Speaker 1: This is Bloomberg Law with June Brossel from Bloomberg Radio.
Speaker 2: Honorable the Chief Justice and the Associate Justices of the
Speaker 2: Supreme Court of the United States. Oh yay, oh yay,
Speaker 2: Oh yay.
Speaker 1: The new Supreme Court term begins on Monday, and it
Speaker 1: promises to lead to several blockbuster decisions on the docket tariffs,
Speaker 1: voting rights, religion, transgender rights, copyright and capital punishment, and
Speaker 1: looming over it all, several tests of President Trump's attempts
Speaker 1: to expand executive power. My guest is former United States
Speaker 1: Solicitor General Gregory Garr, a partner at Latham and Watkins.
Speaker 1: Greg let's start with one of the biggest cases of
Speaker 1: the term, where trillions of dollars in trade are at stake,
Speaker 1: as well as the extent of the president's authority away tariffs.
Speaker 2: We could end up being a third World country.
Speaker 1: Lower courts have ruled that Trump overstepped his authority in
Speaker 1: imposing the tariffs, but now it will be up to
Speaker 1: the Supreme Court to decide.
Speaker 3: It's a very important decision, and frankly, if they make
Speaker 3: the wrong decision, it would be a devastation for our country.
Speaker 3: We've taken in trillions of dollars.
Speaker 1: Greig, what are the issues here?
Speaker 4: So this case involves a challenge brought by small businesses
Speaker 4: to President Trump's tariff policy imposing tariffs on products from
Speaker 4: companies around the world. Importantly, in this case, the president
Speaker 4: doesn't assert inherent executive power to impose the tariffs, and
Speaker 4: said he claims that Congress granted him the power under
Speaker 4: a fifty year old statute called the International Emergency Economic
Speaker 4: Powers Act, or AEPA, and Section seventeen oh two of
Speaker 4: AEPA has a long list of things that the president
Speaker 4: can do if he declares an emergency, as President Trump
Speaker 4: did here on the basis of foreign trade deficits and
Speaker 4: the Futonol crisis as to certain countries. So when the
Speaker 4: president declares such an emergency, Congress authorized him to do
Speaker 4: a number of things, including to quote unquote regulate the
Speaker 4: importation of goods. So this statue doesn't mention tariffs expressly.
Speaker 4: Before this year, no president in aiba's fifty year history
Speaker 4: had ever invoked it to impose tariffs, and Congress has
Speaker 4: always explicitly imposed limitations on the exercise of tariffs when
Speaker 4: it's granted that power explicitly. But the President claims that
Speaker 4: the broad reference to regulate in this statute does authorize
Speaker 4: him to impose the tariffs. So far, he's lost that
Speaker 4: argument in each of the lower courts that has considered it,
Speaker 4: but the case is moving to the Supreme Court. And
Speaker 4: one of the signature projects of the Roberts Court has
Speaker 4: been the development of the so called major Questions doctrine,
Speaker 4: which is built on the age old principle that Congress
Speaker 4: does not hide elephants in mouseholes. So a couple of
Speaker 4: years ago, the Supreme Court in Biden versus Nebraska held
Speaker 4: the Department of Education lacked authority to institute sweeping student
Speaker 4: loan forgiveness on the basis of a general emergency language
Speaker 4: in the Hero's Act. And before then it held in
Speaker 4: a different case that the EPA couldn't rely on a
Speaker 4: general provision of the Clean Air Act to enforce sweeping
Speaker 4: climate change regulation. And the challengers in this case essentially
Speaker 4: argued that the same principle compels the conclusion that Ayapa's
Speaker 4: general reference to regulate can't be interpreted to authorize the
Speaker 4: President to impose what would amount to one of the
Speaker 4: biggest text increases in US history, sort of the elephant
Speaker 4: of all elephants. Now, in response, the administration claims that
Speaker 4: the Court has never applied the major Questions doctrine to
Speaker 4: the foreign affairs context, and that in that context, the
Speaker 4: Court should presume that Congress would give the president more leeway,
Speaker 4: which is actually something that Justice Kavanaugh suggested in a
Speaker 4: concurring opinion last year. Nevertheless, it seems hard to square
Speaker 4: the administration's position in this case with the application of
Speaker 4: the major question doctrine in other cases, particularly given that
Speaker 4: few presidential acts have had such a momentous economic sweep
Speaker 4: as the president's tariff program has. So this is a
Speaker 4: very big power he's asserting, and you know, we're all
Speaker 4: waiting to see how the Court reacts to this particular assertion.
Speaker 1: Well, the case is the Court is going to consider
Speaker 1: this term. Do you think that this tariff's case presents
Speaker 1: the most significant test of Trump's attempts to expand presidential power.
Speaker 4: Well, this case is different, and that again, it really
Speaker 4: just concerns the scope of the authority that Congress granted.
Speaker 4: In other cases that I think we'll talk about the
Speaker 4: question is the president's assertion of his own inherent constitutional authority.
