WEBVTT - What Cases Are Missing From Upcoming SCOTUS Docket?

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<v Speaker 1>This is Bloomberg Law with June Grasso from Bloomberg Radio.

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<v Speaker 1>Oh yea, oh yea, oh yea. All persons having business

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<v Speaker 1>before the Honorable the Supreme Court of the United States

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<v Speaker 1>are admonished to give their attention, for the court is

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<v Speaker 1>now sitting. God save the United States and this honorable Court.

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<v Speaker 1>The gavel will fall again on a new Supreme Court

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<v Speaker 1>term on the first Monday in October. The past term

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<v Speaker 1>was a momentous one for the Court, with major decisions

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<v Speaker 1>on lgbt Q rights, presidential powers, abortion rights, religious liberties,

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<v Speaker 1>data and federal agencies, and several controversial cases are already

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<v Speaker 1>on the docket for the term, cases involving Obamacare, religious liberties,

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<v Speaker 1>intellectual property, and challenges to the FTC Fannie Mae and

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<v Speaker 1>Freddie mac. Perhaps justice revealing is what's not on the docket.

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<v Speaker 1>There are no cases on the Second Amendment or abortion rights.

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<v Speaker 1>Joining me to take a look ahead is Bloomberg News

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<v Speaker 1>Supreme Court reporter Greg Store. The Court has posted the

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<v Speaker 1>cases it's going here in October, and some of them

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<v Speaker 1>look familiar, because there should we call them leftovers from

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<v Speaker 1>last term. What stands out to you in those cases? Yeah,

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<v Speaker 1>that's a good way of describing it. These are all

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<v Speaker 1>the cases that were scheduled for argument last term but

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<v Speaker 1>didn't actually get argued because of the coronavirus outbreak, and

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<v Speaker 1>said they got kicked over to this term. Probably the

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<v Speaker 1>biggest one, certainly the biggest one from a business standpoint,

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<v Speaker 1>is this copyright fight between Google and Oracle. Oracle says

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<v Speaker 1>that Google has systematically infringed on its copyrights in creating

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<v Speaker 1>the Android system for mobile phones. Oracle says it is

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<v Speaker 1>owed something like nine billion with a B dollars from Google.

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<v Speaker 1>Google says it has done nothing wrong. That's a real

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<v Speaker 1>fight over what the rules are going to be in

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<v Speaker 1>the tech industry going forward. Does this mean that a

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<v Speaker 1>case that promise is to be controversial on a topic

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<v Speaker 1>the Court is quite familiar with by now, the Obamacare

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<v Speaker 1>case will not be heard until November at the earliest. Yeah,

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<v Speaker 1>that's right. And the November sitting of the Court starts

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<v Speaker 1>the day before election day, so there's a very good

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<v Speaker 1>chance it won't happen until after election day. This is

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<v Speaker 1>the case where Republican leeds states sued trying to overturn

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<v Speaker 1>the entirety of Obamacare. The argument is that back when

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<v Speaker 1>the Supreme Court upheld it in twelve, they upheld the

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<v Speaker 1>individual mandate, which is the thing that says people have

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<v Speaker 1>to acquire insurance. The court upheld that as a tax

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<v Speaker 1>because Congress attached tax penalty to not have an insurance. Well,

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<v Speaker 1>Republican led Congress and the Trump administration eliminated that tax penalty,

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<v Speaker 1>and so the argument is now that the individual mandate

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<v Speaker 1>is unconstitutional, and the Republican led States, with the support

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<v Speaker 1>of the Trump administration, are also arguing that the entire

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<v Speaker 1>law have to be thrown out. The court has had

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<v Speaker 1>Obamacare before it twice before, so why take up Obamacare

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<v Speaker 1>for a third time. They're taking it up because there

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<v Speaker 1>is now uncertainty about the state of the law. It

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<v Speaker 1>was actually the Democratic led states or defending the law

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<v Speaker 1>who urged the court to take it up. Federal District

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<v Speaker 1>judge said the law was unconstitutional, and Federal Appeals Court said,

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<v Speaker 1>we're not deciding whether the whole thing is unconstitutional, but

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<v Speaker 1>at least this individual mandate is now unconstitutional, and maybe

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<v Speaker 1>the rest of it. So there is great uncertainty about

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<v Speaker 1>the state of it right now. And it seems as

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<v Speaker 1>though when you have states on both sides and an

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<v Speaker 1>issue that is clearly so important to get resolved. The

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<v Speaker 1>Supreme Court felt, life, we just need to make a decision.

