1 00:00:02,400 --> 00:00:10,760 Speaker 1: Bloomberg Audio Studios, Podcasts, radio news. This is Bloomberg Law. 2 00:00:10,920 --> 00:00:13,720 Speaker 2: What does a prosecutor have to prove in order to 3 00:00:13,760 --> 00:00:16,920 Speaker 2: get a Rico conviction? Tell us why this solicitor General 4 00:00:17,000 --> 00:00:19,279 Speaker 2: is sometimes referred to as the tenth Justice. 5 00:00:19,320 --> 00:00:22,520 Speaker 1: Interviews with prominent attorneys in Bloomberg Legal Experts. 6 00:00:22,560 --> 00:00:25,320 Speaker 2: That's Jennifer k for Bloomberg Law. Joining me is former 7 00:00:25,440 --> 00:00:27,160 Speaker 2: federal prosecutor Robert mint. 8 00:00:27,040 --> 00:00:30,200 Speaker 1: And analysis of important legal issues, cases and headlines. 9 00:00:30,240 --> 00:00:34,040 Speaker 2: It's the toughest hurdle for prosecutors proving Trump's intent. Alito 10 00:00:34,120 --> 00:00:37,479 Speaker 2: took on Congress, saying Congress has no power to regulate 11 00:00:37,520 --> 00:00:38,479 Speaker 2: the Supreme Court. 12 00:00:38,520 --> 00:00:41,640 Speaker 1: Bloomberg Law with June Grosso from Bloomberg Radio. 13 00:00:44,800 --> 00:00:47,960 Speaker 2: Welcome to a special Holiday edition of the Bloomberg Law Show. 14 00:00:48,320 --> 00:00:51,239 Speaker 2: I'm June Grosso. Ahead in this hour, we'll take a 15 00:00:51,240 --> 00:00:55,120 Speaker 2: look back at some crucial Supreme Court arguments this term. 16 00:00:55,240 --> 00:00:59,760 Speaker 2: The justices considered regulations on ghost guns just months after 17 00:00:59,800 --> 00:01:03,560 Speaker 2: all landmark decision on bump stocks. Will also look at 18 00:01:03,560 --> 00:01:07,400 Speaker 2: a unique death penalty appeal where the state of Oklahoma 19 00:01:07,680 --> 00:01:11,399 Speaker 2: is siding with the death row inmate. But first, the 20 00:01:11,520 --> 00:01:15,800 Speaker 2: liberal city of San Francisco found itself in an unusual 21 00:01:15,840 --> 00:01:19,920 Speaker 2: position at the Supreme Court, taking on the Environmental Protection 22 00:01:20,080 --> 00:01:24,480 Speaker 2: Agency over sewage discharge into the Pacific Ocean. With a 23 00:01:24,560 --> 00:01:28,560 Speaker 2: ten billion dollar fine on the line. The city's attorney, 24 00:01:28,680 --> 00:01:32,360 Speaker 2: Tara Steely, argued that the regulations were too vague. 25 00:01:32,720 --> 00:01:34,800 Speaker 3: They might as well have said, do not violate the 26 00:01:34,800 --> 00:01:37,200 Speaker 3: Clean Water Act. It doesn't tell us anything. 27 00:01:37,440 --> 00:01:41,959 Speaker 2: But the liberal justice is pushed back on San Francisco's arguments. 28 00:01:42,280 --> 00:01:46,000 Speaker 2: Here are Justices Elena Kagan and Sonya So to Mayor. 29 00:01:46,160 --> 00:01:50,040 Speaker 4: It's prescribing that you have to meet water quality standards, Like, 30 00:01:50,160 --> 00:01:54,480 Speaker 4: how more clearly could you meet this statutory language than that? 31 00:01:55,800 --> 00:02:02,560 Speaker 4: What they're asking you is to become responsible doing what's necessary. 32 00:02:03,040 --> 00:02:09,080 Speaker 2: The ideological divide was apparent, with conservative justices expressing concerns 33 00:02:09,520 --> 00:02:13,160 Speaker 2: about the fairness of the city facing billions in fines 34 00:02:13,440 --> 00:02:16,960 Speaker 2: without knowing what its obligations are under a vague permit. 