Speaker 4: But this case, it really just boils down to a
Speaker 4: question of what Congress delegated. So I mean, even if
Speaker 4: the administration did win this case, it would still lead
Speaker 4: to Congress the prerogative to change the law. On the
Speaker 4: other hand, the Court might hold, again, following its major
Speaker 4: questions cases that Congress simply didn't delegate this elephant to
Speaker 4: begin with.
Speaker 1: Okay, So going on to a couple of other cases
Speaker 1: that set up tests of presidential power over federal agencies
Speaker 1: that have been independent. They involved Trump firing a member
Speaker 1: of the Federal Trade Commission, Rebecca Slaughter, and a Federal
Speaker 1: Reserve Board governor Lisa Cook, slightly different issues. So let's
Speaker 1: start with the FTC commissioner and the law there that
Speaker 1: says commissioners can only be removed for cause, right.
Speaker 4: And this is one of the cases where the president
Speaker 4: is asserting his own inherent authority and Congress has imposed
Speaker 4: a limitation on the president's removal authority with respective heads
Speaker 4: of the Federal Trade Commission and requires the President to
Speaker 4: show cause things like malfeasance or neglect of duty or
Speaker 4: the like before he can actually remove the official. And
Speaker 4: in this case, the president removed the official Rebecca Slaughter
Speaker 4: commissioner of the FTC simply because he disagreed with her
Speaker 4: as a matter of policy. So this case tees up
Speaker 4: a challenge to a nineteen thirty five decision called Humphrey's Executor,
Speaker 4: where the Court upheld the Congress's in position of a
Speaker 4: four cause requirement on the president's removal of commissioners of
Speaker 4: the FTC. So it's basically just a redo and a
Speaker 4: chance for the Supreme Court to reconsider it's Humphrey's Executor precedent.
Speaker 4: The administration here is arguing, first of all, that the
Speaker 4: FTC has changed a lot since the day of Humphrey's Executor.
Speaker 4: In essence, this is not your grandfather's FTC. It's got
Speaker 4: a lot more executive authority, and so whatever constitutional basis
Speaker 4: the Court had for its decision in Humphrey's Executor, that
Speaker 4: shouldn't apply to the FTC today. The administration also argues
Speaker 4: that if the Court doesn't accept that, it should just
Speaker 4: go ahead and overrule the Humphreys Executor decision, which is
Speaker 4: something a number of the more conservative justices have expressed
Speaker 4: a willingness to do in recent years. And the administration
Speaker 4: is also arguing that, you know, even if the president
Speaker 4: did do something wrong here, a court couldn't actually order
Speaker 4: the reinstatement of the official miss slaughter. Here the only
Speaker 4: remedy would be one for back pay, which is actually
Speaker 4: the remedy that was sought in the Humphreys executor case.
Speaker 4: So this is a major test of executive power. And really,
Speaker 4: although the case arises in the context of firing an individual,
Speaker 4: ultimately it's about the president seeking to gain control of
Speaker 4: so called independent agencies by being able to place his
Speaker 4: own preferred heads of those agencies in place.
Speaker 1: So the Court has been chipping away at Humphrey's Executor
Speaker 1: for a while, and Justice Elena Keigan said in one
Speaker 1: of her recent decisions that you know, they're raring to
Speaker 1: get rid of Humphrey's executor. Do you think Humphrey's executor
Speaker 1: can survive this?
Speaker 4: You know, it sure seems like they are raring to
Speaker 4: get rid of it. And you know, I probably would
Speaker 4: put my money on the side of it not surviving.
Speaker 4: That said, I mean, it would be fairly easy for
Speaker 4: the court to say that the FDC today is much
Speaker 4: different than the FDC in Humphrey's Executor time, and so
Speaker 4: to you know, further narrow Humphrey's executor. But I do
Speaker 4: think it's the case that the justices probably have just
Speaker 4: had enough, So I think Humphrey's executors' day's maybe number.
Speaker 1: The Court refused to let Slaughter return to her job
Speaker 1: as the litigation goes forward, and that sets it apart
Speaker 1: from the next case we'll talk about involving Trump's attempts
Speaker 1: to fire Federal Reserve Board Governor Lisa Cook. And this
Speaker 1: week the Court said that Trump can't fire Cook as
Speaker 1: the litigation is proceeding. Is that different significant?
Speaker 4: Yeah? I think it is. I mean it's the one
Speaker 4: time among all the other officials that the President has
Speaker 4: fired that the Supreme Court has declined to grant the
Speaker 4: administration's request us to permit it to actually remove the
Speaker 4: official once and for all. And instead, what the Supreme
Speaker 4: Court did here was set the case for argument on
Speaker 4: the administration's emergency request in January. Cook's case is different.
Speaker 4: Cook is a member of the Board of Governors of
Speaker 4: the Federal Reserve, and here the President is in claiming
Speaker 4: that he had the right to fire Cook for any reason.
