1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,640 --> 00:00:12,480 Speaker 2: This week, the Supreme Court handed down ten decisions. Eight 3 00:00:12,560 --> 00:00:16,000 Speaker 2: were by votes of six to three, with the conservative 4 00:00:16,079 --> 00:00:20,919 Speaker 2: Republican appointees in the majority and the liberal Democratic appointees 5 00:00:21,239 --> 00:00:25,200 Speaker 2: in dissent. This term, the Court has already decided more 6 00:00:25,320 --> 00:00:30,000 Speaker 2: cases split down ideological lines than it did in all 7 00:00:30,080 --> 00:00:34,080 Speaker 2: of last term. On Tuesday, the Court's conservatives put new 8 00:00:34,159 --> 00:00:39,640 Speaker 2: limits on lawsuits alleging human rights violations against corporations over 9 00:00:39,680 --> 00:00:44,519 Speaker 2: atrocities committed abroad, effectively putting an end to these suits 10 00:00:44,640 --> 00:00:49,360 Speaker 2: over human rights abuses. The reasoning echoed the concerns expressed 11 00:00:49,360 --> 00:00:54,040 Speaker 2: by conservatives like Justices Neil Gorsich and Brett Kavanaugh during 12 00:00:54,040 --> 00:00:57,720 Speaker 2: the oral arguments that Congress should be the branch dealing 13 00:00:57,760 --> 00:01:01,800 Speaker 2: with accusations of human rights vias in other countries. 14 00:01:02,480 --> 00:01:05,120 Speaker 3: Really, the job for creating causes of action because of 15 00:01:05,200 --> 00:01:08,720 Speaker 3: foreign policy concerns, as sympathetic as this case particular case 16 00:01:09,080 --> 00:01:12,800 Speaker 3: certainly is, but the responsibility for creating causes of action 17 00:01:12,959 --> 00:01:16,840 Speaker 3: generally lies not with judges but with Congress. 18 00:01:17,560 --> 00:01:21,880 Speaker 4: I'm concerned at the separation of powers level that we're 19 00:01:21,880 --> 00:01:25,600 Speaker 4: not really allowing suits to go forward, but Congress thinks 20 00:01:25,640 --> 00:01:28,360 Speaker 4: we are because of a lack of clarity in our 21 00:01:28,480 --> 00:01:29,040 Speaker 4: case law. 22 00:01:29,200 --> 00:01:32,559 Speaker 2: The court granted tech giant Cisco's bid to shut down 23 00:01:32,640 --> 00:01:36,760 Speaker 2: the lawsuit, alleging that the company work closely with China 24 00:01:36,800 --> 00:01:41,560 Speaker 2: to create the surveillance system that allowed officials to identify, apprehend, 25 00:01:41,680 --> 00:01:45,319 Speaker 2: and torture members of the fall and Gong spiritual movement 26 00:01:45,400 --> 00:01:49,720 Speaker 2: in China. Cisco has denied allegations of wrongdoing. My guest 27 00:01:49,800 --> 00:01:53,560 Speaker 2: is an expert in international law, Curtis Bradley, a professor 28 00:01:53,560 --> 00:01:56,720 Speaker 2: at the University of Chicago Law School. Kurt tell us 29 00:01:56,760 --> 00:02:00,920 Speaker 2: about this lawsuit by twelve Chinese nationals and one US 30 00:02:01,040 --> 00:02:02,600 Speaker 2: citizen against Cisco. 31 00:02:03,040 --> 00:02:06,280 Speaker 5: So, the Cisco case was a suit brought by the 32 00:02:06,360 --> 00:02:10,120 Speaker 5: Falan Goong religious group from China at least a number 33 00:02:10,120 --> 00:02:13,160 Speaker 5: of members of that organization. They were suing not China 34 00:02:13,240 --> 00:02:16,480 Speaker 5: in this case, but Cisco Systems, the computer company in 35 00:02:16,480 --> 00:02:20,200 Speaker 5: the United States, and their argument was that Cisco had 36 00:02:20,440 --> 00:02:24,320 Speaker 5: aided and abetted persecution of the Fallongong in China by 37 00:02:24,360 --> 00:02:29,480 Speaker 5: supplying Chinese government with surveillance technology. Basically, and the lower 38 00:02:29,520 --> 00:02:32,160 Speaker 5: court had allowed this case to go forward, and the 39 00:02:32,200 --> 00:02:34,880 Speaker 5: Supreme Court said that it could not go forward, and 40 00:02:34,919 --> 00:02:38,000 Speaker 5: they issued a pretty important ruling about this type of 41 00:02:38,080 --> 00:02:41,080 Speaker 5: human rights litigation, which has been pretty active for the 42 00:02:41,120 --> 00:02:44,320 Speaker 5: last thirty years. And the Court's decision in Cisco, I 43 00:02:44,320 --> 00:02:46,440 Speaker 5: think largely is going to put an end to these 44 00:02:46,520 --> 00:02:49,359 Speaker 5: human rights cases brought against corporations. 45 00:02:49,760 --> 00:02:53,840 Speaker 2: So was the basic issue whether the Alien Towards Statute 46 00:02:53,960 --> 00:02:58,120 Speaker 2: creates liability for corporations who aid and a bet human 47 00:02:58,200 --> 00:02:59,080 Speaker 2: rights abuses. 48 00:02:59,520 --> 00:03:02,760 Speaker 5: Yeah, cases based on this old statute called the Alien 49 00:03:02,800 --> 00:03:05,320 Speaker 5: Torch Statute. It's actually been on the books since the 50 00:03:05,320 --> 00:03:07,960 Speaker 5: beginning of the country seventeen eighty nine, but it has 51 00:03:08,160 --> 00:03:11,720 Speaker 5: just been used for human rights litigation really during the 52 00:03:11,800 --> 00:03:15,480 Speaker 5: last thirty or forty years. And what the Court held 53 00:03:15,520 --> 00:03:18,959 Speaker 5: in the Cisco case was effectively it cannot be used 54 00:03:18,960 --> 00:03:21,320 Speaker 5: for human rights claims, you know. One way to translate 55 00:03:21,360 --> 00:03:24,799 Speaker 5: the decision, They basically said the statute doesn't have enough 56 00:03:24,840 --> 00:03:27,960 Speaker 5: indication in it that Congress has wanted these human rights 57 00:03:27,960 --> 00:03:31,119 Speaker 5: cases to go forward. So unless Congress amends the statute, 58 00:03:31,240 --> 00:03:33,520 Speaker 5: the Court is really putting an end to those cases. 59 00:03:33,840 --> 00:03:36,000 Speaker 5: It did say that the statue could be used for 60 00:03:36,080 --> 00:03:39,160 Speaker 5: a few personal injury type claims that would have been 61 00:03:39,200 --> 00:03:41,640 Speaker 5: around in the seventeen eighties, but they're not ones that 62 00:03:41,680 --> 00:03:46,000 Speaker 5: we ever see today anymore. So this Cisco case basically 63 00:03:46,080 --> 00:03:48,800 Speaker 5: says Congress will have to provide a new statue if 64 00:03:48,920 --> 00:03:50,880 Speaker 5: plaintiffs are going to be able to sue for human 65 00:03:50,960 --> 00:03:54,400 Speaker 5: rights abuses occurring in various countries. And that's that's an 66 00:03:54,400 --> 00:03:57,320 Speaker 5: important ruling because there have been many cases for human 67 00:03:57,400 --> 00:04:01,040 Speaker 5: rights abuses brought for atrocity from around the world, and 68 00:04:01,080 --> 00:04:04,040 Speaker 5: they've been brought into US courts under this old alien 69 00:04:04,080 --> 00:04:07,400 Speaker 5: Tort Statute, and the Supreme Court had composed a variety 70 00:04:07,440 --> 00:04:10,880 Speaker 5: of restrictions on that litigation really in the last fifteen 71 00:04:10,920 --> 00:04:13,720 Speaker 5: years or so. But this is a more dramatic limit 72 00:04:13,800 --> 00:04:17,760 Speaker 5: because it effectively just ends any more Alien Towart statute litigation. 73 00:04:17,880 --> 00:04:18,200 Speaker 6: I think. 74 00:04:18,520 --> 00:04:21,520 Speaker 2: So the Alien Tort Statute is only thirty three words. 75 00:04:21,560 --> 00:04:23,640 Speaker 2: I'm going to read it the district courts. You'll have 76 00:04:23,720 --> 00:04:27,240 Speaker 2: original jurisdiction of any civil action by an alien for 77 00:04:27,320 --> 00:04:30,359 Speaker 2: a tourt only committed in violation of the law of 78 00:04:30,440 --> 00:04:33,760 Speaker 2: nations or a treaty of the United States. So if 79 00:04:33,760 --> 00:04:36,960 Speaker 2: this is a court, you know that's reading the statute 80 00:04:37,000 --> 00:04:40,520 Speaker 2: and ruling according to the words, Why doesn't that cover 81 00:04:41,160 --> 00:04:42,200 Speaker 2: what's happening here? 82 00:04:43,040 --> 00:04:45,160 Speaker 5: Well, a couple of thoughts. One of things the Court 83 00:04:45,279 --> 00:04:48,920 Speaker 5: notes is that until the nineteen eighties, no one thought 84 00:04:49,320 --> 00:04:52,440 Speaker 5: the statute provided a cause of action a claim for 85 00:04:52,560 --> 00:04:55,200 Speaker 5: human rights abuses, And the words that you just read 86 00:04:55,240 --> 00:04:58,080 Speaker 5: are not really written in terms of a claim statute. 