35 00:02:17,480 --> 00:02:22,120 Speaker 2: Just as Brett Cavanaugh challenged the EPA's attorney, Frederick lew. 36 00:02:22,560 --> 00:02:26,000 Speaker 5: You're suing San Francisco separately for a lot of money 37 00:02:26,880 --> 00:02:30,840 Speaker 5: based on a standard that they had no idea. You know, 38 00:02:31,400 --> 00:02:34,520 Speaker 5: that's the theory. That's the theory in your position, your 39 00:02:34,560 --> 00:02:37,800 Speaker 5: position would allow that. I don't, yes, it will. I 40 00:02:37,800 --> 00:02:40,480 Speaker 5: mean the base I complaint is exhibit A for what 41 00:02:41,160 --> 00:02:42,880 Speaker 5: you said is not going to be true. 42 00:02:43,120 --> 00:02:46,680 Speaker 2: And Chief Justice John Roberts pointed out that Congress had 43 00:02:46,800 --> 00:02:50,000 Speaker 2: updated the law to address the kind of concerns that 44 00:02:50,080 --> 00:02:53,440 Speaker 2: San Francisco was raising about a lack of clarity. 45 00:02:53,880 --> 00:02:56,520 Speaker 6: The battle days is when we had water quality standards, right, 46 00:02:56,560 --> 00:02:58,560 Speaker 6: people didn't know what they were supposed to do, how 47 00:02:58,560 --> 00:03:00,519 Speaker 6: it was going to be allocated, sort of a problem 48 00:03:00,919 --> 00:03:02,920 Speaker 6: of the commons, and they put in the permit system. 49 00:03:03,200 --> 00:03:05,520 Speaker 6: And I think the danger here is that you're going 50 00:03:05,560 --> 00:03:06,680 Speaker 6: back to the other system. 51 00:03:07,200 --> 00:03:10,840 Speaker 2: Joining me is former US Solicitor General Gregory garr, a 52 00:03:10,919 --> 00:03:13,880 Speaker 2: partner at Latham and Watkins. Great tell us about the 53 00:03:13,919 --> 00:03:15,239 Speaker 2: city's argument here. 54 00:03:15,560 --> 00:03:18,720 Speaker 7: So, the City of San Francisco is concerned about the 55 00:03:18,840 --> 00:03:21,200 Speaker 7: lack of fair notice that they have in terms of 56 00:03:21,320 --> 00:03:24,320 Speaker 7: how to comply with the Clean Water Act as to 57 00:03:24,600 --> 00:03:28,079 Speaker 7: the sewage discharge that's going into the Pacific Ocean. And 58 00:03:28,639 --> 00:03:32,360 Speaker 7: their argument is that the Clean Water Act obligates the 59 00:03:32,400 --> 00:03:37,000 Speaker 7: EPA to set specific effluent limitations on the amount of 60 00:03:37,120 --> 00:03:40,720 Speaker 7: pollutants coming out of pink sources. Discharges like the pipes 61 00:03:40,760 --> 00:03:44,400 Speaker 7: going into the ocean, and that instead, what the EPA 62 00:03:44,480 --> 00:03:48,960 Speaker 7: has done here is just issued these vague water quality standards. 63 00:03:49,120 --> 00:03:50,800 Speaker 7: You have to be sure that the water is a 64 00:03:50,840 --> 00:03:54,520 Speaker 7: particular color where the sewage is coming out, or you know, 65 00:03:54,840 --> 00:03:58,400 Speaker 7: NEETs other criteria. And the city's argument is that, well, 66 00:03:58,440 --> 00:04:01,400 Speaker 7: they don't know how to meet those criteria, there's other 67 00:04:01,600 --> 00:04:05,200 Speaker 7: sources coming in, who's responsible for what? And you know, 68 00:04:05,320 --> 00:04:08,080 Speaker 7: all this is against the backtop of a suit brought 69 00:04:08,120 --> 00:04:11,120 Speaker 7: by the EPA in which they're seeking, according to the city, 70 00:04:11,480 --> 00:04:15,760 Speaker 7: literally ten billion dollars in penalties. So the city feels 71 00:04:15,760 --> 00:04:17,840 Speaker 7: as though they lacked the fair notice that they were 72 00:04:18,000 --> 00:04:20,919 Speaker 7: entitled to under the Act up front in terms of 73 00:04:20,920 --> 00:04:22,919 Speaker 7: what discharges could go into the ocean. 