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<v Speaker 1>If Trump does not win the election in November, and

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<v Speaker 1>if the case hasn't been heard by that time, is

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<v Speaker 1>there a possibility that it will go away. There's certainly

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<v Speaker 1>a possibility it will change very significantly. And yet I

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<v Speaker 1>could see a possibility it would go away. The Trump

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<v Speaker 1>administration is involved in the case, but they didn't bring

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<v Speaker 1>the lawsuits. There would still be a lawsuit filed by

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<v Speaker 1>these Republican led states trying to invalidate the law. But

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<v Speaker 1>the premise of the suit is that there is no

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<v Speaker 1>longer a tax penalty attached to the requirements that you

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<v Speaker 1>acquire insurance. One could imagine a world in which a

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<v Speaker 1>Democratic controlled Congress and a Democratic president decide we're going

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<v Speaker 1>to reinstate the tax penalty, maybe even just a nominal

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<v Speaker 1>tax penalty, and suddenly that legal argument goes away. Now,

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<v Speaker 1>whether that would make the case technically moot in the

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<v Speaker 1>Supreme Court would feel like they needed to drop it,

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<v Speaker 1>I'm not, but certainly there's a possibility that the complexion

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<v Speaker 1>of the case would change very, very dramatically. Religious liberties

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<v Speaker 1>were enhanced in three cases at the Court this term,

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<v Speaker 1>and a case next term which promises to be controversial,

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<v Speaker 1>involves religious liberties, gay rights, and foster care. This is

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<v Speaker 1>a very big religious liberties case, in part because it's

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<v Speaker 1>asking the Court to overturn important precedent from thirty years ago.

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<v Speaker 1>The case is about a Catholic social services agency in

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<v Speaker 1>Philadelphia that helps place foster kits. They screen out perspective

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<v Speaker 1>foster parents, and this organization says, we don't work with

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<v Speaker 1>same sex couples. We have a religious objection to that,

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<v Speaker 1>and the city of said, okay, then you can't take

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<v Speaker 1>part in this program. And the question is whether that

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<v Speaker 1>violates the Constitution In the free exercise cause of the

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<v Speaker 1>First Amendment. There is a decision from written by Justice

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<v Speaker 1>Scalia that is being challenged, and it's a decision that said,

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<v Speaker 1>if a state has a neutral, generally applicable law, and

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<v Speaker 1>if it happens to have an impact on a religious practice,

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<v Speaker 1>that is not a violation of the Constitution. In this

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<v Speaker 1>case takes direct game that and may significantly expand constitutional

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<v Speaker 1>religious liberties. Me next, why no case is on the

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<v Speaker 1>Second Amendment or abortion issues. This is Bloomberg. The first

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<v Speaker 1>case we all argue today is Case nineteen seven fifteen

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<v Speaker 1>Donald Trump versus Major's USA. There may not be a

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<v Speaker 1>case that draws as much attention as the Trump subpoena

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<v Speaker 1>cases in the upcoming Supreme Court term, but there will

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<v Speaker 1>certainly be defining cases and perhaps even decisions that overturned precedent.

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<v Speaker 1>I've been talking to Bloomberg Supreme Court reporter Greg Store

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<v Speaker 1>about the new term, and Greg, we were discussing one

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<v Speaker 1>of those cases that challenges precedent, a case where religious

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<v Speaker 1>rights and gay rights seem to collide. And in all

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<v Speaker 1>three cases last term involving religion, the Court expanded religious

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<v Speaker 1>liberties with either seven to two or five to four votes. Yes,

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<v Speaker 1>they certainly have, and not all of those cases were

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<v Speaker 1>under the guise of the Constitution. There's also a federal

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<v Speaker 1>law known as a Religious Freedom Restoration Act. Some of