87 00:04:58,279 --> 00:05:01,560 Speaker 5: All they say is that the court have jurisdiction, that is, 88 00:05:01,600 --> 00:05:04,839 Speaker 5: that they're available to hear certain kinds of tortue cases. 89 00:05:04,880 --> 00:05:07,520 Speaker 5: But they don't really provide what we today would call 90 00:05:07,600 --> 00:05:10,239 Speaker 5: a cause of action, that is a right to seek 91 00:05:10,320 --> 00:05:13,440 Speaker 5: damages or other relief. And at least in the modern era, 92 00:05:13,880 --> 00:05:18,400 Speaker 5: courts wait until Congress provides an actual claim statue before 93 00:05:18,440 --> 00:05:21,120 Speaker 5: it starts giving people the right to suit for damages. 94 00:05:21,520 --> 00:05:23,880 Speaker 5: But in the alien tort statue cases, courts had been 95 00:05:23,920 --> 00:05:27,039 Speaker 5: allowing suits for damages, even though I don't think the 96 00:05:27,080 --> 00:05:31,440 Speaker 5: statute really addresses that. The other thing that Court mentions 97 00:05:31,839 --> 00:05:35,440 Speaker 5: is that suits for these torts around the world inherently 98 00:05:35,520 --> 00:05:39,440 Speaker 5: raise foreign policy issues. Sometimes they might promote some good 99 00:05:39,600 --> 00:05:42,960 Speaker 5: in terms of human rights improvement, but they also sometimes 100 00:05:43,000 --> 00:05:46,520 Speaker 5: create lots of conflicts with other countries. And the Court 101 00:05:46,560 --> 00:05:50,600 Speaker 5: thought that if Congress really wants that type of litigation. 102 00:05:51,120 --> 00:05:54,719 Speaker 5: It needs to address those foreign policy issues more specifically, 103 00:05:54,720 --> 00:05:57,920 Speaker 5: and just citing a statue from seventeen eighty nine doesn't 104 00:05:57,960 --> 00:06:01,359 Speaker 5: really show Congress is addressed all the foreign policy trade 105 00:06:01,400 --> 00:06:05,360 Speaker 5: offs that human rights cases posed today, and so effectively, 106 00:06:05,400 --> 00:06:07,560 Speaker 5: the Court's just pushing this sover to Carnas. 107 00:06:07,880 --> 00:06:11,080 Speaker 2: The three liberals dissented from the part of the ruling 108 00:06:11,120 --> 00:06:15,040 Speaker 2: that limited claims under the alien torte statute, just as 109 00:06:15,040 --> 00:06:19,359 Speaker 2: Sonya Sotomayor wrote an impassioned descent, saying the majority was 110 00:06:19,400 --> 00:06:23,200 Speaker 2: throwing out two decades of settled precedent. Quote, the Court's 111 00:06:23,279 --> 00:06:27,480 Speaker 2: decision today is yet another notch in its belt, unabashedly 112 00:06:27,600 --> 00:06:31,160 Speaker 2: remaking the law in its preferred image. I mean, only 113 00:06:31,200 --> 00:06:33,960 Speaker 2: twenty years ago the Supreme Court held the opposite of 114 00:06:34,000 --> 00:06:34,720 Speaker 2: this decision. 115 00:06:35,120 --> 00:06:37,880 Speaker 5: There's a two thousand and four decision. It's called Sosa 116 00:06:38,120 --> 00:06:43,839 Speaker 5: versus Alvar's Machine, and Sodomara's descent certainly understandably emphasizes that 117 00:06:43,920 --> 00:06:47,400 Speaker 5: decision because the Court there did allow at least some 118 00:06:47,920 --> 00:06:51,200 Speaker 5: cases to continue proceeding under the alien tort statue. Now, 119 00:06:51,200 --> 00:06:54,400 Speaker 5: it was a pretty limited holding in Sosa, and the 120 00:06:54,480 --> 00:06:58,039 Speaker 5: Court said there should never be a particularly robust a 121 00:06:58,080 --> 00:07:00,760 Speaker 5: set of cases, and it suggests to a variety of 122 00:07:00,839 --> 00:07:05,120 Speaker 5: limits the court should consider. And since that two thousand 123 00:07:05,120 --> 00:07:07,960 Speaker 5: and four decision, the Supreme Court has never found a 124 00:07:08,040 --> 00:07:10,880 Speaker 5: case to satisfy those limits from that two thousand and 125 00:07:10,880 --> 00:07:14,320 Speaker 5: four case, And so the majority in the Cisco case says, 126 00:07:14,920 --> 00:07:17,040 Speaker 5: we should just be clear that we're just not going 127 00:07:17,120 --> 00:07:21,040 Speaker 5: to find a case that satisfies those strict limitations and 128 00:07:21,200 --> 00:07:24,040 Speaker 5: just let everyone know so they don't waste time litigating, 129 00:07:24,480 --> 00:07:28,600 Speaker 5: because repeatedly the Court has found reasons to reject those claims, 130 00:07:28,600 --> 00:07:31,200 Speaker 5: and now it's just doing so more categorical. But I 131 00:07:31,200 --> 00:07:33,960 Speaker 5: think the descent makes a reasonable point that the Court's 132 00:07:34,000 --> 00:07:37,320 Speaker 5: not really giving precedential effect to that two thousand and 133 00:07:37,400 --> 00:07:39,920 Speaker 5: four case. My own view, by the way, you know, 134 00:07:39,960 --> 00:07:42,119 Speaker 5: what people disagree about this is that the two thousand 135 00:07:42,160 --> 00:07:44,800 Speaker 5: and four case is probably wrongly decided, and I think 136 00:07:44,920 --> 00:07:47,440 Speaker 5: the majority believes that to be the case as well. 137 00:07:47,440 --> 00:07:50,320 Speaker 5: But nevertheless, there's an argument that it was entitled to 138 00:07:50,360 --> 00:07:52,760 Speaker 5: some presidential weight that the Court is not giving. 139 00:07:53,120 --> 00:07:56,720 Speaker 2: The Roberts Court has been narrowing the alien towards statute 140 00:07:56,720 --> 00:07:59,720 Speaker 2: over the years, and I remember the decision in twenty 141 00:07:59,760 --> 00:08:04,120 Speaker 2: two where a suit accused Nesley and Cargle of aiding 142 00:08:04,160 --> 00:08:07,520 Speaker 2: and abetting child slavery on the Ivory Coast, and the 143 00:08:07,560 --> 00:08:10,320 Speaker 2: court ruled there was no cause of action there either. 144 00:08:10,600 --> 00:08:12,800 Speaker 2: If there's no cause of action, then I mean these 145 00:08:12,800 --> 00:08:15,960 Speaker 2: people have no place else to sue right or do. 146 00:08:16,120 --> 00:08:18,320 Speaker 5: That is, you know, one of the concerns about some 147 00:08:18,400 --> 00:08:22,880 Speaker 5: of these restrictive decisions. There are serious atrocities being committed 148 00:08:22,920 --> 00:08:26,600 Speaker 5: in various countries. Most of the time there aren't really 149 00:08:26,640 --> 00:08:30,960 Speaker 5: any available remedies for the victims. They can't typically sue 150 00:08:31,200 --> 00:08:33,839 Speaker 5: in the place of the human rights abuse. Most other 151 00:08:33,960 --> 00:08:37,240 Speaker 5: nations don't allow cases like we had been allowing under 152 00:08:37,240 --> 00:08:40,840 Speaker 5: the Alien Torch Statute. They aren't really international tribunals suited 153 00:08:40,880 --> 00:08:43,760 Speaker 5: for the task. So some of the courts who like 154 00:08:43,840 --> 00:08:47,040 Speaker 5: the Alien Toward Statute litigation had said, at least that's 155 00:08:47,120 --> 00:08:52,040 Speaker 5: some possibility of redress vindication of their human rights, and 156 00:08:52,559 --> 00:08:55,520 Speaker 5: that's actually a main reason some of the lower courts 157 00:08:55,520 --> 00:08:58,760 Speaker 5: had been allowing these cases. But as the majority said 158 00:08:58,760 --> 00:09:01,680 Speaker 5: in Cisco, that might be a noble goal, it's just 159 00:09:01,720 --> 00:09:05,280 Speaker 5: not clear that Congress has endorsed that particular goal. And 160 00:09:05,600 --> 00:09:08,800 Speaker 5: normally at least today, if we're going to allow those 161 00:09:08,880 --> 00:09:12,600 Speaker 5: kinds of important claims, somebody in the political ranches, Congress 162 00:09:12,640 --> 00:09:16,720 Speaker 5: particularly should actually decide whether that makes sense. And so, 163 00:09:17,280 --> 00:09:19,079 Speaker 5: you know, the argument of the majority is, if it's 164 00:09:19,120 --> 00:09:22,839 Speaker 5: really important to vindicate these rights, then people should lobby 165 00:09:22,880 --> 00:09:25,400 Speaker 5: Congress to try to get another human rights statue. They 166 00:09:25,400 --> 00:09:27,440 Speaker 5: got one, by the way, in the nineteen nineties. 