Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: Oh yea, oh yea, oh yea. All persons having business
Speaker 1: before the Honorable the Supreme Court of the United States
Speaker 1: are admonished to give their attention, for the court is
Speaker 1: now sitting. God save the United States and this honorable Court.
Speaker 1: The gavel will fall again on a new Supreme Court
Speaker 1: term on the first Monday in October. The past term
Speaker 1: was a momentous one for the Court, with major decisions
Speaker 1: on lgbt Q rights, presidential powers, abortion rights, religious liberties,
Speaker 1: data and federal agencies, and several controversial cases are already
Speaker 1: on the docket for the term, cases involving Obamacare, religious liberties,
Speaker 1: intellectual property, and challenges to the FTC Fannie Mae and
Speaker 1: Freddie mac. Perhaps justice revealing is what's not on the docket.
Speaker 1: There are no cases on the Second Amendment or abortion rights.
Speaker 1: Joining me to take a look ahead is Bloomberg News
Speaker 1: Supreme Court reporter Greg Store. The Court has posted the
Speaker 1: cases it's going here in October, and some of them
Speaker 1: look familiar, because there should we call them leftovers from
Speaker 1: last term. What stands out to you in those cases? Yeah,
Speaker 1: that's a good way of describing it. These are all
Speaker 1: the cases that were scheduled for argument last term but
Speaker 1: didn't actually get argued because of the coronavirus outbreak, and
Speaker 1: said they got kicked over to this term. Probably the
Speaker 1: biggest one, certainly the biggest one from a business standpoint,
Speaker 1: is this copyright fight between Google and Oracle. Oracle says
Speaker 1: that Google has systematically infringed on its copyrights in creating
Speaker 1: the Android system for mobile phones. Oracle says it is
Speaker 1: owed something like nine billion with a B dollars from Google.
Speaker 1: Google says it has done nothing wrong. That's a real
Speaker 1: fight over what the rules are going to be in
Speaker 1: the tech industry going forward. Does this mean that a
Speaker 1: case that promise is to be controversial on a topic
Speaker 1: the Court is quite familiar with by now, the Obamacare
Speaker 1: case will not be heard until November at the earliest. Yeah,
Speaker 1: that's right. And the November sitting of the Court starts
Speaker 1: the day before election day, so there's a very good
Speaker 1: chance it won't happen until after election day. This is
Speaker 1: the case where Republican leeds states sued trying to overturn
Speaker 1: the entirety of Obamacare. The argument is that back when
Speaker 1: the Supreme Court upheld it in twelve, they upheld the
Speaker 1: individual mandate, which is the thing that says people have
Speaker 1: to acquire insurance. The court upheld that as a tax
Speaker 1: because Congress attached tax penalty to not have an insurance. Well,
Speaker 1: Republican led Congress and the Trump administration eliminated that tax penalty,
Speaker 1: and so the argument is now that the individual mandate
Speaker 1: is unconstitutional, and the Republican led States, with the support
Speaker 1: of the Trump administration, are also arguing that the entire
Speaker 1: law have to be thrown out. The court has had
Speaker 1: Obamacare before it twice before, so why take up Obamacare
Speaker 1: for a third time. They're taking it up because there
Speaker 1: is now uncertainty about the state of the law. It
Speaker 1: was actually the Democratic led states or defending the law
Speaker 1: who urged the court to take it up. Federal District
Speaker 1: judge said the law was unconstitutional, and Federal Appeals Court said,
Speaker 1: we're not deciding whether the whole thing is unconstitutional, but
Speaker 1: at least this individual mandate is now unconstitutional, and maybe
Speaker 1: the rest of it. So there is great uncertainty about
Speaker 1: the state of it right now. And it seems as
Speaker 1: though when you have states on both sides and an
Speaker 1: issue that is clearly so important to get resolved. The
Speaker 1: Supreme Court felt, life, we just need to make a decision.
Speaker 1: If Trump does not win the election in November, and
Speaker 1: if the case hasn't been heard by that time, is
Speaker 1: there a possibility that it will go away. There's certainly
Speaker 1: a possibility it will change very significantly. And yet I
Speaker 1: could see a possibility it would go away. The Trump
Speaker 1: administration is involved in the case, but they didn't bring
Speaker 1: the lawsuits. There would still be a lawsuit filed by
Speaker 1: these Republican led states trying to invalidate the law. But
Speaker 1: the premise of the suit is that there is no
Speaker 1: longer a tax penalty attached to the requirements that you
Speaker 1: acquire insurance. One could imagine a world in which a
Speaker 1: Democratic controlled Congress and a Democratic president decide we're going
Speaker 1: to reinstate the tax penalty, maybe even just a nominal
Speaker 1: tax penalty, and suddenly that legal argument goes away. Now,
Speaker 1: whether that would make the case technically moot in the
Speaker 1: Supreme Court would feel like they needed to drop it,
Speaker 1: I'm not, but certainly there's a possibility that the complexion
Speaker 1: of the case would change very, very dramatically. Religious liberties
Speaker 1: were enhanced in three cases at the Court this term,
Speaker 1: and a case next term which promises to be controversial,
Speaker 1: involves religious liberties, gay rights, and foster care. This is
Speaker 1: a very big religious liberties case, in part because it's
Speaker 1: asking the Court to overturn important precedent from thirty years ago.