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<v Speaker 1>the cases have involved that. The case they got a

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<v Speaker 1>lot of attention this last term involving the Obamacare contraceptive

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<v Speaker 1>requirement that was actually primarily a case of about federal

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<v Speaker 1>administrative law and whether the Trump administration had checked all

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<v Speaker 1>the boxes in terms of giving a broad religious exemption

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<v Speaker 1>to employers and universities from that requirement. This will be

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<v Speaker 1>certainly one of the biggest case that directly deals with

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<v Speaker 1>the constitutional free exercise clause. So now is this Facebook's

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<v Speaker 1>first appearance at the Court in a case involving text

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<v Speaker 1>messages and robocalls? It is remember this last term, they

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<v Speaker 1>had a case that challenged the federal ban on robocalls

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<v Speaker 1>to mobile phones, and the Supreme Court upheld that law,

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<v Speaker 1>and the Facebook case was sort of waiting in the

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<v Speaker 1>wings for the Court to resolve that. And what it

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<v Speaker 1>sort of gets into is not the constitutional questions of

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<v Speaker 1>the earlier case, but kind of the nuts in both

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<v Speaker 1>questions of what really is a robot call the law.

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<v Speaker 1>This is a case about somebody who sued Facebook because

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<v Speaker 1>he got text messages he didn't want, and the question

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<v Speaker 1>is whether those text messages are covered under the statute,

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<v Speaker 1>whether therefore he can press a lassity against Facebook, essentially

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<v Speaker 1>a class action suit that would involve big money. A

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<v Speaker 1>little more of a granular case, but certainly something that

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<v Speaker 1>is of great interest to a lot of people in

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<v Speaker 1>the tech community. Can we tell where this is going

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<v Speaker 1>from the robot call case this term, where just about

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<v Speaker 1>everyone agreed that nobody likes robot calls. I'm not sure

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<v Speaker 1>we can you know robo calls for the Supreme Court justices,

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<v Speaker 1>they all understand what those are. This case involves a

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<v Speaker 1>little more of a question about the mechanism for sending

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<v Speaker 1>these text messages. It is, as I said, a question

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<v Speaker 1>of interpreting this federal statute and not so much the Constitution.

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<v Speaker 1>So I'm not ready to say that I have any

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<v Speaker 1>strong views on how this case is likely to come

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<v Speaker 1>out of based on what we saw in this last term. Now,

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<v Speaker 1>another case that seems a lot like a case this

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<v Speaker 1>term on the SEC involves the FTC. Right. In the

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<v Speaker 1>last term, we had a case involving the Securities and

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<v Speaker 1>Exchange Commissions so called disgorgement power, that is, its ability

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<v Speaker 1>to go to court and say, you, the wrongdoer, somebody

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<v Speaker 1>who violated securities wrong laws have to give back the

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<v Speaker 1>money you took. And the Supreme Court trim that power

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<v Speaker 1>from the SEC essentially said, you really have to make

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<v Speaker 1>sure you're sending the money back to investors who were defrauded,

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<v Speaker 1>and you have to focus on the net proceeds that

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<v Speaker 1>the wrongdoer got, but left the disgorgement power otherwise intact.

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<v Speaker 1>And so this is to some degree the same case

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<v Speaker 1>involving the Federal Trade Commission, which also tries to go

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<v Speaker 1>to court to get money from wrongdoers. The difference is

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<v Speaker 1>that it's the completely different statutes. It's a federal statute

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<v Speaker 1>that governs the FEC that says they have the power

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<v Speaker 1>to go to court get an injunction. And the question

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<v Speaker 1>is essentially whether it's an injunction includes an injunction that

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<v Speaker 1>says you the wrong door have to pay money back.