167 00:09:27,840 --> 00:09:30,320 Speaker 2: I do want to point out that while the Court's 168 00:09:30,440 --> 00:09:35,000 Speaker 2: conservatives shut the door on these lawsuits against corporations for 169 00:09:35,120 --> 00:09:39,120 Speaker 2: human rights abuses abroad, on the same day they open 170 00:09:39,200 --> 00:09:42,680 Speaker 2: the door to a one billion dollar lawsuit by Exon 171 00:09:43,160 --> 00:09:47,319 Speaker 2: against a Cuban conglomerate for operating oil and gas assets 172 00:09:47,360 --> 00:09:52,360 Speaker 2: seized in nineteen sixty in Cuba following the country's communist revolution. 173 00:09:52,920 --> 00:09:54,240 Speaker 2: Quite a contrast there. 174 00:09:54,600 --> 00:09:57,760 Speaker 5: Yes, absolutely, in some ways they look like decisions that 175 00:09:57,840 --> 00:10:01,600 Speaker 5: have been in conflict, in that the c case shuts 176 00:10:01,679 --> 00:10:06,160 Speaker 5: down international type claims because they're worried about the foreign 177 00:10:06,160 --> 00:10:09,920 Speaker 5: policy implications. The ex On mobile case, you know, allows 178 00:10:10,000 --> 00:10:15,640 Speaker 5: pretty aggressive international claims against at least Cuban entities and others. 179 00:10:16,080 --> 00:10:19,440 Speaker 5: And so how do you reconcile those And one way 180 00:10:19,520 --> 00:10:22,520 Speaker 5: possibly of reconciling I think the court and the Exon 181 00:10:22,640 --> 00:10:26,079 Speaker 5: case had the view that Congress and the Executive really 182 00:10:26,120 --> 00:10:30,960 Speaker 5: did support aggressive legal claims against Cuba and companies, you know, 183 00:10:31,040 --> 00:10:34,680 Speaker 5: transacting with Cuba, and that's probably to some extent true. 184 00:10:34,760 --> 00:10:37,240 Speaker 5: You know, the statute in the Exon case is you know, 185 00:10:37,400 --> 00:10:40,960 Speaker 5: relatively recent one compared to the Alien Torch Statute, and 186 00:10:41,000 --> 00:10:45,240 Speaker 5: it has aggressive provisions allowing suits against anyone who traffics 187 00:10:45,400 --> 00:10:50,000 Speaker 5: in property confiscated by the Castro Cuban government. And it 188 00:10:50,080 --> 00:10:54,000 Speaker 5: does have language allowing suit even against government entity that 189 00:10:54,080 --> 00:10:57,720 Speaker 5: transact in that confiscated property. So at least the court 190 00:10:57,760 --> 00:11:01,120 Speaker 5: in the x On case has stronger and clear statutory 191 00:11:01,240 --> 00:11:04,040 Speaker 5: language I think, to work with in allowing the claims. 192 00:11:04,240 --> 00:11:06,640 Speaker 5: I actually think it's kind of a pretty close call 193 00:11:06,720 --> 00:11:09,720 Speaker 5: in my view about the statutory language and the Xon case. 194 00:11:09,800 --> 00:11:13,240 Speaker 5: So I thought the dissenting justices had some reasonable counter 195 00:11:13,360 --> 00:11:14,920 Speaker 5: arguments about the statute. 196 00:11:15,080 --> 00:11:17,760 Speaker 2: I suspect we'll be seeing more of these lawsuits filed 197 00:11:17,800 --> 00:11:20,559 Speaker 2: in the future now that the court has opened the door. 198 00:11:20,800 --> 00:11:22,959 Speaker 2: It's been great having you on. Thanks so much, Kurt. 199 00:11:23,160 --> 00:11:26,840 Speaker 2: That's Professor Curtis Bradley of the University of Chicago Law 200 00:11:26,880 --> 00:11:30,559 Speaker 2: School coming up next, the court rules that a Rastafarian 201 00:11:30,640 --> 00:11:35,000 Speaker 2: innate can't sue the prison officials who violated his religious rights. 202 00:11:35,240 --> 00:11:37,560 Speaker 2: I'm June Grosso and this is Bloomberg. 203 00:11:39,320 --> 00:11:42,040 Speaker 7: It is undisputed that my client has alleged an assault 204 00:11:42,080 --> 00:11:46,880 Speaker 7: that is just brazenly illegal. He was at respondent's mercy 205 00:11:47,120 --> 00:11:49,600 Speaker 7: in federally funded custody when he handed them a copy 206 00:11:49,640 --> 00:11:52,839 Speaker 7: of controlling precedent holding that RALUPA protected his right to 207 00:11:52,920 --> 00:11:55,920 Speaker 7: keep his hair long. They threw it away, handcuffed him 208 00:11:55,920 --> 00:11:57,600 Speaker 7: to a chair, and shaved him bald. 209 00:11:57,960 --> 00:12:01,600 Speaker 2: Damon Landor is a devout russ to Farian who hadn't 210 00:12:01,600 --> 00:12:05,040 Speaker 2: cut his hair in two decades following his faith, in 211 00:12:05,080 --> 00:12:08,560 Speaker 2: which dreadlocks are a sacred symbol. So when he was 212 00:12:08,640 --> 00:12:12,640 Speaker 2: transferred to a Louisiana prison with just weeks left on 213 00:12:12,720 --> 00:12:16,439 Speaker 2: his five months sentence, he handed prison guards a copy 214 00:12:16,480 --> 00:12:20,520 Speaker 2: of an appeals court decision holding that cutting religious prisoner's 215 00:12:20,640 --> 00:12:24,800 Speaker 2: dreadlocks violated federal law. But a guard threw the ruling 216 00:12:24,840 --> 00:12:29,319 Speaker 2: into the trash, and despite Landor's please, he was handcuffed 217 00:12:29,320 --> 00:12:32,319 Speaker 2: to a chair and held down as his knee length 218 00:12:32,440 --> 00:12:35,079 Speaker 2: dreadlocks were cut and his head shaved. 219 00:12:35,120 --> 00:12:35,520 Speaker 8: Bald. 220 00:12:35,840 --> 00:12:40,560 Speaker 2: During oral arguments, the justices condemned Landor's treatment and the 221 00:12:40,559 --> 00:12:45,360 Speaker 2: blatant disregard of his religious rights. Here's Conservative Justice Amy 222 00:12:45,440 --> 00:12:46,240 Speaker 2: Coney Barrett. 223 00:12:46,400 --> 00:12:48,640 Speaker 7: Look, the facts of this case are egregious. 224 00:12:48,920 --> 00:12:50,960 Speaker 9: So if on the facts we were looking for a 225 00:12:51,000 --> 00:12:54,079 Speaker 9: case in which there should be money damages, this is it. 226 00:12:54,440 --> 00:12:57,760 Speaker 2: But it turns out this case wasn't it. In a 227 00:12:57,800 --> 00:13:01,920 Speaker 2: six to three decision, the courts conservative majority rule that 228 00:13:02,200 --> 00:13:05,880 Speaker 2: Landor can't sue the guards who cut off his dreadlocks. 229 00:13:06,200 --> 00:13:10,120 Speaker 2: They decided that inmates can't use their religious land use 230 00:13:10,160 --> 00:13:15,160 Speaker 2: and Institutionalized Persons Act or Raloopa to sue prison officials 231 00:13:15,160 --> 00:13:19,040 Speaker 2: for damages for violating their religious rights. The opinion was 232 00:13:19,080 --> 00:13:23,680 Speaker 2: written by Justice Neil Gorsuch, who telegraphed the conclusion during 233 00:13:23,720 --> 00:13:24,479 Speaker 2: the arguments. 234 00:13:24,880 --> 00:13:28,319 Speaker 3: The circuits are unanimously against you and have been for many, many, 235 00:13:28,360 --> 00:13:32,200 Speaker 3: many years. So saying that something awful's going to happen, 236 00:13:32,679 --> 00:13:32,960 Speaker 3: it's all. 237 00:13:33,120 --> 00:13:34,600 Speaker 1: Whatever's happened has happened, right. 238 00:13:35,080 --> 00:13:39,240 Speaker 2: But the liberal justices disagreed, and in a dissent by 239 00:13:39,520 --> 00:13:44,880 Speaker 2: Justice Katanji Brown Jackson, they expressed concerns that after this decision, 240 00:13:45,480 --> 00:13:49,320 Speaker 2: state prison officials will have little incentive to follow the 241 00:13:49,440 --> 00:13:53,280 Speaker 2: law and respect the religious rights of inmates. My guest 242 00:13:53,360 --> 00:13:56,360 Speaker 2: is Richard Garnett, a professor at Notre Dame Law School 243 00:13:56,440 --> 00:13:59,560 Speaker 2: and director of the school's program on Church, State and 244 00:13:59,640 --> 00:14:04,640 Speaker 2: societ Rick. What's your reaction to this decision and the 245 00:14:04,679 --> 00:14:06,360 Speaker 2: implications of this decision? 246 00:14:07,000 --> 00:14:09,080 Speaker 9: The result in this case in the land Or case 247 00:14:09,360 --> 00:14:14,000 Speaker 9: is not surprising given the way the oral arguments went. 248 00:14:14,080 --> 00:14:16,120 Speaker 9: It was clear that the justices, or at least a 249 00:14:16,160 --> 00:14:20,320 Speaker 9: majority of them, were very focused on the federalism issues 250 00:14:20,320 --> 00:14:22,600 Speaker 9: in this case. And that's what makes this case kind 251 00:14:22,640 --> 00:14:25,200 Speaker 9: of tricky. It has a religious freedom dimension, for sure, 252 00:14:25,320 --> 00:14:29,240 Speaker 9: because the facts involve a really shocking violation of a 253 00:14:29,240 --> 00:14:32,000 Speaker 9: prisoner's religious freedom rights. But there's also this kind of 254 00:14:32,160 --> 00:14:36,400 Speaker 9: technical constitutional law question about the power of Congress to 255 00:14:36,440 --> 00:14:38,320 Speaker 9: authorize certain kinds of lawsuits. 