Speaker 1: The case is about a Catholic social services agency in
Speaker 1: Philadelphia that helps place foster kits. They screen out perspective
Speaker 1: foster parents, and this organization says, we don't work with
Speaker 1: same sex couples. We have a religious objection to that,
Speaker 1: and the city of said, okay, then you can't take
Speaker 1: part in this program. And the question is whether that
Speaker 1: violates the Constitution In the free exercise cause of the
Speaker 1: First Amendment. There is a decision from written by Justice
Speaker 1: Scalia that is being challenged, and it's a decision that said,
Speaker 1: if a state has a neutral, generally applicable law, and
Speaker 1: if it happens to have an impact on a religious practice,
Speaker 1: that is not a violation of the Constitution. In this
Speaker 1: case takes direct game that and may significantly expand constitutional
Speaker 1: religious liberties. Me next, why no case is on the
Speaker 1: Second Amendment or abortion issues. This is Bloomberg. The first
Speaker 1: case we all argue today is Case nineteen seven fifteen
Speaker 1: Donald Trump versus Major's USA. There may not be a
Speaker 1: case that draws as much attention as the Trump subpoena
Speaker 1: cases in the upcoming Supreme Court term, but there will
Speaker 1: certainly be defining cases and perhaps even decisions that overturned precedent.
Speaker 1: I've been talking to Bloomberg Supreme Court reporter Greg Store
Speaker 1: about the new term, and Greg, we were discussing one
Speaker 1: of those cases that challenges precedent, a case where religious
Speaker 1: rights and gay rights seem to collide. And in all
Speaker 1: three cases last term involving religion, the Court expanded religious
Speaker 1: liberties with either seven to two or five to four votes. Yes,
Speaker 1: they certainly have, and not all of those cases were
Speaker 1: under the guise of the Constitution. There's also a federal
Speaker 1: law known as a Religious Freedom Restoration Act. Some of
Speaker 1: the cases have involved that. The case they got a
Speaker 1: lot of attention this last term involving the Obamacare contraceptive
Speaker 1: requirement that was actually primarily a case of about federal
Speaker 1: administrative law and whether the Trump administration had checked all
Speaker 1: the boxes in terms of giving a broad religious exemption
Speaker 1: to employers and universities from that requirement. This will be
Speaker 1: certainly one of the biggest case that directly deals with
Speaker 1: the constitutional free exercise clause. So now is this Facebook's
Speaker 1: first appearance at the Court in a case involving text
Speaker 1: messages and robocalls? It is remember this last term, they
Speaker 1: had a case that challenged the federal ban on robocalls
Speaker 1: to mobile phones, and the Supreme Court upheld that law,
Speaker 1: and the Facebook case was sort of waiting in the
Speaker 1: wings for the Court to resolve that. And what it
Speaker 1: sort of gets into is not the constitutional questions of
Speaker 1: the earlier case, but kind of the nuts in both
Speaker 1: questions of what really is a robot call the law.
Speaker 1: This is a case about somebody who sued Facebook because
Speaker 1: he got text messages he didn't want, and the question
Speaker 1: is whether those text messages are covered under the statute,
Speaker 1: whether therefore he can press a lassity against Facebook, essentially
Speaker 1: a class action suit that would involve big money. A
Speaker 1: little more of a granular case, but certainly something that
Speaker 1: is of great interest to a lot of people in
Speaker 1: the tech community. Can we tell where this is going
Speaker 1: from the robot call case this term, where just about
Speaker 1: everyone agreed that nobody likes robot calls. I'm not sure
Speaker 1: we can you know robo calls for the Supreme Court justices,
Speaker 1: they all understand what those are. This case involves a
Speaker 1: little more of a question about the mechanism for sending
Speaker 1: these text messages. It is, as I said, a question
Speaker 1: of interpreting this federal statute and not so much the Constitution.
