Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. It's the beginning
Speaker 1: of a new Supreme Court term, and one that will
Speaker 1: run the gamut of polarizing issues gay and transgender rights, abortion,
Speaker 1: gun control, and DACA, which decisions that will affect millions
Speaker 1: of Americans coming during the run up to next year's election.
Speaker 1: Joining me as former United States Solicitor General Gregory gar
Speaker 1: a partner at Latham and Watkins and global chair of
Speaker 1: the firm Supreme Court and Appellate Practice. The Court is
Speaker 1: obviously going to consider a lot of controversial issues. Is
Speaker 1: there one that stands out in your mind? I think
Speaker 1: what's unique about this term, at least compared to the
Speaker 1: last couple of years, is just how many hot button
Speaker 1: issues it's put on its played. I mean, it seems
Speaker 1: as though it tried to a low the last couple
Speaker 1: of terms to the extent possible, and now it's got
Speaker 1: a whole menu of issues ranging from abortion, guns, religion
Speaker 1: dot gay rights, and so it's it's hard to single
Speaker 1: one out. I think what's unique is just the bevy
Speaker 1: of controversial issues before it. Let's start then with gay rights,
Speaker 1: which is going to be heard tomorrow. Justice Kenny was
Speaker 1: the pivotal vote in all the Court's gay rights decisions.
Speaker 1: So does this put the spotlight on Justice Brett Kavanaugh.
Speaker 1: I think, you know, certainly it's significant, and that will
Speaker 1: be the first time that we hear from Justice is
Speaker 1: Gorsoch and Kavanaugh in this area. I mean, particularly given
Speaker 1: Justice Kennedy's retirement. I do think that these cases are
Speaker 1: different than the gay marriage cases and the like that
Speaker 1: were decided several years ago, and that these are really
Speaker 1: going to be focused on the text of the statute.
Speaker 1: In some sense, are statutory interpretation cases, albeit ones that
Speaker 1: have a obviously crucial impact in a particular segment. And
Speaker 1: do you have an opinion as to which side has
Speaker 1: a better case of statutory interpretation. I don't, at least
Speaker 1: not one here today. I think what I would say
Speaker 1: what's really interesting about this case though, is that you know,
Speaker 1: both sides have approached it from an interpretation perspective and
Speaker 1: have relied on various aspects of Justice Scalia's methodology and
Speaker 1: are claiming to, you know, take the throne and statutory interpretation.
Speaker 1: So I think it's a testament to how statutory interpretation
Speaker 1: has changed over the last couple of decades. And it's
Speaker 1: interesting to see both sides coming in with a Scalia
Speaker 1: type approach to the issue. As if the Court didn't
Speaker 1: have enough controversial cases on its docket last Friday, they
Speaker 1: added an abortion case, right, and this is this is
Speaker 1: one that, interestingly that the Court had issued a stay
Speaker 1: in from the lower court's decisions stay in the effect
Speaker 1: of the underlying Louisiana law, which which involves admittance privileges
Speaker 1: to local hospitals and is sort of a follow onto
Speaker 1: the Whole Women's Health case that the Court decided by
Speaker 1: a five three vote a few years ago with Justice
Speaker 1: Kennedy still in the court. So Chief Justice Roberts dissented
Speaker 1: in the Texas case, does that put him in the
Speaker 1: position here of overturning precedent? Well, I mean, I think
Speaker 1: it's a different case today than it was at the
Speaker 1: time of Whole Women's Health and that we now have
Speaker 1: the Whole Women's Health decision, which is entitled to full
Speaker 1: story the scisive effect, So I think, you know, the
Speaker 1: Chief Justice will have to view the case through that lens.
Speaker 1: And obviously the state is arguing that the Texas law
Speaker 1: is different in some respects, and the challenges are arguing
Speaker 1: that it's just like the Texas law, if not worse
Speaker 1: in some respects. And that's the sort of thing that
Speaker 1: the justices are going to have to work through in
Speaker 1: deciding the applicability of the whole Women's health decision. Of course,
Speaker 1: abortion is an area that draws more protests and more
Speaker 1: concerned than a lot of other areas, certainly for women.