256 00:14:38,480 --> 00:14:41,200 Speaker 1: And so, you know, some of the reactions to the 257 00:14:41,280 --> 00:14:42,400 Speaker 1: case I think are. 258 00:14:42,680 --> 00:14:45,400 Speaker 9: Misguided in the sense that I've seen some reports that 259 00:14:45,440 --> 00:14:48,320 Speaker 9: ogus is just the court not caring about a minority religion. 260 00:14:48,360 --> 00:14:50,320 Speaker 1: I think that's not the right way to think about it. 261 00:14:50,440 --> 00:14:52,560 Speaker 9: You know, a group of the justices, the six and 262 00:14:52,600 --> 00:14:56,000 Speaker 9: the majority here have a pretty consistent vision of federalism, 263 00:14:56,040 --> 00:14:58,400 Speaker 9: and they believe that there are limits on the federal 264 00:14:58,480 --> 00:15:02,680 Speaker 9: government's power to author certain kinds of relief against state officials. 265 00:15:02,680 --> 00:15:04,720 Speaker 9: Now I should confess I filed a brief on the 266 00:15:04,760 --> 00:15:06,240 Speaker 9: side of the prisoner in this case. 267 00:15:06,360 --> 00:15:08,760 Speaker 1: In my view, the right answer was that this action 268 00:15:09,080 --> 00:15:09,920 Speaker 1: was authorized. 269 00:15:10,160 --> 00:15:12,280 Speaker 9: But the reason the court ruled against him was not 270 00:15:12,360 --> 00:15:16,240 Speaker 9: because it was unbothered by the egregiousness of this violation, 271 00:15:16,440 --> 00:15:18,400 Speaker 9: but because they just didn't think the federal government had 272 00:15:18,440 --> 00:15:20,920 Speaker 9: the power to authorize the suit. So what this means, 273 00:15:21,000 --> 00:15:23,520 Speaker 9: in my opinion, among other things, is that state governments 274 00:15:23,640 --> 00:15:26,840 Speaker 9: need to really step up and make sure they provide 275 00:15:26,960 --> 00:15:31,520 Speaker 9: meaningful relief for prisoners whose religious liberty rights are violated 276 00:15:31,560 --> 00:15:34,400 Speaker 9: by officials, as mister Landor's clearly were. 277 00:15:34,680 --> 00:15:39,160 Speaker 2: The LOOPA was designed to protect the religious rights of inmates, 278 00:15:39,680 --> 00:15:43,280 Speaker 2: So why doesn't it work for this inmate whose religious 279 00:15:43,360 --> 00:15:47,920 Speaker 2: rights were I mean, everyone agrees clearly and blatantly violated. 280 00:15:48,280 --> 00:15:50,280 Speaker 9: Yeah, this is and I apologize for getting into the 281 00:15:50,320 --> 00:15:52,680 Speaker 9: weeds a little bit, but RALOUPA is a special kind 282 00:15:52,680 --> 00:15:56,840 Speaker 9: of statute. It's authorized by what we call the spending power, 283 00:15:57,000 --> 00:15:59,760 Speaker 9: which means that it's not so much a direct regulation 284 00:16:00,120 --> 00:16:03,400 Speaker 9: as it is a deal. The Congress says to the states, 285 00:16:03,560 --> 00:16:06,480 Speaker 9: if you want this money, then you have to agree 286 00:16:06,520 --> 00:16:10,520 Speaker 9: to comply with this understanding of religious liberty rights. The 287 00:16:10,560 --> 00:16:13,520 Speaker 9: wrinkle in this case is that mister Landor wasn't suing 288 00:16:13,560 --> 00:16:16,600 Speaker 9: the state. He wasn't suing the state prison. He was 289 00:16:16,640 --> 00:16:21,400 Speaker 9: suing the prison employee in that employee's personal capacity. So 290 00:16:21,520 --> 00:16:23,240 Speaker 9: you know, you're not suing the prison and you're suing 291 00:16:23,480 --> 00:16:26,400 Speaker 9: you know, officer Jones. And the thing is, officer Jones 292 00:16:26,440 --> 00:16:30,239 Speaker 9: never took any federal money, so he didn't make this deal. 293 00:16:30,000 --> 00:16:33,440 Speaker 1: With the federal government. So according to the court, since officer. 294 00:16:33,160 --> 00:16:34,960 Speaker 9: Jones that that's not his name, I'm making that up, 295 00:16:35,120 --> 00:16:38,240 Speaker 9: didn't make the deal with the federal government, that means 296 00:16:38,240 --> 00:16:42,240 Speaker 9: that the federal statue doesn't authorize a lawsuit against Jones. 297 00:16:42,560 --> 00:16:44,480 Speaker 9: And it's all based on these kind of you know, 298 00:16:44,600 --> 00:16:48,640 Speaker 9: first year law school constitutional law debates about the regulatory 299 00:16:48,680 --> 00:16:51,760 Speaker 9: powers of Congress and how much power Congress. 300 00:16:51,360 --> 00:16:53,960 Speaker 1: Has to attach strings to the money it spends. And 301 00:16:54,000 --> 00:16:54,640 Speaker 1: there's a long. 302 00:16:54,520 --> 00:16:56,680 Speaker 9: Tradition of the court saying, you know, there are limits 303 00:16:56,760 --> 00:16:59,120 Speaker 9: on the strings you can attach to money. So again, 304 00:16:59,320 --> 00:17:02,600 Speaker 9: nothing deny eyes that the officers behaved badly and that 305 00:17:02,720 --> 00:17:06,280 Speaker 9: mister Landor's religious freedom was violated. It's that the particular 306 00:17:06,400 --> 00:17:09,520 Speaker 9: relief that Landor was seeking the money damage is lawsuit 307 00:17:09,600 --> 00:17:12,880 Speaker 9: against an individual, couldn't be authorized by the statue. 308 00:17:13,000 --> 00:17:17,040 Speaker 2: So the majority said that state employees didn't consent to 309 00:17:17,119 --> 00:17:21,440 Speaker 2: face lawsuits in their personal capacities when Congress passed RELOOPA 310 00:17:21,920 --> 00:17:25,359 Speaker 2: as a practical matter, when would an employee consent to 311 00:17:25,359 --> 00:17:28,680 Speaker 2: be sued? Just as Katanji Brown Jackson in Descent said, 312 00:17:29,000 --> 00:17:33,959 Speaker 2: today's decision magically transforms a federal statute into an invitation 313 00:17:34,200 --> 00:17:38,560 Speaker 2: to be accepted or declined, deemed binding only if each 314 00:17:38,640 --> 00:17:42,840 Speaker 2: particular defendant has explicitly agreed to be penalized. I mean, 315 00:17:42,880 --> 00:17:45,639 Speaker 2: to the average person, the descent makes sense. 316 00:17:45,680 --> 00:17:47,280 Speaker 1: Well, and again I was on that side. 317 00:17:47,280 --> 00:17:50,679 Speaker 9: In the end, I do think she oversimplifies the federalism issue. 318 00:17:50,680 --> 00:17:53,840 Speaker 9: There's plenty of precedent to the effect that these regulatory 319 00:17:53,880 --> 00:17:57,440 Speaker 9: spending arrangements do function kind of like a contract. 320 00:17:57,640 --> 00:17:58,600 Speaker 1: That said, in. 321 00:17:58,520 --> 00:18:01,440 Speaker 9: My view, the better ruling would have been to say 322 00:18:01,480 --> 00:18:05,320 Speaker 9: that when the state entered into this effectively contract with 323 00:18:05,560 --> 00:18:08,200 Speaker 9: the federal government and took on the burdens to respect 324 00:18:08,240 --> 00:18:11,200 Speaker 9: the religious liberty of inmates. That because these folks are 325 00:18:11,240 --> 00:18:13,960 Speaker 9: the employees of the state, those folks kind of take 326 00:18:14,000 --> 00:18:18,919 Speaker 9: employment subject to the requirements that are laid on their employers, 327 00:18:19,160 --> 00:18:22,879 Speaker 9: and that includes what the statute calls appropriate relief, which, 328 00:18:23,160 --> 00:18:24,640 Speaker 9: if you really want to get in the weed, that's 329 00:18:24,720 --> 00:18:26,840 Speaker 9: kind of what this case really came down to, is 330 00:18:26,840 --> 00:18:29,600 Speaker 9: what counts is appropriate relief. So a concern that Justice 331 00:18:29,680 --> 00:18:32,560 Speaker 9: Jackson raised and that I share, even though I think 332 00:18:32,600 --> 00:18:36,080 Speaker 9: she oversimplifies a bit, is that, you know, the incentives 333 00:18:36,320 --> 00:18:41,520 Speaker 9: on state prison employees to respect religious inmates rights, those 334 00:18:41,560 --> 00:18:43,920 Speaker 9: incentives are going to be muted a bit if they're 335 00:18:43,960 --> 00:18:47,719 Speaker 9: not subject to damages for you know, egregious violations. I mean, 336 00:18:47,760 --> 00:18:50,399 Speaker 9: this wasn't kind of a judgment call reasonable minds can 337 00:18:50,440 --> 00:18:52,600 Speaker 9: disagree kind of thing. It's very clear on the facts 338 00:18:52,600 --> 00:18:56,359 Speaker 9: of this case that mister Landor's rights were again outrageously violated. 