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<v Speaker 1>Most federal pills courts pep said yes, the FDC has

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<v Speaker 1>has that power. There is one that recently said no,

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<v Speaker 1>it doesn't end that is very likely the Resistreme Court

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<v Speaker 1>decided to get involved. So then we can't draw any

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<v Speaker 1>conclusions from the case involving the SEC. We might be

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<v Speaker 1>able to get a general leaning that the Court is

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<v Speaker 1>not looking to do something radical in this area, though

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<v Speaker 1>it is a question of statutory interpretation. Both cases are

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<v Speaker 1>also at least to some degree about the traditional powers

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<v Speaker 1>of courts. So I will at least go into this

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<v Speaker 1>argument with the idea that the Court might not want

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<v Speaker 1>to radically cut back on what has been a long established,

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<v Speaker 1>a long understood power of the Federal Trade Commission. And

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<v Speaker 1>there's a case involving a challenge to another federal agency,

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<v Speaker 1>the Federal Housing Finance Agency and its regulation of Fannie

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<v Speaker 1>Mae and Freddie Mack and the more than three billion

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<v Speaker 1>dollars in dividends that have gone into the U. S. Treasury.

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<v Speaker 1>This has echoes of two cases from last term. Yeah know,

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<v Speaker 1>I think about it. Half the cases this term are

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<v Speaker 1>follow ups from from cases last term. Uh. This one

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<v Speaker 1>is somewhat connected to the fight over the Consumer Financial

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<v Speaker 1>Protection Bureau from the last term. The main issue in

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<v Speaker 1>this case, however, is something that is somewhat different. I'll

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<v Speaker 1>try to explain it. Under federal law, Fannie Mae and

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<v Speaker 1>Freddie Mack give the vast majority of their profits to

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<v Speaker 1>the treasury. They don't go to the shareholders. And this

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<v Speaker 1>all stems from the bail out of Fannie Main and

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<v Speaker 1>Freddie Mac after the financial crisis. And investors are challenging

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<v Speaker 1>that so called profit sweep, and they have a couple

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<v Speaker 1>of different arguments for why they think that profit sweep

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<v Speaker 1>is illegal. And what has seemed to be the main

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<v Speaker 1>event is the f a f A, the agency that

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<v Speaker 1>overseas Fanny and Freddy, arguing that under federal law, we

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<v Speaker 1>are the conservator of Fannie and Freddie, and under federal law,

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<v Speaker 1>you can't sue over something involving our conservatorship of those

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<v Speaker 1>two entities. There's also a second claim in the case

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<v Speaker 1>that is similar to the one in Consumer Financial Protection

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<v Speaker 1>Bureau case. The investors argue that the f h f

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<v Speaker 1>A is unconstitutionally structured because the director is too independent

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<v Speaker 1>from the president can't be fired by the president for

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<v Speaker 1>any reason. And they say that because of that unconstitutional structure,

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<v Speaker 1>that this profit suite must be thrown out. Back in

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<v Speaker 1>this last term, the Court entertained a similar claim about

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<v Speaker 1>the CFPB and said it's unconstitutionally structured, but the only

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<v Speaker 1>thing we have to do to fix it is to

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<v Speaker 1>say the president can fire the director for any reason.

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<v Speaker 1>So it would be a big leap for the Court

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<v Speaker 1>to say that the remedy for any unconstitutionality about the

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<v Speaker 1>f h f A is that we would throw out

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<v Speaker 1>this extremely important provision that lets them collect the profits

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<v Speaker 1>of Fannie and Freddie. Greg last term, there was a

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<v Speaker 1>gun case, a Second Amendment case that turned out to

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<v Speaker 1>be moot, and Justice Brett Kavanaugh mentioned other cases coming

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<v Speaker 1>down the pike. Have they taken up any gun cases.

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<v Speaker 1>They haven't, And it's a bit of a head scratcher,

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<v Speaker 1>to be honest. Justice Kavanaugh did indicate he's eager to

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<v Speaker 1>take up a Second Amendment case. Other conservative justices have

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<v Speaker 1>as well, including Justice Thomas, who has been very outspoken.

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<v Speaker 1>But the Court had a Second Amendment case of this

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<v Speaker 1>current term involving gun transportation restrictions in New York City.

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<v Speaker 1>But then the city changed its law and the Court

0:13:24.080 --> 0:13:27.400
<v Speaker 1>dismissed that case. And after that happened, there were all

0:13:27.440 --> 0:13:29.480
<v Speaker 1>these other cases that have been waiting in the wings,

0:13:29.480 --> 0:13:31.800
<v Speaker 1>waiting for the Court to resolve the New York case.