Speaker 1: Are you of the opinion, as some legal scholars are,
Speaker 1: that the Court is not going to make any wholesale changes,
Speaker 1: that they're going to sort of go inch by inch
Speaker 1: if they're going to change abortion rights. Well, I think
Speaker 1: you know, this case is very much narrowly focused on
Speaker 1: the same issue that was decided and whole women's health
Speaker 1: in terms of the particular type of state law requiring
Speaker 1: doctors to have admittance privileges at local hospitals. So it's
Speaker 1: you know, it's hard to see the court going broader
Speaker 1: than that in terms of the specific issues presented, and
Speaker 1: certainly no side has suggested that this case involves a
Speaker 1: challenge to Row versus Wade itself. So I think in
Speaker 1: terms of the scope of this decision, all eyes will
Speaker 1: be upon it, and obviously their first sign indication from
Speaker 1: the current court as to where they are in these issues.
Speaker 1: But I think there's only so far the Court could
Speaker 1: go here. When the Chief makes speeches or does q
Speaker 1: and as he often goes out of his way to
Speaker 1: emphasize that the Court is not political. We did this
Speaker 1: last month in a speech in New York, will he
Speaker 1: be able to maintain that with the kinds of cases
Speaker 1: that the Court is going to be deciding this term,
Speaker 1: the kind of issues that divide the country. Oh sure,
Speaker 1: And I think you know, that's a real challenge for
Speaker 1: the Court. I think all the justices are sensitive to that,
Speaker 1: and I think they al would agree with the Chief
Speaker 1: Justice that they don't see themselves as coming from one
Speaker 1: party or the other, but as judges involved in a
Speaker 1: common endeavor. And I think, you know, I wouldn't be
Speaker 1: surprised if we see some unusual lineup among these cases.
Speaker 1: But you know, as to how it all sorts out,
Speaker 1: and whether or not there's a consistent five for majority
Speaker 1: in these cases. You know, that remains to be seen,
Speaker 1: but it's it's certainly something that the court will be
Speaker 1: sensitive to. Let's turn to DHAKA. President Trump's attempt to
Speaker 1: end President Obama's Deferred Action for Childhood Arrivals program. Does
Speaker 1: even illustrations start with an advantage here because it has
Speaker 1: many ways it can win the case, many different arguments.
Speaker 1: I think it does generally speaking. You know, I think certainly,
Speaker 1: as the Court indicated a few terms ago involving the
Speaker 1: travel band case, you know, where the president is acting
Speaker 1: in the field of immigration, he starts with a lot
Speaker 1: of inherent authority, which which is helpful here. You know.
Speaker 1: On the other hand, you know, this case ultimately involves
Speaker 1: an A p A challenge and you know, as we
Speaker 1: saw last term in the Census case, the president you
Speaker 1: can't lose those challenges. So you know, from the challenges perspective,
Speaker 1: I'm sure they'll be trying to take a page out
Speaker 1: of the playbook of that case. You brought up the
Speaker 1: census case, and and that's the case where the Chief
Speaker 1: didn't believe the government's explanation and was the fifth vote
Speaker 1: against the government. Could that happen here. Well, it's certainly possible.
Speaker 1: I mean, I think, you know, you would look at
Speaker 1: the Chief is one of the justices you'd want to
Speaker 1: focus on during oral argument. But you know, I think
Speaker 1: he would be looking at the justifications that the administration
Speaker 1: gave here, you know, focusing on them in particular or
Speaker 1: not necessarily feeling bound by anything in the census case
Speaker 1: or the particular justifications that issue there. So now, the
Speaker 1: Court hasn't heard a Second Amendment case in about a decade.
Speaker 1: It had an opportunity to drop the case over New
Speaker 1: York City strict limits on where licensed hand duds could
Speaker 1: be taken because New York loosen the restrictions, but it's
Speaker 1: going to keep it on the docket, another hot button
Speaker 1: issue during election time. I mean, that's definitely true. It's
Speaker 1: another big issue on the plate. I mean, the Court
Speaker 1: has not gotten back involved in the area of the
Speaker 1: Second Amendment for almost a decade, and a number of
Speaker 1: issues have been piling up in the lower courts, and
Speaker 1: I think it's been inevitable that sooner or later the
Speaker 1: Court was going to have to get back involved here
Speaker 1: to provide some guidance. And you know, here it is
Speaker 1: in the New York case that they decided to do
Speaker 1: that now that New York had filed US gestion of
Speaker 1: muteness on the ground that they had changed the law issue.