339 00:18:56,480 --> 00:18:58,159 Speaker 9: And so there's a concern, and this is one of 340 00:18:58,200 --> 00:19:00,919 Speaker 9: the concerns that Justice Jackson raised and that I share, 341 00:19:01,200 --> 00:19:04,199 Speaker 9: is that the effectiveness of the statute, which I mean, 342 00:19:04,240 --> 00:19:06,160 Speaker 9: as you said earlier, to the point of the whole 343 00:19:06,160 --> 00:19:09,000 Speaker 9: statue was to protect prisoners religious freedom rights is going 344 00:19:09,080 --> 00:19:11,879 Speaker 9: to be weakened or undermined if that kind of what 345 00:19:11,920 --> 00:19:14,640 Speaker 9: do you want to call it stick is pulled away? 346 00:19:14,960 --> 00:19:18,639 Speaker 2: Could Landor have sued the state and the state prison system. 347 00:19:18,880 --> 00:19:21,080 Speaker 9: Yeah, so this is about a particular cause of action, 348 00:19:21,320 --> 00:19:24,160 Speaker 9: and you know, there are almost certainly other ones that 349 00:19:24,240 --> 00:19:27,280 Speaker 9: in theory could have been available to him. And you know, again, 350 00:19:27,280 --> 00:19:30,919 Speaker 9: my hope is that some states will respond by making 351 00:19:30,960 --> 00:19:34,120 Speaker 9: sure that they create additional causes of action for prisoners 352 00:19:34,160 --> 00:19:35,959 Speaker 9: like this. But you know, there's a tendency, we're all 353 00:19:36,000 --> 00:19:37,879 Speaker 9: familiar with it that it's easy to kind of lose 354 00:19:37,960 --> 00:19:40,159 Speaker 9: sight of prisoners and their rights. 355 00:19:40,200 --> 00:19:42,080 Speaker 1: You know, out of sight, out of mind, we tend 356 00:19:42,119 --> 00:19:43,560 Speaker 1: to other our prisoners. 357 00:19:43,640 --> 00:19:46,160 Speaker 9: But it isn't the case that this decision means that 358 00:19:46,280 --> 00:19:49,119 Speaker 9: Landor would never have any relief for this kind of violation. 359 00:19:49,240 --> 00:19:52,840 Speaker 9: And the decision is limited to relief under this particular statue. 360 00:19:52,880 --> 00:19:56,600 Speaker 2: The Court in twenty twenty allowed Muslim men to sue 361 00:19:56,760 --> 00:20:00,320 Speaker 2: over their inclusion on the FBI's no fly list under 362 00:20:00,440 --> 00:20:04,920 Speaker 2: a sister statute, the Religious Freedom Restoration Act. Explain why 363 00:20:05,000 --> 00:20:07,280 Speaker 2: the same reasoning didn't apply here. 364 00:20:07,840 --> 00:20:10,080 Speaker 9: Yeah, this is an important distinction, or at least it 365 00:20:10,119 --> 00:20:12,920 Speaker 9: was to the course, So the Religious Freedom Restoration Act 366 00:20:13,000 --> 00:20:16,159 Speaker 9: is not a spending power statute. It's a statute that 367 00:20:16,320 --> 00:20:21,200 Speaker 9: rests on Congress's power to enforce the Fourteenth Amendment, and 368 00:20:21,400 --> 00:20:24,120 Speaker 9: it's a statute that only applies to the federal government. 369 00:20:24,240 --> 00:20:27,640 Speaker 9: RALUPA is, on the one hand, much broader. It applies 370 00:20:27,720 --> 00:20:30,040 Speaker 9: to not only the federal government but the states. On 371 00:20:30,080 --> 00:20:33,240 Speaker 9: the other hand, it's also narrower because the basis for it, 372 00:20:33,359 --> 00:20:37,119 Speaker 9: the justification for the RELOOPA statute is this spending power, 373 00:20:37,240 --> 00:20:40,520 Speaker 9: and the lines of doctrine about Congress's power under the 374 00:20:40,560 --> 00:20:43,840 Speaker 9: fourteenth Amendment are just different from the lines of precedent 375 00:20:44,000 --> 00:20:46,760 Speaker 9: about Congress's power under the spending clause. And again, I 376 00:20:46,800 --> 00:20:48,400 Speaker 9: know this is really the kind of thing that makes 377 00:20:48,440 --> 00:20:51,200 Speaker 9: normal people's eyes lays over, So I apologize to anybody 378 00:20:51,240 --> 00:20:53,720 Speaker 9: who's listening to it. But for legal purposes, it really 379 00:20:53,800 --> 00:20:57,080 Speaker 9: does make a difference which power Congress is using. And 380 00:20:57,200 --> 00:21:00,320 Speaker 9: with RALUPA, because it was only applying to the federal government, 381 00:21:00,480 --> 00:21:04,119 Speaker 9: these federalism concerns are not in play. Congress is perfectly 382 00:21:04,359 --> 00:21:07,200 Speaker 9: within its rights to subject the federal government to various 383 00:21:07,200 --> 00:21:09,840 Speaker 9: standards of liability and to create causes of action against 384 00:21:09,840 --> 00:21:12,000 Speaker 9: the federal government. But because we have a federalist system, 385 00:21:12,119 --> 00:21:15,600 Speaker 9: it's more complicated when Congress imposes standards on the states. 386 00:21:15,640 --> 00:21:16,919 Speaker 1: And that's what explains the difference. 387 00:21:16,960 --> 00:21:19,119 Speaker 2: Can you explain why this would be a you know, 388 00:21:19,160 --> 00:21:21,520 Speaker 2: there was an ideological split, why it would be a 389 00:21:21,560 --> 00:21:23,720 Speaker 2: conservative liberal split on this. 390 00:21:24,160 --> 00:21:26,520 Speaker 9: Again, this is generalizing with these labels and so on, 391 00:21:26,600 --> 00:21:28,960 Speaker 9: but it tends to be the case that the conservatives 392 00:21:29,000 --> 00:21:31,639 Speaker 9: are more interested in federalism, and it tends to be 393 00:21:31,720 --> 00:21:36,560 Speaker 9: the case that the liberals are more friendly to Congress's. 394 00:21:36,040 --> 00:21:37,920 Speaker 1: Power to create causes of action. 395 00:21:38,080 --> 00:21:41,960 Speaker 9: What divided the court was not the importance of religious freedom. 396 00:21:41,960 --> 00:21:43,240 Speaker 9: You know, a couple of years ago, we had a 397 00:21:43,359 --> 00:21:45,960 Speaker 9: case involving a Muslim prisoner who wanted to grow a beard, 398 00:21:46,119 --> 00:21:48,720 Speaker 9: and it was nine to zero. Everybody agreed on the 399 00:21:48,760 --> 00:21:51,280 Speaker 9: importance of that under LUPA, but there was no question 400 00:21:51,359 --> 00:21:54,240 Speaker 9: about federalism in that case because the cause of action 401 00:21:54,480 --> 00:21:57,840 Speaker 9: wasn't against a person in his individual capacity, it was 402 00:21:57,880 --> 00:22:00,760 Speaker 9: against the prison system. So the justices, you know, whether 403 00:22:00,760 --> 00:22:04,000 Speaker 9: they're appointed by Democrats or Republicans, they all agree that 404 00:22:04,040 --> 00:22:06,760 Speaker 9: the religious freedom rights of prisoners are important, but divided 405 00:22:06,800 --> 00:22:09,360 Speaker 9: them here were these issues that divide them in lots 406 00:22:09,359 --> 00:22:12,480 Speaker 9: of cases, debates about federal power and debates about the 407 00:22:12,520 --> 00:22:14,080 Speaker 9: ability to create causes of action. 408 00:22:14,359 --> 00:22:17,920 Speaker 2: There's been a string of victories for religious liberties at 409 00:22:17,960 --> 00:22:21,480 Speaker 2: the Supreme Court. I mean, when was the last time 410 00:22:21,600 --> 00:22:26,600 Speaker 2: that there was a defeat for religious interests at the Court. 411 00:22:26,800 --> 00:22:29,359 Speaker 1: I'm thinking out loud here. It is the first in 412 00:22:29,440 --> 00:22:29,800 Speaker 1: a while. 413 00:22:29,960 --> 00:22:34,000 Speaker 9: So certainly religious freedom claimants have done well with this court. 