete in female sports. 0:13:51.160 --> 0:13:55.400 Both cases involve transgender girls who want to compete on 0:13:55.720 --> 0:14:00.000 female cross country teams. So last year, as you remember, 0:14:00.160 --> 0:14:02.920 in US versus Scrimti, the Court held that a Tennessee 0:14:03.000 --> 0:14:07.320 law banning puberty blockers and homeowned therapy for transgender miners 0:14:07.559 --> 0:14:11.360 did not engage in sex based discrimination, violating the Equal 0:14:11.360 --> 0:14:14.640 Protection Clause, and it seems likely that the courtal reach 0:14:14.679 --> 0:14:17.720 a similar conclusion here. In fact, picking up on Justice 0:14:17.760 --> 0:14:20.960 Ginsberg's own writings, the government argues that the laws here 0:14:21.280 --> 0:14:25.160 simply take into account the physical differences between men and women, 0:14:25.200 --> 0:14:28.880 and that therefore they don't really engage in impermissible discrimination 0:14:29.320 --> 0:14:32.320 to begin with. Now that plaintiffs sort of counter with 0:14:32.480 --> 0:14:35.920 the Supreme Court's decision in boss Stock versus Clayton County, 0:14:36.240 --> 0:14:38.640 where the Court held the discrimination based on gender or 0:14:38.720 --> 0:14:42.880 sexual identity is discrimination on the basis of sex under 0:14:42.960 --> 0:14:45.880 Title seven. But the Supreme Court distinguished and I think 0:14:45.960 --> 0:14:49.720 limited Bostoc in the Sucurmety case last year, and I 0:14:49.720 --> 0:14:53.720 think that challengers probably have a hard argument in pushing 0:14:53.800 --> 0:14:57.680 Bostok to the Supreme Court in this case. The supporters 0:14:57.840 --> 0:15:02.120 of these laws also argue that allowing biological males to 0:15:02.160 --> 0:15:04.720 compete in women's sports would defeat the whole purpose of 0:15:04.800 --> 0:15:07.400 Title nine. So you know, this is again one of 0:15:07.400 --> 0:15:09.760 these cases that really sort of hits hard on the 0:15:09.800 --> 0:15:12.680 culture wars, and the Court I think will be following 0:15:12.680 --> 0:15:15.520 out Bonnette's decision last year in Scrematti and we'll see 0:15:15.560 --> 0:15:16.000 what it does. 0:15:16.320 --> 0:15:19.120 And it also wouldn't be a Supreme Court term without 0:15:19.160 --> 0:15:23.320 a religious rights case. A Rastafarian wants to suit prison 0:15:23.520 --> 0:15:28.480 officials in Louisiana who forcibly shaved him bald in violation 0:15:28.600 --> 0:15:32.040 of his religious beliefs. The Court has considered a lot 0:15:32.040 --> 0:15:36.000 of cases involving the rights of Christians, but I don't 0:15:36.000 --> 0:15:39.840 know of any until now involving the rights of Rastafarians. 0:15:40.360 --> 0:15:42.360 Yeah, and the court's been very active in the area 0:15:42.360 --> 0:15:45.280 of religion recently, and you know, generally as sided with 0:15:45.320 --> 0:15:48.400 proponents of religious liberty. The facts of this case are 0:15:48.400 --> 0:15:52.160 really pretty extreme and outrageous. In this case is brought 0:15:52.160 --> 0:15:56.040 by a Rastafarian, Immey, who is suing a state prison 0:15:56.080 --> 0:15:58.960 official under what's called the Religious Land Use in Institutional 0:15:59.000 --> 0:16:02.280 Persons Act or our LUPA, and he claims that when 0:16:02.400 --> 0:16:05.320 he was transferred to a new prison, the prison official 0:16:05.520 --> 0:16:09.360 allegedly handcuffed him to a chair and actually shaved his head, 0:16:09.880 --> 0:16:11.760 even though he told the guard that he had taken 0:16:11.760 --> 0:16:14.040 a religious vow not to cut off his hair, which 0:16:14.040 --> 0:16:17.880 he had honored for over a decade, and actually handed 0:16:17.880 --> 0:16:20.680 the guard a copy of a Fifth Circuit decision holding 0:16:20.720 --> 0:16:23.720 that cutting the hair of a Rastafarian inmate would violate 0:16:23.720 --> 0:16:27.760 the inmate's religious liberties, so that the inmate brought suit 0:16:28.160 --> 0:16:32.880 seeking monetary damages against the prison officials involved in this process. 