Speaker 1: So I'm not ready to say that I have any
Speaker 1: strong views on how this case is likely to come
Speaker 1: out of based on what we saw in this last term. Now,
Speaker 1: another case that seems a lot like a case this
Speaker 1: term on the SEC involves the FTC. Right. In the
Speaker 1: last term, we had a case involving the Securities and
Speaker 1: Exchange Commissions so called disgorgement power, that is, its ability
Speaker 1: to go to court and say, you, the wrongdoer, somebody
Speaker 1: who violated securities wrong laws have to give back the
Speaker 1: money you took. And the Supreme Court trim that power
Speaker 1: from the SEC essentially said, you really have to make
Speaker 1: sure you're sending the money back to investors who were defrauded,
Speaker 1: and you have to focus on the net proceeds that
Speaker 1: the wrongdoer got, but left the disgorgement power otherwise intact.
Speaker 1: And so this is to some degree the same case
Speaker 1: involving the Federal Trade Commission, which also tries to go
Speaker 1: to court to get money from wrongdoers. The difference is
Speaker 1: that it's the completely different statutes. It's a federal statute
Speaker 1: that governs the FEC that says they have the power
Speaker 1: to go to court get an injunction. And the question
Speaker 1: is essentially whether it's an injunction includes an injunction that
Speaker 1: says you the wrong door have to pay money back.
Speaker 1: Most federal pills courts pep said yes, the FDC has
Speaker 1: has that power. There is one that recently said no,
Speaker 1: it doesn't end that is very likely the Resistreme Court
Speaker 1: decided to get involved. So then we can't draw any
Speaker 1: conclusions from the case involving the SEC. We might be
Speaker 1: able to get a general leaning that the Court is
Speaker 1: not looking to do something radical in this area, though
Speaker 1: it is a question of statutory interpretation. Both cases are
Speaker 1: also at least to some degree about the traditional powers
Speaker 1: of courts. So I will at least go into this
Speaker 1: argument with the idea that the Court might not want
Speaker 1: to radically cut back on what has been a long established,
Speaker 1: a long understood power of the Federal Trade Commission. And
Speaker 1: there's a case involving a challenge to another federal agency,
Speaker 1: the Federal Housing Finance Agency and its regulation of Fannie
Speaker 1: Mae and Freddie Mack and the more than three billion
Speaker 1: dollars in dividends that have gone into the U. S. Treasury.
Speaker 1: This has echoes of two cases from last term. Yeah know,
Speaker 1: I think about it. Half the cases this term are
Speaker 1: follow ups from from cases last term. Uh. This one
Speaker 1: is somewhat connected to the fight over the Consumer Financial
Speaker 1: Protection Bureau from the last term. The main issue in
Speaker 1: this case, however, is something that is somewhat different. I'll
Speaker 1: try to explain it. Under federal law, Fannie Mae and
Speaker 1: Freddie Mack give the vast majority of their profits to
Speaker 1: the treasury. They don't go to the shareholders. And this
Speaker 1: all stems from the bail out of Fannie Main and
Speaker 1: Freddie Mac after the financial crisis. And investors are challenging
Speaker 1: that so called profit sweep, and they have a couple
Speaker 1: of different arguments for why they think that profit sweep
Speaker 1: is illegal. And what has seemed to be the main
Speaker 1: event is the f a f A, the agency that
Speaker 1: overseas Fanny and Freddy, arguing that under federal law, we
Speaker 1: are the conservator of Fannie and Freddie, and under federal law,
Speaker 1: you can't sue over something involving our conservatorship of those
Speaker 1: two entities. There's also a second claim in the case
Speaker 1: that is similar to the one in Consumer Financial Protection
Speaker 1: Bureau case. The investors argue that the f h f
Speaker 1: A is unconstitutionally structured because the director is too independent
Speaker 1: from the president can't be fired by the president for
Speaker 1: any reason. And they say that because of that unconstitutional structure,
Speaker 1: that this profit suite must be thrown out. Back in
Speaker 1: this last term, the Court entertained a similar claim about
Speaker 1: the CFPB and said it's unconstitutionally structured, but the only
Speaker 1: thing we have to do to fix it is to
Speaker 1: say the president can fire the director for any reason.
Speaker 1: So it would be a big leap for the Court
Speaker 1: to say that the remedy for any unconstitutionality about the
Speaker 1: f h f A is that we would throw out
Speaker 1: this extremely important provision that lets them collect the profits
Speaker 1: of Fannie and Freddie. Greg last term, there was a
Speaker 1: gun case, a Second Amendment case that turned out to
Speaker 1: be moot, and Justice Brett Kavanaugh mentioned other cases coming
Speaker 1: down the pike. Have they taken up any gun cases.
Speaker 1: They haven't, And it's a bit of a head scratcher,
Speaker 1: to be honest. Justice Kavanaugh did indicate he's eager to
Speaker 1: take up a Second Amendment case. Other conservative justices have
Speaker 1: as well, including Justice Thomas, who has been very outspoken.
