WEBVTT - Former U.S. Solicitor General Garre on New Term

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. It's the beginning

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<v Speaker 1>of a new Supreme Court term, and one that will

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<v Speaker 1>run the gamut of polarizing issues gay and transgender rights, abortion,

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<v Speaker 1>gun control, and DACA, which decisions that will affect millions

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<v Speaker 1>of Americans coming during the run up to next year's election.

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<v Speaker 1>Joining me as former United States Solicitor General Gregory gar

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<v Speaker 1>a partner at Latham and Watkins and global chair of

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<v Speaker 1>the firm Supreme Court and Appellate Practice. The Court is

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<v Speaker 1>obviously going to consider a lot of controversial issues. Is

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<v Speaker 1>there one that stands out in your mind? I think

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<v Speaker 1>what's unique about this term, at least compared to the

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<v Speaker 1>last couple of years, is just how many hot button

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<v Speaker 1>issues it's put on its played. I mean, it seems

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<v Speaker 1>as though it tried to a low the last couple

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<v Speaker 1>of terms to the extent possible, and now it's got

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<v Speaker 1>a whole menu of issues ranging from abortion, guns, religion

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<v Speaker 1>dot gay rights, and so it's it's hard to single

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<v Speaker 1>one out. I think what's unique is just the bevy

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<v Speaker 1>of controversial issues before it. Let's start then with gay rights,

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<v Speaker 1>which is going to be heard tomorrow. Justice Kenny was

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<v Speaker 1>the pivotal vote in all the Court's gay rights decisions.

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<v Speaker 1>So does this put the spotlight on Justice Brett Kavanaugh.

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<v Speaker 1>I think, you know, certainly it's significant, and that will

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<v Speaker 1>be the first time that we hear from Justice is

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<v Speaker 1>Gorsoch and Kavanaugh in this area. I mean, particularly given

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<v Speaker 1>Justice Kennedy's retirement. I do think that these cases are

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<v Speaker 1>different than the gay marriage cases and the like that

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<v Speaker 1>were decided several years ago, and that these are really

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<v Speaker 1>going to be focused on the text of the statute.

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<v Speaker 1>In some sense, are statutory interpretation cases, albeit ones that

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<v Speaker 1>have a obviously crucial impact in a particular segment. And

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<v Speaker 1>do you have an opinion as to which side has

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<v Speaker 1>a better case of statutory interpretation. I don't, at least

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<v Speaker 1>not one here today. I think what I would say

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<v Speaker 1>what's really interesting about this case though, is that you know,

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<v Speaker 1>both sides have approached it from an interpretation perspective and

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<v Speaker 1>have relied on various aspects of Justice Scalia's methodology and

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<v Speaker 1>are claiming to, you know, take the throne and statutory interpretation.

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<v Speaker 1>So I think it's a testament to how statutory interpretation

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<v Speaker 1>has changed over the last couple of decades. And it's

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<v Speaker 1>interesting to see both sides coming in with a Scalia

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<v Speaker 1>type approach to the issue. As if the Court didn't

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<v Speaker 1>have enough controversial cases on its docket last Friday, they

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<v Speaker 1>added an abortion case, right, and this is this is

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<v Speaker 1>one that, interestingly that the Court had issued a stay

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<v Speaker 1>in from the lower court's decisions stay in the effect

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<v Speaker 1>of the underlying Louisiana law, which which involves admittance privileges

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<v Speaker 1>to local hospitals and is sort of a follow onto

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<v Speaker 1>the Whole Women's Health case that the Court decided by

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<v Speaker 1>a five three vote a few years ago with Justice

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<v Speaker 1>Kennedy still in the court. So Chief Justice Roberts dissented

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<v Speaker 1>in the Texas case, does that put him in the

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<v Speaker 1>position here of overturning precedent? Well, I mean, I think

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<v Speaker 1>it's a different case today than it was at the

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<v Speaker 1>time of Whole Women's Health and that we now have

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<v Speaker 1>the Whole Women's Health decision, which is entitled to full

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<v Speaker 1>story the scisive effect, So I think, you know, the

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<v Speaker 1>Chief Justice will have to view the case through that lens.

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<v Speaker 1>And obviously the state is arguing that the Texas law

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<v Speaker 1>is different in some respects, and the challenges are arguing

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<v Speaker 1>that it's just like the Texas law, if not worse

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<v Speaker 1>in some respects. And that's the sort of thing that

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<v Speaker 1>the justices are going to have to work through in

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<v Speaker 1>deciding the applicability of the whole Women's health decision. Of course,

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<v Speaker 1>abortion is an area that draws more protests and more

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<v Speaker 1>concerned than a lot of other areas, certainly for women.