0:16:33.320 --> 0:16:36.560 So under a different law, the Religious Freedom Restoration Act, 0:16:36.840 --> 0:16:39.080 the Supreme Court is held that inmates can get money 0:16:39.160 --> 0:16:44.040 damages against federal officers who violate their religious liberties. And 0:16:44.120 --> 0:16:46.440 so the basic questions whether the same rule would apply 0:16:46.480 --> 0:16:50.400 to state officers under our LUPA the parallel statute, and 0:16:50.400 --> 0:16:52.240 it would seem like the answer would have to be yes. 0:16:53.080 --> 0:16:55.440 But the state argues that because our LUPA was passed 0:16:55.520 --> 0:17:00.240 under Congress's spending clause power, where Congress generally attaches strings 0:17:00.280 --> 0:17:03.880 to federal funding grants, the state argues that a different 0:17:03.960 --> 0:17:06.640 rule applies because the state has never agreed to these 0:17:06.760 --> 0:17:10.120 sorts of terms to be subjected to money damages suits. 0:17:10.359 --> 0:17:12.600 And then the state also argues that if the court 0:17:12.640 --> 0:17:16.600 accepts the inmate's position, it's going to only exacerbate the 0:17:16.640 --> 0:17:19.680 shortage of people who are willing to serve as prison guards. 0:17:19.920 --> 0:17:22.440 I'm not sure that that's going to be enough here. 0:17:22.520 --> 0:17:24.040 I mean, I think that the facts of this case 0:17:24.080 --> 0:17:27.040 in particular may weigh in the court, and the Trump 0:17:27.080 --> 0:17:31.240 administration here is actually supporting the inmate in this case, 0:17:31.400 --> 0:17:33.359 so that the state may have an uphill battle in 0:17:33.359 --> 0:17:33.840 his hands. 0:17:33.880 --> 0:17:36.960 But we'll see the only case I can remember recently 0:17:37.359 --> 0:17:40.600 where religious rights didn't win at the Court was the 0:17:40.600 --> 0:17:44.560 case you argued in one last term on the effort 0:17:44.600 --> 0:17:48.560 to create the country's first faith based charter school. So 0:17:48.600 --> 0:17:51.240 we'll see what this term brings. Let's turn now to 0:17:51.320 --> 0:17:55.040 congressional maps, a hot topic lately. The Court is going 0:17:55.080 --> 0:17:58.119 to hear a case involving Louisiana's map that could have 0:17:58.240 --> 0:18:05.600 implications for elections dozens of congressional districts with predominantly minority populations. 0:18:05.960 --> 0:18:09.040 And this case was already argued at the Supreme Court. 0:18:09.400 --> 0:18:12.880 Yeah, so the case was argued in brief last term 0:18:13.119 --> 0:18:15.880 and the Court couldn't reach a decision, so they set 0:18:15.920 --> 0:18:19.359 it for reargument and consideration this term. And this case 0:18:19.359 --> 0:18:22.720 really has sort of had a long and tortuous history already. 0:18:23.000 --> 0:18:27.200 So after the twenty twenty census, Louisiana legislature, like many states, 0:18:27.480 --> 0:18:30.480 went back and redrew its congressional maps, and the new 0:18:30.560 --> 0:18:34.600 map it drew had one majority black district out of 0:18:34.680 --> 0:18:38.080 six districts statewide. At that point, a group of black 0:18:38.160 --> 0:18:41.040 voters brought suit against the state, arguing that the plan 0:18:41.440 --> 0:18:45.000 and permissively diluted the votes of black residents in violation 0:18:45.119 --> 0:18:47.760 of Section two of the Voting Rights Act because nearly 0:18:47.800 --> 0:18:50.199 a third of the state's population is black. So the 0:18:50.240 --> 0:18:52.960 lower courts ultimately ordered the state to draw a new map, 0:18:53.040 --> 0:18:56.600 and the new map contained a second black majority district. 