Speaker 4: He claims that he had cause based on allegations that
Speaker 4: she had engaged in mortgage fraud before she became a
Speaker 4: member of the FED. So that's one way in which
Speaker 4: the case is different than the Slaughter case. And then
Speaker 4: also the Supreme Court has indicated in prior opinions that
Speaker 4: the FED may be different and that it's what the
Speaker 4: Supreme Court called a uniquely structured in quasi private entity
Speaker 4: with the unique history. So even if the Court is
Speaker 4: poised to overrule Humphrey's executor in the case of an
Speaker 4: FDC official, it's not at all clear that the Court
Speaker 4: is poised to reach anything like that result in the
Speaker 4: context of the FED, which I think many believe is
Speaker 4: is uniquely important in terms of its insulation from immediate
Speaker 4: presidential control.
Speaker 1: Let's turn to a business case where Cox Communications is
Speaker 1: trying to overturn a one billion dollar verdict in a
Speaker 1: suit by the music industry.
Speaker 4: This case involves the important copyright question of whether an
Speaker 4: Internet service provider can be held contributorily liable for its
Speaker 4: customers act of copyright infringement. So the Internet service provider
Speaker 4: allows streaming and someone at his home improperly downloads music.
Speaker 4: The Court of Appeals held that a culpable intent to
Speaker 4: facilitate infringement could be inferred simply on the basis that
Speaker 4: the Internet service provider continued to provide services after it
Speaker 4: knew that those services were being used to commit direct infringement.
Speaker 4: And what the challengers argued here, pointing to prior Supreme
Speaker 4: Court present in this area, is that near knowledge of
Speaker 4: an actual infringing use is insufficient to impose secondary liability
Speaker 4: on the seller of goods or services, and that instead
Speaker 4: what the copyright infringement law requires is a culpable intent
Speaker 4: to facilitate direct infringement, when that would be like evidence
Speaker 4: that the merchant urged another to infringe or actually set
Speaker 4: up a platform that lacked any significant non infringing uses
Speaker 4: anything apart from that, The internet service provider Coxcommunication here
Speaker 4: argues it would create a substantial disincentive for the provision
Speaker 4: of universal Internet service, which could affect all of us,
Speaker 4: or at least anyone in a home or a teenager
Speaker 4: has improperly downloaded music.
Speaker 1: Yeah, Cox Communication argued that Grandma will be thrown off
Speaker 1: the Internet because Junior visited and illegally downloaded songs. Coming
Speaker 1: up next more with Gregory gar on transgender rights, religion
Speaker 1: and voting maps. I'm June Grosso and you're listening to Bloomberg.
Speaker 1: Lindsay Heacox is a transgender woman who participated in club
Speaker 1: level running soccer at Boise State University and believes she
Speaker 1: should be able to play sports like everyone else.
Speaker 4: I don't even think most of my teammates would even
Speaker 4: think of.
Speaker 3: Me as trans. I just look like a regular girl.
Speaker 1: But in twenty twenty, Idaho passed the first of its
Speaker 1: kind law barring transgender women and girls from participating on
Speaker 1: female sports teams. A federal appellate court ruled that the
Speaker 1: ban violated the Equal Protection Clause and couldn't be enforced.
Speaker 1: But now Hee Cox's case, along with that of a
Speaker 1: fifteen year old transgender girl from West Virginia, is before
Speaker 1: the Supreme Court. I've been talking to former US Solicitor
Speaker 1: General Gregory Garr, a partner at Letham and Watkins. Greg
Speaker 1: These are two of the most closely watched cases of
Speaker 1: the term where the Court is going to decide whether
Speaker 1: states can ban transgender women and girls from competing on
Speaker 1: female athletic teams. The Ninth Circuit blocked Idaho's ban based
Speaker 1: on the Equal Protection Clause, but the Fourth Circuit blocked
Speaker 1: West Virginia's ban based on Title nine, which prohibits sex
Speaker 1: discrimination in federally funded educational programs, tell us about the issues.
Speaker 4: Here, so it wouldn't be a Supreme Court term with that.
Speaker 4: A return to the culture wars in this case definitely
Speaker 4: presents that, and the cases from both circuits do present
Speaker 4: the different questions of the equal Protection Clause in Title
Speaker 4: nine and challenges to the validity of state laws that
Speaker 4: prohibit transgender girls and women from competing in girls and
Speaker 4: women's sports. These are laws that I think about half
Speaker 4: of the states have, and the main legal question in
Speaker 4: the case is whether it's sex discrimination when a state
Speaker 4: mandates that only biological females can compete in female sports.