0:13:31.920 --> 0:13:35.280
<v Speaker 1>And they included an issue that federal pills courts are

0:13:35.400 --> 0:13:39.000
<v Speaker 1>divided on, which is is there a constitutional right to

0:13:39.240 --> 0:13:41.680
<v Speaker 1>carry a weapon in public or is it only a

0:13:41.800 --> 0:13:45.000
<v Speaker 1>right that applies in your home for self defense purposes.

0:13:45.080 --> 0:13:47.240
<v Speaker 1>Lower courts are split on that. They had a couple

0:13:47.280 --> 0:13:49.319
<v Speaker 1>of cases that look like really good candidates for them

0:13:49.360 --> 0:13:52.040
<v Speaker 1>to take up, and they chose not to. And I

0:13:52.080 --> 0:13:54.720
<v Speaker 1>think the clearest thing that one can say is there

0:13:54.840 --> 0:13:57.280
<v Speaker 1>is not a huge appetite on the Court at this

0:13:57.400 --> 0:14:00.880
<v Speaker 1>very moment for expanding the second amend a mint expanding

0:14:00.920 --> 0:14:03.000
<v Speaker 1>the rights that are covered by it. And for the

0:14:03.080 --> 0:14:05.760
<v Speaker 1>time being, no, we do not have a gun rights

0:14:05.760 --> 0:14:07.720
<v Speaker 1>case on the agenda for next term, and it's not

0:14:07.760 --> 0:14:09.960
<v Speaker 1>clear that we're going to. This term. There was an

0:14:09.960 --> 0:14:12.960
<v Speaker 1>abortion case, and of course there was a lot of

0:14:13.520 --> 0:14:18.480
<v Speaker 1>controversy surrounding it because of the issue itself and also

0:14:18.600 --> 0:14:21.840
<v Speaker 1>because of the newly conservative court, and people were wondering

0:14:21.920 --> 0:14:25.040
<v Speaker 1>whether they would start to cut back on abortion rights.

0:14:25.080 --> 0:14:29.360
<v Speaker 1>Are there any abortion rights cases on the docket coming up?

0:14:29.720 --> 0:14:31.680
<v Speaker 1>There are not be much like with gun rights, The

0:14:31.720 --> 0:14:34.120
<v Speaker 1>Court at the end of its term said it wasn't

0:14:34.160 --> 0:14:36.840
<v Speaker 1>going to hear several cases, so it's passed on the

0:14:36.920 --> 0:14:39.320
<v Speaker 1>chance now in the case of abortion, that may be

0:14:39.400 --> 0:14:42.640
<v Speaker 1>because it wants the lower courts to digest the ruling

0:14:42.640 --> 0:14:45.280
<v Speaker 1>that it issued this term. That was one where Chief

0:14:45.360 --> 0:14:48.720
<v Speaker 1>Justice John Roberts has the keyboat to strike down this

0:14:48.880 --> 0:14:52.000
<v Speaker 1>Louisian law that required doctors an abortion clinics to get

0:14:52.120 --> 0:14:55.040
<v Speaker 1>privileges at a local hospital. The chiefs pointed to the

0:14:55.120 --> 0:14:57.720
<v Speaker 1>decision four years earlier where the Court had struck down

0:14:57.800 --> 0:15:01.120
<v Speaker 1>an identical Texas law, and rob said, I disagreed with

0:15:01.160 --> 0:15:03.800
<v Speaker 1>that decision. But it's the law of the land, and

0:15:03.840 --> 0:15:07.080
<v Speaker 1>the Louisiana law is is identical. So I'm going to

0:15:07.480 --> 0:15:10.280
<v Speaker 1>both to strike that down as well. It's possible that

0:15:10.360 --> 0:15:12.560
<v Speaker 1>that the Chief Justice, because of the language in his opinion,

0:15:12.840 --> 0:15:16.720
<v Speaker 1>would be willing to uphold a lot of other abortion restrictions.