0:18:56.760 --> 0:18:59.159 But this time a group of non black residents went 0:18:59.200 --> 0:19:01.800 to federal court and argued that the twenty twenty four 0:19:01.880 --> 0:19:05.800 map impermissibly took race into account in the other direction, 0:19:05.920 --> 0:19:08.560 and so it was itself invalid. So the state went 0:19:08.600 --> 0:19:11.000 to the Supreme Court, said it was between Iraq and 0:19:11.000 --> 0:19:13.199 a hard place, and asked the Court to resolve it. 0:19:13.440 --> 0:19:15.399 And as you noted, the Court was enabled to do 0:19:15.480 --> 0:19:17.960 so last term. So it set up for reargument again 0:19:18.320 --> 0:19:21.600 and basically up the ante by asking the parties to 0:19:21.640 --> 0:19:25.000 brief the question of whether the state's intentional creation of 0:19:25.040 --> 0:19:28.000 a second majority minority district to comply with the Voting 0:19:28.080 --> 0:19:31.800 Rights Act actually violated the equal protection clause. So now 0:19:31.840 --> 0:19:34.040 the Court is faced with the question that is sort 0:19:34.040 --> 0:19:36.320 of long beleegud at the court in voting rights cases, 0:19:36.359 --> 0:19:37.840 which is, how do you square the fact that you 0:19:37.880 --> 0:19:40.399 have to take race into account to comply with the 0:19:40.440 --> 0:19:42.840 protections of the Voting Rights Act with the fact that 0:19:42.880 --> 0:19:46.760 the Constitution Protection Class generally prohibited states from taking race 0:19:46.800 --> 0:19:50.240 into account and making important decisions, so this case could 0:19:50.280 --> 0:19:54.359 definitely have a major effect on Section two litigation going forward. 0:19:54.680 --> 0:19:57.720 The Government, for its part, argues that Section two's results 0:19:57.800 --> 0:20:02.800 tests is unconstitutional requires the states to draw majority minority 0:20:02.840 --> 0:20:06.479 districts where race predominates, and that basically, when a planet 0:20:06.480 --> 0:20:08.840 passed to show to prevail under its view of the 0:20:08.880 --> 0:20:10.920 Voting Rights Act, as it must show that the new 0:20:10.960 --> 0:20:15.600 district is superior under race neutral districting principles. So the 0:20:15.680 --> 0:20:18.560 Voting Rights Act is one area where we've seen some 0:20:18.640 --> 0:20:21.520 consequential decisions in the past few years, and this is 0:20:21.560 --> 0:20:24.000 a case that definitely should be followed closely. 0:20:24.840 --> 0:20:27.320 The Court gutted part of the Voting Rights Act in 0:20:27.320 --> 0:20:31.439 the Shelby County versus Holder case in twenty thirteen, and 0:20:32.040 --> 0:20:37.040 some justices have questioned the constitutionality of race based districts. 0:20:37.240 --> 0:20:40.120 A quote the challenges used here was one from Justice 0:20:40.160 --> 0:20:44.320 Brett Kavanov. The authority to conduct race based cannot extend 0:20:44.359 --> 0:20:47.320 indefinitely into the future. Does it seem as if the 0:20:47.320 --> 0:20:51.920 Court is heading in that direction to get rid of 0:20:51.960 --> 0:20:54.480 the consideration of race in map drilling? 