Speaker 4: Both cases involve transgender girls who want to compete on
Speaker 4: female cross country teams. So last year, as you remember,
Speaker 4: in US versus Scrimti, the Court held that a Tennessee
Speaker 4: law banning puberty blockers and homeowned therapy for transgender miners
Speaker 4: did not engage in sex based discrimination, violating the Equal
Speaker 4: Protection Clause, and it seems likely that the courtal reach
Speaker 4: a similar conclusion here. In fact, picking up on Justice
Speaker 4: Ginsberg's own writings, the government argues that the laws here
Speaker 4: simply take into account the physical differences between men and women,
Speaker 4: and that therefore they don't really engage in impermissible discrimination
Speaker 4: to begin with. Now that plaintiffs sort of counter with
Speaker 4: the Supreme Court's decision in boss Stock versus Clayton County,
Speaker 4: where the Court held the discrimination based on gender or
Speaker 4: sexual identity is discrimination on the basis of sex under
Speaker 4: Title seven. But the Supreme Court distinguished and I think
Speaker 4: limited Bostoc in the Sucurmety case last year, and I
Speaker 4: think that challengers probably have a hard argument in pushing
Speaker 4: Bostok to the Supreme Court in this case. The supporters
Speaker 4: of these laws also argue that allowing biological males to
Speaker 4: compete in women's sports would defeat the whole purpose of
Speaker 4: Title nine. So you know, this is again one of
Speaker 4: these cases that really sort of hits hard on the
Speaker 4: culture wars, and the Court I think will be following
Speaker 4: out Bonnette's decision last year in Scrematti and we'll see
Speaker 4: what it does.
Speaker 1: And it also wouldn't be a Supreme Court term without
Speaker 1: a religious rights case. A Rastafarian wants to suit prison
Speaker 1: officials in Louisiana who forcibly shaved him bald in violation
Speaker 1: of his religious beliefs. The Court has considered a lot
Speaker 1: of cases involving the rights of Christians, but I don't
Speaker 1: know of any until now involving the rights of Rastafarians.
Speaker 4: Yeah, and the court's been very active in the area
Speaker 4: of religion recently, and you know, generally as sided with
Speaker 4: proponents of religious liberty. The facts of this case are
Speaker 4: really pretty extreme and outrageous. In this case is brought
Speaker 4: by a Rastafarian, Immey, who is suing a state prison
Speaker 4: official under what's called the Religious Land Use in Institutional
Speaker 4: Persons Act or our LUPA, and he claims that when
Speaker 4: he was transferred to a new prison, the prison official
Speaker 4: allegedly handcuffed him to a chair and actually shaved his head,
Speaker 4: even though he told the guard that he had taken
Speaker 4: a religious vow not to cut off his hair, which
Speaker 4: he had honored for over a decade, and actually handed
Speaker 4: the guard a copy of a Fifth Circuit decision holding
Speaker 4: that cutting the hair of a Rastafarian inmate would violate
Speaker 4: the inmate's religious liberties, so that the inmate brought suit
Speaker 4: seeking monetary damages against the prison officials involved in this process.
Speaker 4: So under a different law, the Religious Freedom Restoration Act,
Speaker 4: the Supreme Court is held that inmates can get money
Speaker 4: damages against federal officers who violate their religious liberties. And
Speaker 4: so the basic questions whether the same rule would apply
Speaker 4: to state officers under our LUPA the parallel statute, and
Speaker 4: it would seem like the answer would have to be yes.
Speaker 4: But the state argues that because our LUPA was passed
Speaker 4: under Congress's spending clause power, where Congress generally attaches strings
Speaker 4: to federal funding grants, the state argues that a different
Speaker 4: rule applies because the state has never agreed to these
Speaker 4: sorts of terms to be subjected to money damages suits.
Speaker 4: And then the state also argues that if the court
Speaker 4: accepts the inmate's position, it's going to only exacerbate the
Speaker 4: shortage of people who are willing to serve as prison guards.
Speaker 4: I'm not sure that that's going to be enough here.
Speaker 4: I mean, I think that the facts of this case
Speaker 4: in particular may weigh in the court, and the Trump
Speaker 4: administration here is actually supporting the inmate in this case,
Speaker 4: so that the state may have an uphill battle in
Speaker 4: his hands.
Speaker 1: But we'll see the only case I can remember recently
Speaker 1: where religious rights didn't win at the Court was the
Speaker 1: case you argued in one last term on the effort
Speaker 1: to create the country's first faith based charter school. So
Speaker 1: we'll see what this term brings. Let's turn now to
Speaker 1: congressional maps, a hot topic lately. The Court is going
Speaker 1: to hear a case involving Louisiana's map that could have
Speaker 1: implications for elections dozens of congressional districts with predominantly minority populations.
Speaker 1: And this case was already argued at the Supreme Court.
Speaker 4: Yeah, so the case was argued in brief last term
Speaker 4: and the Court couldn't reach a decision, so they set
Speaker 4: it for reargument and consideration this term. And this case
Speaker 4: really has sort of had a long and tortuous history already.