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<v Speaker 1>Are you of the opinion, as some legal scholars are,

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<v Speaker 1>that the Court is not going to make any wholesale changes,

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<v Speaker 1>that they're going to sort of go inch by inch

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<v Speaker 1>if they're going to change abortion rights. Well, I think

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<v Speaker 1>you know, this case is very much narrowly focused on

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<v Speaker 1>the same issue that was decided and whole women's health

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<v Speaker 1>in terms of the particular type of state law requiring

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<v Speaker 1>doctors to have admittance privileges at local hospitals. So it's

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<v Speaker 1>you know, it's hard to see the court going broader

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<v Speaker 1>than that in terms of the specific issues presented, and

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<v Speaker 1>certainly no side has suggested that this case involves a

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<v Speaker 1>challenge to Row versus Wade itself. So I think in

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<v Speaker 1>terms of the scope of this decision, all eyes will

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<v Speaker 1>be upon it, and obviously their first sign indication from

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<v Speaker 1>the current court as to where they are in these issues.

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<v Speaker 1>But I think there's only so far the Court could

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<v Speaker 1>go here. When the Chief makes speeches or does q

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<v Speaker 1>and as he often goes out of his way to

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<v Speaker 1>emphasize that the Court is not political. We did this

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<v Speaker 1>last month in a speech in New York, will he

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<v Speaker 1>be able to maintain that with the kinds of cases

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<v Speaker 1>that the Court is going to be deciding this term,

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<v Speaker 1>the kind of issues that divide the country. Oh sure,

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<v Speaker 1>And I think you know, that's a real challenge for

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<v Speaker 1>the Court. I think all the justices are sensitive to that,

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<v Speaker 1>and I think they al would agree with the Chief

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<v Speaker 1>Justice that they don't see themselves as coming from one

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<v Speaker 1>party or the other, but as judges involved in a

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<v Speaker 1>common endeavor. And I think, you know, I wouldn't be

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<v Speaker 1>surprised if we see some unusual lineup among these cases.

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<v Speaker 1>But you know, as to how it all sorts out,

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<v Speaker 1>and whether or not there's a consistent five for majority

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<v Speaker 1>in these cases. You know, that remains to be seen,

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<v Speaker 1>but it's it's certainly something that the court will be

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<v Speaker 1>sensitive to. Let's turn to DHAKA. President Trump's attempt to

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<v Speaker 1>end President Obama's Deferred Action for Childhood Arrivals program. Does

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<v Speaker 1>even illustrations start with an advantage here because it has

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<v Speaker 1>many ways it can win the case, many different arguments.

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<v Speaker 1>I think it does generally speaking. You know, I think certainly,

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<v Speaker 1>as the Court indicated a few terms ago involving the

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<v Speaker 1>travel band case, you know, where the president is acting

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<v Speaker 1>in the field of immigration, he starts with a lot

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<v Speaker 1>of inherent authority, which which is helpful here. You know.

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<v Speaker 1>On the other hand, you know, this case ultimately involves

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<v Speaker 1>an A p A challenge and you know, as we

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<v Speaker 1>saw last term in the Census case, the president you

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<v Speaker 1>can't lose those challenges. So you know, from the challenges perspective,

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<v Speaker 1>I'm sure they'll be trying to take a page out

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<v Speaker 1>of the playbook of that case. You brought up the

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<v Speaker 1>census case, and and that's the case where the Chief

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<v Speaker 1>didn't believe the government's explanation and was the fifth vote

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<v Speaker 1>against the government. Could that happen here. Well, it's certainly possible.

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<v Speaker 1>I mean, I think, you know, you would look at

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<v Speaker 1>the Chief is one of the justices you'd want to

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<v Speaker 1>focus on during oral argument. But you know, I think

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<v Speaker 1>he would be looking at the justifications that the administration

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<v Speaker 1>gave here, you know, focusing on them in particular or

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<v Speaker 1>not necessarily feeling bound by anything in the census case

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<v Speaker 1>or the particular justifications that issue there. So now, the

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<v Speaker 1>Court hasn't heard a Second Amendment case in about a decade.

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<v Speaker 1>It had an opportunity to drop the case over New

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<v Speaker 1>York City strict limits on where licensed hand duds could

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<v Speaker 1>be taken because New York loosen the restrictions, but it's

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<v Speaker 1>going to keep it on the docket, another hot button

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<v Speaker 1>issue during election time. I mean, that's definitely true. It's

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<v Speaker 1>another big issue on the plate. I mean, the Court

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<v Speaker 1>has not gotten back involved in the area of the

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<v Speaker 1>Second Amendment for almost a decade, and a number of

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<v Speaker 1>issues have been piling up in the lower courts, and

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<v Speaker 1>I think it's been inevitable that sooner or later the

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<v Speaker 1>Court was going to have to get back involved here

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<v Speaker 1>to provide some guidance. And you know, here it is

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<v Speaker 1>in the New York case that they decided to do

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<v Speaker 1>that now that New York had filed US gestion of

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<v Speaker 1>muteness on the ground that they had changed the law issue.