414 00:22:34,320 --> 00:22:34,480 Speaker 3: Now. 415 00:22:34,520 --> 00:22:37,399 Speaker 9: I suppose some might say, for example, that when a 416 00:22:37,480 --> 00:22:41,399 Speaker 9: claimant filed a lawsuit against the War Memorial Cross in 417 00:22:41,440 --> 00:22:43,719 Speaker 9: the American Legion case, that they were seeking to vindicate 418 00:22:43,720 --> 00:22:46,160 Speaker 9: their religious freedom and they lost. But I think it's 419 00:22:46,160 --> 00:22:48,800 Speaker 9: certainly true that this court has been friendly to religious 420 00:22:48,800 --> 00:22:51,119 Speaker 9: freedom claims. But you know, I can't think of any 421 00:22:51,160 --> 00:22:54,240 Speaker 9: of those claims that involved the same federalism concerns that 422 00:22:54,280 --> 00:22:56,840 Speaker 9: this one did. Probably the last case I can think 423 00:22:56,840 --> 00:23:00,680 Speaker 9: of whether religious freedom claimants lost was Trump versus, which 424 00:23:00,720 --> 00:23:02,760 Speaker 9: was a challenge to this so called Muslim band that 425 00:23:02,800 --> 00:23:05,040 Speaker 9: the Trump administration had put into place early in its 426 00:23:05,080 --> 00:23:06,480 Speaker 9: first administration. 427 00:23:06,080 --> 00:23:09,679 Speaker 2: And that was back in twenty eighteen. So certainly, a 428 00:23:09,800 --> 00:23:14,040 Speaker 2: long string of victories for religious claimants, eight years of 429 00:23:14,119 --> 00:23:18,520 Speaker 2: expansion of religious rights. So he's great to get your insights, Rick, 430 00:23:18,600 --> 00:23:22,000 Speaker 2: thanks so much. That's Professor Richard Garnett of Notre Dame 431 00:23:22,119 --> 00:23:25,320 Speaker 2: Law School coming up next on the Bloomberg Law Show. 432 00:23:25,560 --> 00:23:28,600 Speaker 2: In another six to three decision this week, the court 433 00:23:28,680 --> 00:23:32,159 Speaker 2: reinstated the conviction of the man found to have killed 434 00:23:32,240 --> 00:23:36,199 Speaker 2: Eton Pates, the six year old boy whose disappearance in 435 00:23:36,359 --> 00:23:40,200 Speaker 2: nineteen seventy nine changed the way the public viewed missing 436 00:23:40,280 --> 00:23:43,560 Speaker 2: children's cases. And remember, you can always get the latest 437 00:23:43,600 --> 00:23:47,119 Speaker 2: legal news by listening to our Bloomberg Law podcasts. You 438 00:23:47,200 --> 00:23:51,159 Speaker 2: can find them on Apple Podcasts, Spotify and at Bloomberg 439 00:23:51,200 --> 00:23:55,600 Speaker 2: dot com, Slash podcast, Slash Law. I'm June Grosso and 440 00:23:55,680 --> 00:24:00,360 Speaker 2: you're listening to Bloomberg. The smiling face of a six 441 00:24:00,480 --> 00:24:04,639 Speaker 2: year old boy stared back from countless milk cartons after 442 00:24:04,720 --> 00:24:07,440 Speaker 2: he disappeared on the way to school in New York 443 00:24:07,480 --> 00:24:11,919 Speaker 2: City in nineteen seventy nine. The disappearance of Aton Pates 444 00:24:12,160 --> 00:24:15,840 Speaker 2: was one of the country's most notorious missing child cases. 445 00:24:16,160 --> 00:24:20,359 Speaker 2: It sparked a nationwide campaign to find missing children and 446 00:24:20,520 --> 00:24:24,320 Speaker 2: change the way law enforcement handles the cases. Pates was 447 00:24:24,400 --> 00:24:27,840 Speaker 2: never found, and it took nearly forty years before the 448 00:24:27,960 --> 00:24:32,760 Speaker 2: arrest and conviction of Pablo Hernandez for his kidnapping and murder. 449 00:24:32,960 --> 00:24:37,639 Speaker 2: Aton's father, Stanley Pates, said he finally got the answers 450 00:24:37,720 --> 00:24:38,920 Speaker 2: he'd been searching for. 451 00:24:39,280 --> 00:24:42,520 Speaker 8: I needed to know what happened to my son, and 452 00:24:44,040 --> 00:24:48,080 Speaker 8: this great prosecution team finally proved it. 453 00:24:48,400 --> 00:24:51,720 Speaker 2: But then there were the appeals. New York appellate courts 454 00:24:51,800 --> 00:24:55,840 Speaker 2: affirmed the conviction, but last year the Second Circuit, a 455 00:24:55,840 --> 00:24:59,439 Speaker 2: federal appellate court, reversed and ordered a new trial for 456 00:24:59,480 --> 00:25:02,240 Speaker 2: Hernandez as because of the way the trial judge had 457 00:25:02,320 --> 00:25:06,639 Speaker 2: answered a question from the jury. But this week another reversal, 458 00:25:06,960 --> 00:25:10,640 Speaker 2: this time from the Supreme Court, reversing the Second Circuit 459 00:25:10,800 --> 00:25:15,760 Speaker 2: and reinstating Hernandez's conviction for the kidnapping and murder of 460 00:25:15,840 --> 00:25:20,160 Speaker 2: Aton Pates. My guest his former Manhattan prosecutor and criminal 461 00:25:20,200 --> 00:25:25,320 Speaker 2: defense attorney, Paul Callen. Paul, the disappearance of Aton Pates 462 00:25:25,720 --> 00:25:30,320 Speaker 2: became national news, and he really became the poster child 463 00:25:30,440 --> 00:25:31,560 Speaker 2: for missing children. 464 00:25:32,000 --> 00:25:33,400 Speaker 8: You're absolutely right about that. 465 00:25:33,480 --> 00:25:36,120 Speaker 6: As a matter of fact, I think this case has 466 00:25:36,240 --> 00:25:40,679 Speaker 6: altered child rearing in the United States permanently. You know, 467 00:25:40,680 --> 00:25:42,760 Speaker 6: it used to be mom would send kids out the 468 00:25:42,840 --> 00:25:45,159 Speaker 6: back door and say go play, come back for supper. 469 00:25:45,520 --> 00:25:45,879 Speaker 8: Now. 470 00:25:46,000 --> 00:25:48,760 Speaker 6: The parents follow them around, follow them to the bus stop. 471 00:25:48,920 --> 00:25:51,040 Speaker 6: They're all terrified. The kids are going to be kidnapped. 472 00:25:51,080 --> 00:25:54,080 Speaker 6: And it all started with Eton Pates who was going 473 00:25:54,200 --> 00:25:57,159 Speaker 6: to catch a bus to his school in Soho in 474 00:25:57,240 --> 00:26:01,480 Speaker 6: New York, and he was kidnapped and apparently murdered. And 475 00:26:01,800 --> 00:26:04,800 Speaker 6: only recently have we had a final resolution of the 476 00:26:04,880 --> 00:26:07,880 Speaker 6: case in terms of who committed the murder. An individual 477 00:26:08,000 --> 00:26:11,879 Speaker 6: named Hernandez, whose conviction was now re affirmed by the 478 00:26:11,880 --> 00:26:12,879 Speaker 6: Supreme Court. 479 00:26:12,800 --> 00:26:15,280 Speaker 2: Tell us about the confession because there were some troubling 480 00:26:15,320 --> 00:26:16,520 Speaker 2: things about the confession. 481 00:26:16,920 --> 00:26:17,640 Speaker 8: Yes, there were. 482 00:26:17,920 --> 00:26:21,520 Speaker 6: His brother in law reported to the police that his 483 00:26:22,000 --> 00:26:26,360 Speaker 6: quote low IQ relative has confessed to the murder, and 484 00:26:26,600 --> 00:26:30,040 Speaker 6: Camden County, New Jersey, police pick him up and they 485 00:26:30,080 --> 00:26:33,520 Speaker 6: start questioning him, but they don't give him as Miranda warnings. 486 00:26:33,600 --> 00:26:36,760 Speaker 6: He confesses that he was working in a bodega in 487 00:26:36,920 --> 00:26:40,320 Speaker 6: Soho when Eton Pates came in to buy a drink 488 00:26:40,440 --> 00:26:42,399 Speaker 6: as he was on his way to the bus stop, 489 00:26:42,560 --> 00:26:46,240 Speaker 6: and that he murdered eton Pates and disposed of the body, 490 00:26:46,440 --> 00:26:50,399 Speaker 6: presumably throwing the body into a dumpster behind the Delhi. 491 00:26:50,880 --> 00:26:53,760 Speaker 6: Full confession to the murder. The police, then, who have 492 00:26:53,880 --> 00:26:57,600 Speaker 6: not given him his Miranda warnings, now say we should 493 00:26:57,600 --> 00:27:00,959 Speaker 6: give him the Miranda warnings and videotape this confession. And 494 00:27:01,000 --> 00:27:03,800 Speaker 6: that's exactly what they do. They give him Miranda warnings, 495 00:27:04,119 --> 00:27:07,960 Speaker 6: videotape the confession, and then they call the District Attorney's 496 00:27:07,960 --> 00:27:10,680 Speaker 6: office in New York and say, you better come out here. 497 00:27:10,720 --> 00:27:13,720 Speaker 6: We have somebody confessing to the murder of Eton Pates. Now, 498 00:27:13,720 --> 00:27:15,720 Speaker 6: this was a case that had gone cold for a 499 00:27:15,760 --> 00:27:19,840 Speaker 6: long time, so obviously the Manhattan DIA's Office was very 500 00:27:19,840 --> 00:27:23,280 Speaker 6: interested in that. Apparently, while all of this is going on, 501 00:27:23,640 --> 00:27:27,719 Speaker 6: Bernandez also talks to his wife and his daughter Rosemary 502 00:27:27,760 --> 00:27:30,840 Speaker 6: and Becky, and he confesses to both of them that 503 00:27:30,920 --> 00:27:34,280 Speaker 6: he's in fact the person who killed eton Pates. He's 504 00:27:34,320 --> 00:27:37,440 Speaker 6: then picked up by the Manhattan DIA's office taken back 505 00:27:37,480 --> 00:27:41,159 Speaker 6: into New York where he confesses again to the murder, 506 00:27:41,200 --> 00:27:43,800 Speaker 6: this time again on videotape. So we now have two 507 00:27:43,920 --> 00:27:48,600 Speaker 6: videotaped confessions. Later on, during pre trial proceedings, he meets 508 00:27:48,640 --> 00:27:52,520 Speaker 6: with a psychiatrist. He confesses to the psychiatrist that he's 509 00:27:52,560 --> 00:27:56,119 Speaker 6: the murderer, and while giving that confession, he also tells 510 00:27:56,160 --> 00:27:59,199 Speaker 6: the psychiatrist that he admitted this to a prayer group 511 00:27:59,320 --> 00:28:01,920 Speaker 6: at one point over the last twenty years. So by 512 00:28:01,960 --> 00:28:06,240 Speaker 6: my count I think he's confessed now seven times to 513 00:28:06,320 --> 00:28:06,800 Speaker 6: the murder. 