Speaker 4: So after the twenty twenty census, Louisiana legislature, like many states,
Speaker 4: went back and redrew its congressional maps, and the new
Speaker 4: map it drew had one majority black district out of
Speaker 4: six districts statewide. At that point, a group of black
Speaker 4: voters brought suit against the state, arguing that the plan
Speaker 4: and permissively diluted the votes of black residents in violation
Speaker 4: of Section two of the Voting Rights Act because nearly
Speaker 4: a third of the state's population is black. So the
Speaker 4: lower courts ultimately ordered the state to draw a new map,
Speaker 4: and the new map contained a second black majority district.
Speaker 4: But this time a group of non black residents went
Speaker 4: to federal court and argued that the twenty twenty four
Speaker 4: map impermissibly took race into account in the other direction,
Speaker 4: and so it was itself invalid. So the state went
Speaker 4: to the Supreme Court, said it was between Iraq and
Speaker 4: a hard place, and asked the Court to resolve it.
Speaker 4: And as you noted, the Court was enabled to do
Speaker 4: so last term. So it set up for reargument again
Speaker 4: and basically up the ante by asking the parties to
Speaker 4: brief the question of whether the state's intentional creation of
Speaker 4: a second majority minority district to comply with the Voting
Speaker 4: Rights Act actually violated the equal protection clause. So now
Speaker 4: the Court is faced with the question that is sort
Speaker 4: of long beleegud at the court in voting rights cases,
Speaker 4: which is, how do you square the fact that you
Speaker 4: have to take race into account to comply with the
Speaker 4: protections of the Voting Rights Act with the fact that
Speaker 4: the Constitution Protection Class generally prohibited states from taking race
Speaker 4: into account and making important decisions, so this case could
Speaker 4: definitely have a major effect on Section two litigation going forward.
Speaker 4: The Government, for its part, argues that Section two's results
Speaker 4: tests is unconstitutional requires the states to draw majority minority
Speaker 4: districts where race predominates, and that basically, when a planet
Speaker 4: passed to show to prevail under its view of the
Speaker 4: Voting Rights Act, as it must show that the new
Speaker 4: district is superior under race neutral districting principles. So the
Speaker 4: Voting Rights Act is one area where we've seen some
Speaker 4: consequential decisions in the past few years, and this is
Speaker 4: a case that definitely should be followed closely.
Speaker 1: The Court gutted part of the Voting Rights Act in
Speaker 1: the Shelby County versus Holder case in twenty thirteen, and
Speaker 1: some justices have questioned the constitutionality of race based districts.
Speaker 1: A quote the challenges used here was one from Justice
Speaker 1: Brett Kavanov. The authority to conduct race based cannot extend
Speaker 1: indefinitely into the future. Does it seem as if the
Speaker 1: Court is heading in that direction to get rid of
Speaker 1: the consideration of race in map drilling?
Speaker 4: Well, the hesitation, reluctance, and hostility to consideration of race
Speaker 4: in a number of areas, including a permative action and
Speaker 4: the like, has definitely been one of the sort of
Speaker 4: emphasises of this court. Interestingly, the Court just a couple
Speaker 4: of years ago, in a case out of Alabama, by
Speaker 4: a five to four vote, upheld a map that was
Speaker 4: challenged out of Alabama. So it would be, you know,
Speaker 4: something of a right turn for the Court to go
Speaker 4: ahead and validate Section two of the Voting Rights Act
Speaker 4: on constitutional grounds more broadly, and we don't know. I think,
Speaker 4: based on the fact that the Court was unable to
Speaker 4: reach a decision last term in this case, it suggests
Speaker 4: that the Justices are struggling. The fact that they've added
Speaker 4: this broader constitutional question doesn't mean that the Justices have
Speaker 4: to resolve it on that basis. I think if there's
Speaker 4: anything we can sort of speculate at this point is
Speaker 4: that the Justices are closely divided on this issue.
Speaker 1: So the Court is going to hear another death penalty case.
Speaker 1: It hurt a couple last term. This time it's about
Speaker 1: what defendants have to show in order to prove that
Speaker 1: they're mentally disabled and thus ineligible for the death penalty.
Speaker 4: The death penally has actually been a pretty interesting area
Speaker 4: for this court. Last term it had three death penalty
Speaker 4: cases and the death row inmate won in all three
Speaker 4: of those cases. And so this term, as you said,
Speaker 4: it's revisiting the constitutional limits on the execution of intellectually
Speaker 4: disabled individuals. In a case called Atkins versus Virginia, the
Speaker 4: Court held at the Eighth Amendment prohibits the execution of
Speaker 4: individuals who are intellectually disabled, which has generally been defined
Speaker 4: to mean someone having an IQ of seventy or below.