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<v Speaker 1>The Court ultimately declined to cancel the argument on that basis,

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<v Speaker 1>but it did something that it not infrequently does, which

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<v Speaker 1>is to refer the motion and the question of muteness

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<v Speaker 1>to the oral argument itself and directed the parties to

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<v Speaker 1>be prepared to address that issue and oral argument. So

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<v Speaker 1>it's still possible that the case would go away on

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<v Speaker 1>that ground. It just means we're going to have an

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<v Speaker 1>argument in November to flesh things out a bit more. Well.

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<v Speaker 1>We might also be having other arguments. The Democrats demand

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<v Speaker 1>for documents and testimony from the President of the White

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<v Speaker 1>House are winding their way through the courts. We saw

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<v Speaker 1>there was a decision in New York and then put

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<v Speaker 1>on hold by the Second Circuit today, So impeachment is

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<v Speaker 1>on the horizon as well. Can the Court avoid getting

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<v Speaker 1>involved in these issues or is it going to have

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<v Speaker 1>to take up these issues? I think it probably would

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<v Speaker 1>like to avoid getting involved in those issues to the

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<v Speaker 1>extent possible, but you know, it can't always control the

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<v Speaker 1>circumstances that are bringing the cases to the court. And

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<v Speaker 1>that's the true with respect to a number of these

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<v Speaker 1>issues in terms of how they come up and in

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<v Speaker 1>what context. And here I think, you know, it'll matter

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<v Speaker 1>a lot who is asking the court to get involved,

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<v Speaker 1>the nature of the underlying ruling. I think it's going

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<v Speaker 1>to be harder for the Court to turn down or

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<v Speaker 1>crest by the listener general himself, if we're to come

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<v Speaker 1>to that. But you know, I think it remains to

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<v Speaker 1>be seen how the lower courts sort these issues out

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<v Speaker 1>and whether or not the Supreme Court's intervention is going

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<v Speaker 1>to be necessary or possible this year. I often count

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<v Speaker 1>how many seconds it takes before a lawyer is interrupted

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<v Speaker 1>in oral argument with a question. And now the court

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<v Speaker 1>says it's going to give lawyers two minutes uninterrupted. It

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<v Speaker 1>says the justices generally will not question lawyers for the

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<v Speaker 1>first two minutes of their arguments. So does this give

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<v Speaker 1>you comfort when you're going to be doing oral arguments. Well,

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<v Speaker 1>I think it's one of the biggest developments and Supreme

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<v Speaker 1>Court law arguments that we've we've seen in a long time,

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<v Speaker 1>and I think practitioners are excited to see how it

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<v Speaker 1>plays out. You know, as a lawyer, it tells you

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<v Speaker 1>upfront about how much time you're going to have and

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<v Speaker 1>gives you an opportunity to try to frame the issues

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<v Speaker 1>before the court. And I think all that is terrific,

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<v Speaker 1>But I think, you know, at the same time, the

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<v Speaker 1>real argument doesn't start until the questions start flying. And

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<v Speaker 1>I think, you know, that's where the rubber hits the road,

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<v Speaker 1>and that's that's not going to change at all under

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<v Speaker 1>the new rule. As things play forward. Has it become

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<v Speaker 1>more of a hot bench in recent years, I think,

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<v Speaker 1>without doubt, I think it is the most active court

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<v Speaker 1>in history in terms of the number of questions during

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<v Speaker 1>the law argument. It's not surprising to have seventy questions

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<v Speaker 1>and interruptions during the course of a thirty minute oral argument.

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<v Speaker 1>And the justices are all eager to have their own

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<v Speaker 1>questions asked, and so are jumping in more more quickly

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<v Speaker 1>during the course of oral argument. And so, you know,

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<v Speaker 1>I think this this two minute rule, you know, hits

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<v Speaker 1>a bit of the pause, a pause button at the

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<v Speaker 1>beginning of oral arguments. But the meat of the oral

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<v Speaker 1>argument is still going to consist of the back and forth,

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<v Speaker 1>which is extremely important in getting to the bottom of

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<v Speaker 1>these diffical issues. Thanks so much, Greg. That's Gregory gar

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<v Speaker 1>former U slicitor General and a partner at Latham and Watkins.

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<v Speaker 1>Thanks for listening to the Bloomberg Law Podcast. You can

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<v Speaker 1>subscribe and listen to the show on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on bloomberg dot com slash podcast. I'm June Brosso.

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<v Speaker 1>This is Bloomberg