0:15:16.760 --> 0:15:18.440
<v Speaker 1>But at the end of the term, when the Court

0:15:18.520 --> 0:15:20.840
<v Speaker 1>decided we're not going to take these other cases, that

0:15:20.920 --> 0:15:22.560
<v Speaker 1>did sort of send a little bit of a message

0:15:22.600 --> 0:15:25.760
<v Speaker 1>that maybe he is not especially eager to take up

0:15:25.800 --> 0:15:29.080
<v Speaker 1>another abortion case every time. Soon, finally, the Court is

0:15:29.120 --> 0:15:33.080
<v Speaker 1>going to consider new curbs on human rights lawsuits in

0:15:33.080 --> 0:15:36.480
<v Speaker 1>a case involving child slavery on coco farms on the

0:15:36.520 --> 0:15:40.000
<v Speaker 1>Ivory Coast. Yeah, this is a type of issue the

0:15:40.000 --> 0:15:42.200
<v Speaker 1>Court has has dealt with before. The facts of this

0:15:42.280 --> 0:15:45.600
<v Speaker 1>case are that ness Lee's US unit and Cargill are

0:15:45.640 --> 0:15:49.440
<v Speaker 1>both fighting lawsuits that accuse them of complicity and child

0:15:49.560 --> 0:15:52.440
<v Speaker 1>labor in the Ivory Coast and producing cocoa. Both companies

0:15:52.560 --> 0:15:56.120
<v Speaker 1>deny the allegations. But the issue before the Court has

0:15:56.160 --> 0:15:58.080
<v Speaker 1>to do with this law known as the Alien Torch

0:15:58.160 --> 0:16:01.600
<v Speaker 1>statutes that they've had several old times before that has

0:16:01.680 --> 0:16:06.200
<v Speaker 1>been used to press human rights lawsuits over international atrocities,

0:16:06.240 --> 0:16:09.120
<v Speaker 1>and the Supreme Court, in a series of decisions, have

0:16:09.320 --> 0:16:13.000
<v Speaker 1>scaled that law back so that it's used less and less.

0:16:13.040 --> 0:16:16.240
<v Speaker 1>And one of the questions that was left open from

0:16:16.240 --> 0:16:19.720
<v Speaker 1>the previous decisions is whether it can be applied against

0:16:19.760 --> 0:16:23.600
<v Speaker 1>a US corporation as opposed to a foreign corporation that

0:16:23.800 --> 0:16:28.120
<v Speaker 1>was involved in these overseas atrocities. The Court seemingly is

0:16:28.120 --> 0:16:30.520
<v Speaker 1>going to answer that question in this case. There are

0:16:30.600 --> 0:16:33.640
<v Speaker 1>also arguments from the companies that even if the law

0:16:33.680 --> 0:16:37.760
<v Speaker 1>could be applied to domestic companies, our domestic units were

0:16:37.760 --> 0:16:41.280
<v Speaker 1>not involved enough to let the lawsuits go forward. It

0:16:41.400 --> 0:16:43.760
<v Speaker 1>is an area of law where we've seen the conservatives

0:16:43.760 --> 0:16:46.800
<v Speaker 1>on the Court slowly but surely chipping away at the

0:16:46.840 --> 0:16:49.240
<v Speaker 1>alien towards statutes so that it cannot be used because

0:16:49.240 --> 0:16:52.200
<v Speaker 1>these sorts of lawsuits. Thanks Graig, it sounds like an

0:16:52.240 --> 0:16:55.880
<v Speaker 1>exciting term to come. That's Bloomberg News Supreme Court Reporter

0:16:55.960 --> 0:16:58.320
<v Speaker 1>Greg Store and that's it for the sedition of the

0:16:58.320 --> 0:17:01.840
<v Speaker 1>Bloomberg Law Show. I'm to Grosso. Thanks so much for listening,

0:17:02.080 --> 0:17:04.440
<v Speaker 1>and remember to tune into The Bloomberg Law Show every

0:17:04.440 --> 0:17:07.520
<v Speaker 1>weeknight at ten pm Eastern right here on Bloomberg Radio,

0:17:09.880 --> 0:17:09.920
<v Speaker 1>h