Speaker 4: And so the question in this case is what are
Speaker 4: court's supposed to do when they're presented with multiple IQ scores,
Speaker 4: one of which falls below the line. And in this case,
Speaker 4: the inmate had multiple IQ scores of seventy five, seventy four,
Speaker 4: seventy two, seventy eight, and seventy four again, and so
Speaker 4: all five of these scores were above seventy, but one
Speaker 4: of the scores, the seventy two, actually falls below the
Speaker 4: line if you accept the standard range for error, which
Speaker 4: would put his score at sixty nine. The Court of
Speaker 4: Appeals nevertheless held that the death sentence should be set
Speaker 4: aside the inmate argues that it was right and that
Speaker 4: you could actually just look beyond the low IQ score
Speaker 4: and if you looked sort of holistically at the evidence,
Speaker 4: including testimony about the inmates intellectual disability, that it was
Speaker 4: unconstitutional to execute him. But the state argues that the
Speaker 4: fact that there are so many scores above seventy should
Speaker 4: be in itself decisive, and that this is an area
Speaker 4: where the courts should defer to the state's judgment, at
Speaker 4: least where it's based on multiple ice Q scores about seventy.
Speaker 4: So it's an interesting question. And again, I mean, this court,
Speaker 4: you know, maybe a little bit against what some might expect,
Speaker 4: has actually been more receptive to the claims of death
Speaker 4: row inmates. But we'll see if less terms run of
Speaker 4: successes carries over into this term.
Speaker 1: The Court's going to be accepting more cases as the
Speaker 1: term goes along. You have the shadow dock. It's so active.
Speaker 1: But do you think that in the end this term
Speaker 1: is going to be you know, the headlines afterwards will
Speaker 1: be about the expansion or perhaps limitation of presidential power.
Speaker 4: No question. One of the big sort of headline questions
Speaker 4: of this term will be the exercise of executive power.
Speaker 4: I mean, we have an administration that is boldly exercising
Speaker 4: executive power across the number of fronts, and those cases
Speaker 4: are now coming to the Supreme Court. So I think
Speaker 4: that it's likely that that will be one of the
Speaker 4: headlines of this term. Whether the headline is that the
Speaker 4: President has succeeded in expanding executive power or that the
Speaker 4: Supreme Court has pushed back against assertions of executive power,
Speaker 4: we don't know. There are a number of really important
Speaker 4: cases already on the docket, and as you indicated, there
Speaker 4: are more cases in the pipeline, in the emergency docket
Speaker 4: and otherwise, And if you go back over the last
Speaker 4: couple of terms, you know many of the most important
Speaker 4: cases are added to the Court's docket after this point
Speaker 4: in time. So this is really I'm just the tip
Speaker 4: of the iceberg.
Speaker 1: Well, thanks for taking us through these major cases. Greg
Speaker 1: that's former US Solicitor General Gregory Garr coming up. Justice
Speaker 1: Thomas dis is precedent. I'm June Grosso and you're listening
Speaker 1: to Bloomberg.
Speaker 2: Just think of law as these cases as a series
Speaker 2: of kate of cars on a long train, and you
Speaker 2: just accept the train and you just add another car.
Speaker 2: We just follow wherever it's going. We never go to
Speaker 2: the front see who's driving the train, where's it going?
Speaker 2: And you could go up there in the engine room
Speaker 2: and find us an orangutang drive in the train, and
Speaker 2: would you want to follow that just because it's a train.
Speaker 1: Justice Clarence Thomas use that train metaphor to downplay the
Speaker 1: importance of settled law or precedent into ciding new cases.
Speaker 1: Thomas said he wouldn't follow precedent if it doesn't make
Speaker 1: sense to him.
Speaker 2: And I don't think that any of these cases that
Speaker 2: have and decided are the gospel.
Speaker 1: The Roberts Court has overturned precedents in at least twenty
Speaker 1: five cases since two thousand and five, including the constitutional
Speaker 1: right to abortion, race conscious college admissions, and judicial deference
Speaker 1: to federal agencies, and in the upcoming term, the Court
Speaker 1: will be considering challenges to several long standing precedents, like
Speaker 1: the ninety year old president limiting the president's ability to
Speaker 1: fire members of independent agencies, and a landmark nineteen eighty
Speaker 1: six decision about the use of race in redistricting under
Speaker 1: the Voting Rights Act. So are Thomas's comments dissing precedent
Speaker 1: a sign of things to come. My guest is constitutional
Speaker 1: law expert David super, a professor at Georgetown Law. David,
Speaker 1: what was your reaction to Thomas's comments?
Speaker 3: Justice Thomas's remarks were quite remarkable. He said that as
Speaker 3: here in to precedent is perhaps overrated. He compared it
Speaker 3: to a situation where people are riding a train without
Speaker 3: knowing who's in the cabin driving the engine and suggested
Speaker 3: that that might well be an orangutan, and we should
Speaker 3: not take directions from an orangutan. I've never compared the
Speaker 3: US Supreme Court to an orangutan, but he has apparently,
Speaker 3: And he said that precedent may be something that one
Speaker 3: person just bought up and everyone else said, yeah, let's
Speaker 3: go along. And on that basis, he thinks that the
Speaker 3: court needs to be more willing to overrule precedent unless
Speaker 3: deferential to president.