514 00:28:07,160 --> 00:28:10,720 Speaker 2: A question the jury posed to the judge during deliberations 515 00:28:10,960 --> 00:28:14,160 Speaker 2: became a defining issue for the second circuit. So tell 516 00:28:14,240 --> 00:28:15,199 Speaker 2: us about that question. 517 00:28:15,640 --> 00:28:18,639 Speaker 6: So the case goes to trial in New York. The 518 00:28:18,680 --> 00:28:21,520 Speaker 6: first trial, by the way, ends in a hung jury. 519 00:28:21,600 --> 00:28:25,760 Speaker 6: He's retried, and the second jury comes back with a 520 00:28:25,920 --> 00:28:29,159 Speaker 6: jury question, and the jury question is this, if he 521 00:28:29,359 --> 00:28:34,520 Speaker 6: was not given his Miranda warnings properly and therefore did 522 00:28:34,560 --> 00:28:39,200 Speaker 6: not voluntarily confess, is it okay for us to consider 523 00:28:39,280 --> 00:28:41,680 Speaker 6: the other confessions that occurred after this? 524 00:28:42,120 --> 00:28:44,440 Speaker 8: In substance? That was the question that was asked by 525 00:28:44,440 --> 00:28:44,920 Speaker 8: the jury. 526 00:28:45,160 --> 00:28:47,680 Speaker 6: The way they phrased it was, the jury said, do 527 00:28:47,760 --> 00:28:52,840 Speaker 6: we have to disregard the subsequent confessions if the first 528 00:28:52,880 --> 00:28:54,760 Speaker 6: confession was not voluntary? 529 00:28:54,840 --> 00:28:56,200 Speaker 8: The judge says. 530 00:28:56,280 --> 00:29:00,400 Speaker 6: One word, no, no, you don't have to disregard the 531 00:29:00,560 --> 00:29:04,960 Speaker 6: subsequent confessions. And after that, the jury deliberates for another 532 00:29:05,080 --> 00:29:09,160 Speaker 6: week and they find Hernandez guilty of the kidnapping and 533 00:29:09,280 --> 00:29:10,600 Speaker 6: murder of Eton Pates. 534 00:29:11,000 --> 00:29:14,520 Speaker 2: So through the state the state appellate courts affirmed the conviction, 535 00:29:14,840 --> 00:29:18,760 Speaker 2: and then the federal appellate Court, the Second Circuit, in 536 00:29:18,800 --> 00:29:22,720 Speaker 2: one hundred page opinion last year, reversed and ordered that 537 00:29:22,760 --> 00:29:23,840 Speaker 2: he get a new trial. 538 00:29:24,480 --> 00:29:28,960 Speaker 6: The decision was based on the judge's instructions to the 539 00:29:29,080 --> 00:29:32,200 Speaker 6: jury when they came back with a question, that question 540 00:29:32,320 --> 00:29:34,840 Speaker 6: that I just repeated, do we have to disregard the 541 00:29:34,880 --> 00:29:37,400 Speaker 6: subsequent confessions where the judge. 542 00:29:37,120 --> 00:29:38,120 Speaker 8: Just said no. 543 00:29:38,600 --> 00:29:41,160 Speaker 6: Bear in mind that the Appellate Division in New York, the 544 00:29:41,240 --> 00:29:43,080 Speaker 6: state Court, they looked at it and they said, you 545 00:29:43,080 --> 00:29:45,880 Speaker 6: know something, it's all right. The question of whether a 546 00:29:46,080 --> 00:29:49,600 Speaker 6: confession is voluntary or is generally decided by a judge. 547 00:29:49,640 --> 00:29:52,480 Speaker 6: It's not usually decided by a jury. And so the 548 00:29:52,480 --> 00:29:56,200 Speaker 6: Appellate Division said, under New York law, the way this 549 00:29:56,360 --> 00:30:00,840 Speaker 6: confession was evaluated was perfectly proper. So then they go 550 00:30:00,920 --> 00:30:04,520 Speaker 6: into federal court with this, and the Second Circuit looks 551 00:30:04,560 --> 00:30:07,479 Speaker 6: at it and they say, well, we think there's a 552 00:30:07,520 --> 00:30:11,760 Speaker 6: problem here. The judge should have explained in more detail, 553 00:30:11,880 --> 00:30:15,200 Speaker 6: other than saying no to the jury, that there could 554 00:30:15,200 --> 00:30:18,440 Speaker 6: be a problem with the confession, that there was insufficient 555 00:30:18,480 --> 00:30:23,520 Speaker 6: what we call attenuation between the initial confession and the 556 00:30:23,560 --> 00:30:27,360 Speaker 6: subsequent confession, which also gets us back to another rule, 557 00:30:27,760 --> 00:30:32,040 Speaker 6: which is the Mitchell versus Siebert rule that came about 558 00:30:32,320 --> 00:30:36,360 Speaker 6: when the cops were misusing Miranda warnings, and what they 559 00:30:36,360 --> 00:30:39,080 Speaker 6: would do is they would bring you into the station, 560 00:30:39,520 --> 00:30:42,120 Speaker 6: get you to confess to a crime, and after you 561 00:30:42,240 --> 00:30:45,680 Speaker 6: gave the complete detailed confession, they'd walk out of the 562 00:30:45,760 --> 00:30:47,520 Speaker 6: room and then they'd come back in and give you 563 00:30:47,520 --> 00:30:50,840 Speaker 6: your Miranda warnings and say, by the way, that confession, 564 00:30:51,200 --> 00:30:53,440 Speaker 6: can you repeat that please for the record, And now 565 00:30:53,440 --> 00:30:56,720 Speaker 6: they videotape your confession. Now, when the federal courts looked 566 00:30:56,760 --> 00:30:59,560 Speaker 6: at this, they said, this is completely improper. It's an 567 00:30:59,600 --> 00:31:03,240 Speaker 6: attempt to get around the Miranda warnings. And once somebody 568 00:31:03,280 --> 00:31:07,000 Speaker 6: has been possibly coerced into giving a confession because they 569 00:31:07,040 --> 00:31:09,880 Speaker 6: haven't heard the Miranda warnings, of course they're going to 570 00:31:09,920 --> 00:31:14,000 Speaker 6: repeat the confession. So this Missouri Versus Sebert case said, basically, 571 00:31:14,360 --> 00:31:18,200 Speaker 6: this is an improper method of administering the Miranda warnings 572 00:31:18,200 --> 00:31:20,800 Speaker 6: and if it's done deliberately by the police, the confession 573 00:31:20,880 --> 00:31:23,440 Speaker 6: has to be thrown out. So this comes up now 574 00:31:23,480 --> 00:31:27,120 Speaker 6: in the Hernandez case, because does that violate the Missouri 575 00:31:27,200 --> 00:31:31,320 Speaker 6: versus Sebert rule. Well, the court in New York said, no, 576 00:31:31,400 --> 00:31:34,920 Speaker 6: there was no violation of that in our opinion. But 577 00:31:35,040 --> 00:31:37,120 Speaker 6: when it goes over to the federal court, the federal 578 00:31:37,120 --> 00:31:39,840 Speaker 6: court says, yes, there was a violation of that. 579 00:31:40,360 --> 00:31:44,600 Speaker 2: So the Second Circuit reversed the conviction and ordered a 580 00:31:44,600 --> 00:31:48,800 Speaker 2: new trial for Hernandez. But the Manhattan District Attorney's office 581 00:31:49,160 --> 00:31:51,920 Speaker 2: took that decision to the highest court. 582 00:31:51,960 --> 00:31:54,720 Speaker 6: The state, and this is very unusual, goes to the 583 00:31:54,760 --> 00:31:57,760 Speaker 6: Supreme Court to try to get a conviction reinstated. You know, 584 00:31:57,880 --> 00:32:00,800 Speaker 6: usually you see a defendant has been convicted going to 585 00:32:00,840 --> 00:32:02,640 Speaker 6: the Supreme Court to get his case thrown out. 586 00:32:02,720 --> 00:32:05,560 Speaker 8: This is the opposite. The prosecutor's looking for justice now. 587 00:32:05,840 --> 00:32:07,560 Speaker 8: So now when they go to. 588 00:32:07,480 --> 00:32:10,560 Speaker 6: The Supreme Court, the Supreme Court says, no, there was 589 00:32:10,600 --> 00:32:14,640 Speaker 6: no violation here because the state looked at it under 590 00:32:14,720 --> 00:32:19,880 Speaker 6: state law. The administration of Miranda Warnings was done properly. 