Speaker 1: The Court ultimately declined to cancel the argument on that basis,
Speaker 1: but it did something that it not infrequently does, which
Speaker 1: is to refer the motion and the question of muteness
Speaker 1: to the oral argument itself and directed the parties to
Speaker 1: be prepared to address that issue and oral argument. So
Speaker 1: it's still possible that the case would go away on
Speaker 1: that ground. It just means we're going to have an
Speaker 1: argument in November to flesh things out a bit more. Well.
Speaker 1: We might also be having other arguments. The Democrats demand
Speaker 1: for documents and testimony from the President of the White
Speaker 1: House are winding their way through the courts. We saw
Speaker 1: there was a decision in New York and then put
Speaker 1: on hold by the Second Circuit today, So impeachment is
Speaker 1: on the horizon as well. Can the Court avoid getting
Speaker 1: involved in these issues or is it going to have
Speaker 1: to take up these issues? I think it probably would
Speaker 1: like to avoid getting involved in those issues to the
Speaker 1: extent possible, but you know, it can't always control the
Speaker 1: circumstances that are bringing the cases to the court. And
Speaker 1: that's the true with respect to a number of these
Speaker 1: issues in terms of how they come up and in
Speaker 1: what context. And here I think, you know, it'll matter
Speaker 1: a lot who is asking the court to get involved,
Speaker 1: the nature of the underlying ruling. I think it's going
Speaker 1: to be harder for the Court to turn down or
Speaker 1: crest by the listener general himself, if we're to come
Speaker 1: to that. But you know, I think it remains to
Speaker 1: be seen how the lower courts sort these issues out
Speaker 1: and whether or not the Supreme Court's intervention is going
Speaker 1: to be necessary or possible this year. I often count
Speaker 1: how many seconds it takes before a lawyer is interrupted
Speaker 1: in oral argument with a question. And now the court
Speaker 1: says it's going to give lawyers two minutes uninterrupted. It
Speaker 1: says the justices generally will not question lawyers for the
Speaker 1: first two minutes of their arguments. So does this give
Speaker 1: you comfort when you're going to be doing oral arguments. Well,
Speaker 1: I think it's one of the biggest developments and Supreme
Speaker 1: Court law arguments that we've we've seen in a long time,
Speaker 1: and I think practitioners are excited to see how it
Speaker 1: plays out. You know, as a lawyer, it tells you
Speaker 1: upfront about how much time you're going to have and
Speaker 1: gives you an opportunity to try to frame the issues
Speaker 1: before the court. And I think all that is terrific,
Speaker 1: But I think, you know, at the same time, the
Speaker 1: real argument doesn't start until the questions start flying. And
Speaker 1: I think, you know, that's where the rubber hits the road,
Speaker 1: and that's that's not going to change at all under
Speaker 1: the new rule. As things play forward. Has it become
Speaker 1: more of a hot bench in recent years, I think,
Speaker 1: without doubt, I think it is the most active court
Speaker 1: in history in terms of the number of questions during
Speaker 1: the law argument. It's not surprising to have seventy questions
Speaker 1: and interruptions during the course of a thirty minute oral argument.
Speaker 1: And the justices are all eager to have their own
Speaker 1: questions asked, and so are jumping in more more quickly
Speaker 1: during the course of oral argument. And so, you know,
Speaker 1: I think this this two minute rule, you know, hits
Speaker 1: a bit of the pause, a pause button at the
Speaker 1: beginning of oral arguments. But the meat of the oral
Speaker 1: argument is still going to consist of the back and forth,
Speaker 1: which is extremely important in getting to the bottom of
Speaker 1: these diffical issues. Thanks so much, Greg. That's Gregory gar
Speaker 1: former U slicitor General and a partner at Latham and Watkins.
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can
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Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.
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