Speaker 1: But the Court had a Second Amendment case of this
Speaker 1: current term involving gun transportation restrictions in New York City.
Speaker 1: But then the city changed its law and the Court
Speaker 1: dismissed that case. And after that happened, there were all
Speaker 1: these other cases that have been waiting in the wings,
Speaker 1: waiting for the Court to resolve the New York case.
Speaker 1: And they included an issue that federal pills courts are
Speaker 1: divided on, which is is there a constitutional right to
Speaker 1: carry a weapon in public or is it only a
Speaker 1: right that applies in your home for self defense purposes.
Speaker 1: Lower courts are split on that. They had a couple
Speaker 1: of cases that look like really good candidates for them
Speaker 1: to take up, and they chose not to. And I
Speaker 1: think the clearest thing that one can say is there
Speaker 1: is not a huge appetite on the Court at this
Speaker 1: very moment for expanding the second amend a mint expanding
Speaker 1: the rights that are covered by it. And for the
Speaker 1: time being, no, we do not have a gun rights
Speaker 1: case on the agenda for next term, and it's not
Speaker 1: clear that we're going to. This term. There was an
Speaker 1: abortion case, and of course there was a lot of
Speaker 1: controversy surrounding it because of the issue itself and also
Speaker 1: because of the newly conservative court, and people were wondering
Speaker 1: whether they would start to cut back on abortion rights.
Speaker 1: Are there any abortion rights cases on the docket coming up?
Speaker 1: There are not be much like with gun rights, The
Speaker 1: Court at the end of its term said it wasn't
Speaker 1: going to hear several cases, so it's passed on the
Speaker 1: chance now in the case of abortion, that may be
Speaker 1: because it wants the lower courts to digest the ruling
Speaker 1: that it issued this term. That was one where Chief
Speaker 1: Justice John Roberts has the keyboat to strike down this
Speaker 1: Louisian law that required doctors an abortion clinics to get
Speaker 1: privileges at a local hospital. The chiefs pointed to the
Speaker 1: decision four years earlier where the Court had struck down
Speaker 1: an identical Texas law, and rob said, I disagreed with
Speaker 1: that decision. But it's the law of the land, and
Speaker 1: the Louisiana law is is identical. So I'm going to
Speaker 1: both to strike that down as well. It's possible that
Speaker 1: that the Chief Justice, because of the language in his opinion,
Speaker 1: would be willing to uphold a lot of other abortion restrictions.
Speaker 1: But at the end of the term, when the Court
Speaker 1: decided we're not going to take these other cases, that
Speaker 1: did sort of send a little bit of a message
Speaker 1: that maybe he is not especially eager to take up
Speaker 1: another abortion case every time. Soon, finally, the Court is
Speaker 1: going to consider new curbs on human rights lawsuits in
Speaker 1: a case involving child slavery on coco farms on the
Speaker 1: Ivory Coast. Yeah, this is a type of issue the
Speaker 1: Court has has dealt with before. The facts of this
Speaker 1: case are that ness Lee's US unit and Cargill are
Speaker 1: both fighting lawsuits that accuse them of complicity and child
Speaker 1: labor in the Ivory Coast and producing cocoa. Both companies
Speaker 1: deny the allegations. But the issue before the Court has
Speaker 1: to do with this law known as the Alien Torch
Speaker 1: statutes that they've had several old times before that has
Speaker 1: been used to press human rights lawsuits over international atrocities,
Speaker 1: and the Supreme Court, in a series of decisions, have
Speaker 1: scaled that law back so that it's used less and less.
Speaker 1: And one of the questions that was left open from
Speaker 1: the previous decisions is whether it can be applied against
Speaker 1: a US corporation as opposed to a foreign corporation that
Speaker 1: was involved in these overseas atrocities. The Court seemingly is
Speaker 1: going to answer that question in this case. There are
Speaker 1: also arguments from the companies that even if the law
Speaker 1: could be applied to domestic companies, our domestic units were
Speaker 1: not involved enough to let the lawsuits go forward. It
Speaker 1: is an area of law where we've seen the conservatives
Speaker 1: on the Court slowly but surely chipping away at the
Speaker 1: alien towards statutes so that it cannot be used because
Speaker 1: these sorts of lawsuits. Thanks Graig, it sounds like an
Speaker 1: exciting term to come. That's Bloomberg News Supreme Court Reporter
Speaker 1: Greg Store and that's it for the sedition of the
Speaker 1: Bloomberg Law Show. I'm to Grosso. Thanks so much for listening,
Speaker 1: and remember to tune into The Bloomberg Law Show every
Speaker 1: weeknight at ten pm Eastern right here on Bloomberg Radio,
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