591 00:32:20,120 --> 00:32:23,720 Speaker 6: There was proper attenuation, and that's a question for the judge, 592 00:32:23,760 --> 00:32:27,840 Speaker 6: not the jury. The Seber case never said anything about 593 00:32:28,040 --> 00:32:32,040 Speaker 6: jury instructions. So this is an overreach by the Second Circuit, 594 00:32:32,240 --> 00:32:34,600 Speaker 6: and there was no right for a habeas corpus to 595 00:32:34,640 --> 00:32:36,760 Speaker 6: be brought here, So we're reinstating the conviction. 596 00:32:37,160 --> 00:32:40,800 Speaker 2: Paul, did the Supreme Court reverse because the Second Circuit 597 00:32:41,200 --> 00:32:45,480 Speaker 2: didn't properly follow federal law or because state law should 598 00:32:45,520 --> 00:32:46,320 Speaker 2: have applied here? 599 00:32:46,960 --> 00:32:50,560 Speaker 6: Well, it's a complex question because they're saying that in 600 00:32:50,640 --> 00:32:56,440 Speaker 6: this situation, the state had the right to evaluate whether 601 00:32:56,800 --> 00:33:01,240 Speaker 6: there was a proper attenuation of the confession, in other words, 602 00:33:01,280 --> 00:33:06,400 Speaker 6: whether the secondary administration of miranda warnings by the Manhattan 603 00:33:06,480 --> 00:33:11,120 Speaker 6: DA and by the police violated New York law. And 604 00:33:11,400 --> 00:33:14,400 Speaker 6: New York said, no, that doesn't violate our law. And 605 00:33:14,880 --> 00:33:18,360 Speaker 6: in New York a jury can sometimes decide whether a 606 00:33:18,400 --> 00:33:22,720 Speaker 6: confession is voluntary or not under federal law, that's generally 607 00:33:22,880 --> 00:33:27,000 Speaker 6: a judge determination that's been made. So the Supreme Court, 608 00:33:27,520 --> 00:33:31,160 Speaker 6: looking at this overall, said, well, we've looked at this 609 00:33:31,480 --> 00:33:35,640 Speaker 6: and there's no violation of federal law as it exists. 610 00:33:36,080 --> 00:33:38,880 Speaker 6: And if there was a violation of state law, the 611 00:33:38,960 --> 00:33:42,240 Speaker 6: state has already made a decision here that there was 612 00:33:42,320 --> 00:33:45,040 Speaker 6: no violation of New York state law. So the federal 613 00:33:45,080 --> 00:33:48,680 Speaker 6: government has no business interfering in how the State of 614 00:33:48,720 --> 00:33:52,440 Speaker 6: New York interprets the administration of the Miranda warnings and 615 00:33:52,640 --> 00:33:55,040 Speaker 6: the confession is a voluntary confession. 616 00:33:55,280 --> 00:33:56,520 Speaker 8: So it's kind of a. 617 00:33:56,600 --> 00:33:59,800 Speaker 6: Question of how you evaluate due process under state and 618 00:33:59,800 --> 00:34:04,520 Speaker 6: federal law on whether there's a conflict between the sovereign entities. 619 00:34:04,520 --> 00:34:06,880 Speaker 6: And here the Supreme Court was saying, you know, there 620 00:34:06,880 --> 00:34:09,399 Speaker 6: are certain things that we leave to the state, and 621 00:34:09,880 --> 00:34:13,279 Speaker 6: the Federal Habeas Corpus Act says we should leave most 622 00:34:13,280 --> 00:34:18,320 Speaker 6: of those things alone unless it's an absolutely egregious violation 623 00:34:18,760 --> 00:34:22,399 Speaker 6: of somebody's constitutional rights. And let's step back and look 624 00:34:22,400 --> 00:34:23,080 Speaker 6: at this case. 625 00:34:23,160 --> 00:34:23,560 Speaker 8: Tune. 626 00:34:23,640 --> 00:34:27,279 Speaker 6: The guy confessed seven times to the murder, all right, 627 00:34:27,600 --> 00:34:30,800 Speaker 6: So I think the Supreme Court was looking at it saying, well, 628 00:34:31,160 --> 00:34:33,440 Speaker 6: you know, we're not worried about whether we have the 629 00:34:33,520 --> 00:34:36,840 Speaker 6: right guy or not. We're just looking at some technicalities here. 630 00:34:37,280 --> 00:34:40,720 Speaker 6: And the New York courts looked at those technicalities and said, 631 00:34:41,000 --> 00:34:43,839 Speaker 6: there's no violation of New York law here, so we're 632 00:34:43,880 --> 00:34:46,240 Speaker 6: not going to set it aside because there's no violation 633 00:34:46,320 --> 00:34:47,040 Speaker 6: of federal law. 634 00:34:47,440 --> 00:34:50,040 Speaker 2: I mean, the Second Circuit basically wanted the judge to 635 00:34:50,080 --> 00:34:54,680 Speaker 2: start explaining to the jury a concurring opinion by Justice 636 00:34:54,760 --> 00:34:57,200 Speaker 2: Kennedy in a case from more than twenty years ago. 637 00:34:57,480 --> 00:35:00,719 Speaker 2: I mean, it just seemed ridiculous to put in legal terms. 638 00:35:00,719 --> 00:35:03,560 Speaker 8: That's exactly what the Second Circuit said. 639 00:35:04,000 --> 00:35:06,160 Speaker 6: And by the way, people should know, this is what's 640 00:35:06,200 --> 00:35:09,799 Speaker 6: called a per curiam decision by the Supreme Court, which 641 00:35:10,160 --> 00:35:12,839 Speaker 6: means a decision by the court. We don't know who 642 00:35:12,880 --> 00:35:15,560 Speaker 6: authored this opinion, but we do know that the three 643 00:35:16,080 --> 00:35:18,840 Speaker 6: liberal justices on the court voted against. 644 00:35:18,880 --> 00:35:20,640 Speaker 8: So it was a six' to three decision by the. 645 00:35:20,680 --> 00:35:24,480 Speaker 2: Court nothing from the liberals about why they were dissenting 646 00:35:24,560 --> 00:35:25,000 Speaker 2: on this. 647 00:35:25,480 --> 00:35:28,840 Speaker 6: Very, unusual because you, know these per curiam decisions are 648 00:35:28,920 --> 00:35:31,760 Speaker 6: usually very very, short but this WAS i think at eleven, page, 649 00:35:31,840 --> 00:35:34,880 Speaker 6: yeah very very detailed decision by the. Court and you 650 00:35:34,920 --> 00:35:38,480 Speaker 6: would think that the three justices who were dissenting would 651 00:35:38,560 --> 00:35:41,319 Speaker 6: have weighed in as to why they disagreed with the 652 00:35:41,360 --> 00:35:42,440 Speaker 6: other six members of the. 653 00:35:42,480 --> 00:35:44,719 Speaker 8: Court but, no they said. Nothing they just said we. 654 00:35:44,840 --> 00:35:47,120 Speaker 6: Dissent SO i don't know what the basis of their 655 00:35:47,200 --> 00:35:50,400 Speaker 6: descent would, be and we'll never know because this case 656 00:35:50,640 --> 00:35:53,000 Speaker 6: is for all practical purposes. OVER i, mean it'll go 657 00:35:53,080 --> 00:35:54,920 Speaker 6: back to The State court and the sentence will be 658 00:35:55,080 --> 00:35:56,719 Speaker 6: reimposed and that'll be the end of. 659 00:35:56,760 --> 00:35:59,719 Speaker 2: It and Aton pate, says father told The New York 660 00:35:59,760 --> 00:36:02,799 Speaker 2: Times times that The Supreme court decision gave him a 661 00:36:02,880 --> 00:36:05,680 Speaker 2: sense of relief that he wouldn't have to go through 662 00:36:05,960 --> 00:36:09,600 Speaker 2: a third trial and relive those memories and the loss 663 00:36:09,600 --> 00:36:12,239 Speaker 2: of his, son and this time without his, wife who 664 00:36:12,320 --> 00:36:15,680 Speaker 2: died six years. Ago so truly the end of such 665 00:36:15,719 --> 00:36:19,360 Speaker 2: a sad. Case thanks for your, Insights. Paul that's Former 666 00:36:19,400 --> 00:36:23,880 Speaker 2: manhattan prosecutor and criminal defense Attorney Paul callan of counsel 667 00:36:23,960 --> 00:36:26,480 Speaker 2: At aidelman And. Adelman and that's it for this edition 668 00:36:26,480 --> 00:36:29,120 Speaker 2: Of The Bloomberg Law. Show remember you can always get 669 00:36:29,160 --> 00:36:32,319 Speaker 2: the latest legal news on Our Bloomberg Law. Podcast you 670 00:36:32,360 --> 00:36:36,440 Speaker 2: can find them On Apple, Podcasts, spotify and at www 671 00:36:36,560 --> 00:36:40,840 Speaker 2: Dot bloomberg dot, com slash Podcast Slash, law and remember 672 00:36:40,880 --> 00:36:43,839 Speaker 2: to tune Into The Bloomberg Law show every weeknight at 673 00:36:43,840 --> 00:36:47,319 Speaker 2: ten Pm Wall Street. Time I'm June grosso and you're 674 00:36:47,400 --> 00:36:48,640 Speaker 2: listening To bloomberg