Speaker 1: When the Supreme Court justices have their confirmation hearings, they
Speaker 1: all say, oh, you know, we're going to follow precedent. Yes, yes, yes,
Speaker 1: And of course they don't in many cases explain the
Speaker 1: importance of precedents in the law.
Speaker 3: Well, Precedent is what makes the courts distinctive. Anybody can
Speaker 3: side however they want at the moment. Why we listen
Speaker 3: to the courts is because they are bound by the law,
Speaker 3: and in the Anglo American system, the law is precedent.
Speaker 3: We even have a fancy term for it, starry decisis,
Speaker 3: and it is supposed to be what keeps unelected judges
Speaker 3: from acting willfully and just pursuing their personal agenda. And
Speaker 3: I find it exceedingly strange that perhaps the Court's most
Speaker 3: vociferous originalist is taking this view, because if there is
Speaker 3: one core principle of the original understanding of the courts
Speaker 3: is that they were bound by precedent. That's the essence
Speaker 3: of the common law system that England had for many
Speaker 3: centuries before the founding of this country, and that originalists
Speaker 3: like Justice Thomas say, should control how we decide things now.
Speaker 3: There are important decisions that were handed down I have
Speaker 3: six hundred years ago that decided difficult questions and that
Speaker 3: no court since then has ever disputed. Just as Thomas
Speaker 3: seems to suggest that that core original aspect of Anglo
Speaker 3: American jurisprudence is irrelevant, he.
Speaker 1: Also said, it's not the gospel, which I always thought
Speaker 1: President was the Gospel. But as you mentioned, he in
Speaker 1: a backhanded way, made fun of prior Supreme Court justices.
Speaker 1: He said, the President, if it's totally stupid and that's
Speaker 1: what they've decided, you don't go along with it just
Speaker 1: because it's decided.
Speaker 3: Well, it suggests that the current court is smart and
Speaker 3: its predecessors are foolish, which is a remarkably condescending approach.
Speaker 3: It's also an ahistorical approach. We've had many brilliant justices
Speaker 3: on the Court. We've had many courts that historians regard
Speaker 3: as all star courts, packed with brilliant legal minds, and
Speaker 3: to suggest that they can compared to orangutans is disappointing.
Speaker 1: This is not really anything new for Justice Thomas. The
Speaker 1: late Justice Antonin Scalia told one of Thomas's biographers quote
Speaker 1: he doesn't believe in starry, decisive period and Thomas has
Speaker 1: also frequently suggested overturning landmark opinions in cases that are
Speaker 1: not before the court.
Speaker 3: Well, and it's important that Justice Clia was Justice Thomas's
Speaker 3: best friend on the court and most frequent ally, But
Speaker 3: unlike Justice Thomas, Justice Clia generally decided the cases that
Speaker 3: were brought for him, whereas Justice Thomas for a long
Speaker 3: time has written concurring or descending opinions inviting parties to
Speaker 3: bring cases to the court. That departs from another important
Speaker 3: aspect of originalism, which is that the courts are passive.
Speaker 3: They take the cases that come to them, but they
Speaker 3: don't go out trying to do affirmative policy making. Again,
Speaker 3: that goes back hundreds and hundreds of years, and an
Speaker 3: originalist like Justice Thomas should be particularly anxious to follow
Speaker 3: the traditional role of the courts as passive deciders rather
Speaker 3: than as policymakers with an agenda.
Speaker 1: The Robert's Court has overturned around twenty five precedents, but
Speaker 1: in May, the Chief Justice talked about how the Roberts
Speaker 1: Court has overturned precedence at the lowest rate of recent courts.
Speaker 1: A New York Times study found that the Roberts Court
Speaker 1: averaged one point six reversals a term. But if you
Speaker 1: look at averages, that ignores the significance of the precedents
Speaker 1: they've overturned, doesn't it.
Speaker 3: Well, it does, and it also is subject to a
Speaker 3: lot of counting. There have been many, many, many cases
Speaker 3: about abortion rights. After Row be weighed, do you say
Speaker 3: that Bob's only overturned row. No, it made a whole
Speaker 3: bunch of other cases irrelevant and wrong as well when
Speaker 3: they said this or that restriction on abortion was unconstitutional.
Speaker 3: So you have to make some very arbitrary choices in
Speaker 3: doing account like that. There are going to be some
Speaker 3: very very technical cases in admiralty law that may get
Speaker 3: overturned because of new technology, and no one really knows
Speaker 3: or cares. And then they're going to be sweeping decisions
Speaker 3: about the Fourteenth Amendment about the separation of powers, and
Speaker 3: that kind of counting game blurs all of them together.
Speaker 1: The president that seems to have a target on it
Speaker 1: this term is Humphrey's Executor, which protects members of independent agencies.