0:20:54.960 --> 0:20:58.600 Well, the hesitation, reluctance, and hostility to consideration of race 0:20:58.640 --> 0:21:00.760 in a number of areas, including a permative action and 0:21:00.800 --> 0:21:04.280 the like, has definitely been one of the sort of 0:21:04.400 --> 0:21:08.400 emphasises of this court. Interestingly, the Court just a couple 0:21:08.440 --> 0:21:11.000 of years ago, in a case out of Alabama, by 0:21:11.000 --> 0:21:13.680 a five to four vote, upheld a map that was 0:21:13.800 --> 0:21:16.720 challenged out of Alabama. So it would be, you know, 0:21:17.119 --> 0:21:20.520 something of a right turn for the Court to go 0:21:20.560 --> 0:21:23.920 ahead and validate Section two of the Voting Rights Act 0:21:23.960 --> 0:21:27.640 on constitutional grounds more broadly, and we don't know. I think, 0:21:27.800 --> 0:21:29.600 based on the fact that the Court was unable to 0:21:29.600 --> 0:21:33.200 reach a decision last term in this case, it suggests 0:21:33.240 --> 0:21:36.160 that the Justices are struggling. The fact that they've added 0:21:36.160 --> 0:21:39.399 this broader constitutional question doesn't mean that the Justices have 0:21:39.480 --> 0:21:42.440 to resolve it on that basis. I think if there's 0:21:42.600 --> 0:21:45.040 anything we can sort of speculate at this point is 0:21:45.080 --> 0:21:47.960 that the Justices are closely divided on this issue. 0:21:48.119 --> 0:21:51.159 So the Court is going to hear another death penalty case. 0:21:51.400 --> 0:21:54.760 It hurt a couple last term. This time it's about 0:21:54.800 --> 0:21:58.359 what defendants have to show in order to prove that 0:21:58.400 --> 0:22:03.040 they're mentally disabled and thus ineligible for the death penalty. 0:22:03.200 --> 0:22:06.200 The death penally has actually been a pretty interesting area 0:22:06.320 --> 0:22:08.800 for this court. Last term it had three death penalty 0:22:08.840 --> 0:22:12.160 cases and the death row inmate won in all three 0:22:12.160 --> 0:22:14.760 of those cases. And so this term, as you said, 0:22:14.840 --> 0:22:18.880 it's revisiting the constitutional limits on the execution of intellectually 0:22:18.880 --> 0:22:23.679 disabled individuals. In a case called Atkins versus Virginia, the 0:22:23.760 --> 0:22:26.320 Court held at the Eighth Amendment prohibits the execution of 0:22:26.359 --> 0:22:30.480 individuals who are intellectually disabled, which has generally been defined 0:22:30.480 --> 0:22:33.480 to mean someone having an IQ of seventy or below. 0:22:33.920 --> 0:22:36.040 And so the question in this case is what are 0:22:36.040 --> 0:22:40.080 court's supposed to do when they're presented with multiple IQ scores, 0:22:40.400 --> 0:22:43.280 one of which falls below the line. And in this case, 0:22:43.320 --> 0:22:47.320 the inmate had multiple IQ scores of seventy five, seventy four, 0:22:47.480 --> 0:22:50.919 seventy two, seventy eight, and seventy four again, and so 0:22:51.040 --> 0:22:54.120 all five of these scores were above seventy, but one 0:22:54.119 --> 0:22:57.639 of the scores, the seventy two, actually falls below the 0:22:57.720 --> 0:23:00.440 line if you accept the standard range for error, which 0:23:00.440 --> 0:23:02.760 would put his score at sixty nine. The Court of 0:23:02.800 --> 0:23:06.080 Appeals nevertheless held that the death sentence should be set 0:23:06.119 --> 0:23:09.439 aside the inmate argues that it was right and that 0:23:09.560 --> 0:23:12.520 you could actually just look beyond the low IQ score 0:23:12.560 --> 0:23:15.560 and if you looked sort of holistically at the evidence, 0:23:15.600 --> 0:23:20.119 including testimony about the inmates intellectual disability, that it was 0:23:20.200 --> 0:23:24.800 unconstitutional to execute him. But the state argues that the 0:23:24.880 --> 0:23:28.000