Speaker 1: And just as Elena Kagan, in a descent from the
Speaker 1: majority decision allowing the president to fire the last Democratic
Speaker 1: member of the FTC, her colleagues are quote raring to
Speaker 1: overturn Humphrey's Executor. Do you think that will be the
Speaker 1: next precedent to go?
Speaker 3: It will be unless they overturned something else first. Humphrey's
Speaker 3: Executor is clearly on its way out. There's a real
Speaker 3: irony here because Justices Gorsuch and Capitol have criticized lower
Speaker 3: courts for not showing an up respect for Supreme Court president,
Speaker 3: even when that precedent is handed down through the shadow docket,
Speaker 3: without full briefing, without oral argument, without much of an opinion.
Speaker 3: And here Justice Thomas, their partner is turning around and
Speaker 3: saying that he would disrespect Supreme Court decisions even that
Speaker 3: were fully argued, fully briefed, and the result of painstaking opinion.
Speaker 3: I think the Justice need to decide whether the work
Speaker 3: of the Supreme Court is or is not entitled to
Speaker 3: great deference.
Speaker 1: President Trump is asking the Justices to take his appeal
Speaker 1: concerning his executive ordered to end birthright citizenship. If the
Speaker 1: Justices take that case, does that say, yes, we're going
Speaker 1: to overturn the precedent from eighteen ninety eight that supported birthright.
Speaker 3: Citizenship, and as the President handed down by arguably the
Speaker 3: most conservative Supreme Court in the nation's history, So it
Speaker 3: would be quite remarkable to overturn that case. I think
Speaker 3: the Justices will take this simply because it's a high
Speaker 3: profile and very important matter that the President has been emphasizing.
Speaker 3: I would have trouble imagining how they could overturn it.
Speaker 3: The original opinion is based on analysis of historical uses
Speaker 3: of terms going back hundreds of years. It's a very
Speaker 3: model of originalism. Any aerious originalist approach would affirm the
Speaker 3: plain language of the fourteenth Amendment and the decision from
Speaker 3: the nineteenth century.
Speaker 1: In a concurringinion in the Dobbs case, Thomas urged his
Speaker 1: colleagues to reconsider all of the Court's substantive due process
Speaker 1: precedence and explicitly called on the Court to overturn the
Speaker 1: decisions that established the right to obtain contraception, the right
Speaker 1: to same sex intimacy, and the right to same sex marriage.
Speaker 1: And now the Court is being asked to overturn the
Speaker 1: Obergerfeld decision, which legalized same sex marriage in a case
Speaker 1: involving Kim Davis, the former Kentucky clerk who refused to
Speaker 1: give a marriage license to a same sex couple because
Speaker 1: of her religious beliefs. Do you think that same sex
Speaker 1: marriage is in jeopardy?
Speaker 3: It certainly is in jeopardy. It's hard to know what
Speaker 3: the Court will do. Chief Justice Roberts has been insisting
Speaker 3: that the judges look at cases on their merits and
Speaker 3: are not pursuing a political agenda. If the Court turns
Speaker 3: over for a decision handed down barely a decade ago
Speaker 3: that has had this profounded impact on the nation's fabric.
Speaker 3: I think his effort to persuade people that this Court
Speaker 3: is anything other than a super legislature will fail.
Speaker 1: I mean, do you think Thomas with these statements as
Speaker 1: an outlier that the other justices are sort of cringing
Speaker 1: when they hear them.
Speaker 3: I imagine the Chief Justice was cringing all the way
Speaker 3: through reading accounts of this, because Justice Thomas is so
Speaker 3: overtly politicizing the court. But Justice Thomas is winning a
Speaker 3: lot more cases than he's losing these days, So it
Speaker 3: would seem that a number of other justices are pretty
Speaker 3: comfortable with this approach. But I think, first and foremost
Speaker 3: the Chief but certainly also Justice Barrett, would rather we
Speaker 3: not be this explicit about the Court pursuing its own agenda.
Speaker 3: But Justice Thomas, I guess, is still he's reached the
Speaker 3: point where he sees no reason to be secretive about it.
Speaker 3: He's got a super majority, he can lose a very
Speaker 3: conservative justice and still win a case. And though he's
Speaker 3: prepared to dispense with pretense, And why.
Speaker 1: Do you say Justice Barrett in particular.
Speaker 3: Well, she's given a couple of interviews lately in which
Speaker 3: she said that we're not at a constitutional crisis and
Speaker 3: things are working more or less ordinarily, and they sort
Speaker 3: of downplaying the importance of what's happening and seems to
Speaker 3: suggest that what we're doing is simply a technical act
Speaker 3: of judging, and Justice Thomas is saying, no, I'm not
Speaker 3: doing technical judging. I'm getting rid of the stupid stuff.
Speaker 1: Well, we're off to a new start on Monday, and
Speaker 1: we'll see if any precedents are overturned this term. Thanks
Speaker 1: so much, David. That's Professor David Super of Georgetown Law.
Speaker 1: And that's it for this edition of The Bloomberg Law Show.
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