74 00:04:23,400 --> 00:04:26,800 Speaker 2: Did it seem like the three liberal justices were pushing 75 00:04:26,880 --> 00:04:28,520 Speaker 2: back on the city's argument. 76 00:04:29,080 --> 00:04:34,400 Speaker 7: Definitely. Justice Kagan, Justice Sodamor, and Justice Jackson all leaned 77 00:04:34,400 --> 00:04:38,040 Speaker 7: in hard against the city on their arguments, and they 78 00:04:38,080 --> 00:04:41,600 Speaker 7: took a number of different tacks. Most importantly, I think 79 00:04:41,640 --> 00:04:44,600 Speaker 7: they really wanted to focus the city on the text 80 00:04:44,680 --> 00:04:47,440 Speaker 7: of the Act and put the city on its heels 81 00:04:47,480 --> 00:04:50,400 Speaker 7: in terms of identifying a provision of the Act that 82 00:04:50,640 --> 00:04:53,440 Speaker 7: stripped EPA of the authority to issue these sorts of 83 00:04:53,600 --> 00:04:58,960 Speaker 7: broader water quality standards and justice Jackson in particular went 84 00:04:59,000 --> 00:05:01,400 Speaker 7: into the language in the Act which says that the 85 00:05:01,440 --> 00:05:06,520 Speaker 7: EPA could adopt quote any more stringent limitations end quote, 86 00:05:06,560 --> 00:05:08,800 Speaker 7: and argued that, you know, the city was wrong in 87 00:05:08,839 --> 00:05:13,760 Speaker 7: saying that the limitations were limited to effluent limitations coming out. 88 00:05:14,040 --> 00:05:17,680 Speaker 7: The justices also had hard questions for the cities about 89 00:05:17,720 --> 00:05:22,560 Speaker 7: the environmental impact potential environmental impacts of the city's position, 90 00:05:22,839 --> 00:05:25,080 Speaker 7: which at times got pretty gross in terms of talking 91 00:05:25,080 --> 00:05:28,440 Speaker 7: about floating toilet paper and the like. But the city 92 00:05:28,560 --> 00:05:31,800 Speaker 7: definitely based a tough crowd from the more liberal end. 93 00:05:31,720 --> 00:05:34,920 Speaker 2: Of the court, and the EPA's attorney faced a tough 94 00:05:34,960 --> 00:05:39,160 Speaker 2: crowd from the more conservative justices. Tell us about his argument. 95 00:05:39,720 --> 00:05:42,880 Speaker 7: So his argument was that number one, that the statute 96 00:05:42,960 --> 00:05:46,560 Speaker 7: did confer this more broader authority on EPA, and that 97 00:05:46,640 --> 00:05:51,119 Speaker 7: it could be exercise in particular instances more limited circumstances, 98 00:05:51,600 --> 00:05:54,560 Speaker 7: and that here he claimed that the problem really was 99 00:05:54,640 --> 00:05:58,200 Speaker 7: one of San Francisco's own creation, and that he claimed 100 00:05:58,240 --> 00:06:02,599 Speaker 7: that EPA had asked for specific data from the city 101 00:06:02,640 --> 00:06:04,960 Speaker 7: about its discharges and the like, and the city never 102 00:06:05,040 --> 00:06:09,200 Speaker 7: provided it, and so according to the EPA attorney, they 103 00:06:09,240 --> 00:06:12,440 Speaker 7: had no choice but to issue these more general water 104 00:06:12,520 --> 00:06:15,440 Speaker 7: quality standards. And you know, really one of the more 105 00:06:15,480 --> 00:06:18,840 Speaker 7: interesting dynamics of this oral argument is this was the 106 00:06:18,839 --> 00:06:22,120 Speaker 7: City of San Francisco, one of the more progressive jurisdictions 107 00:06:22,120 --> 00:06:26,200 Speaker 7: in the country, facing off against the Biden administration EPA, 108 00:06:26,600 --> 00:06:28,520 Speaker 7: and it was clear that there was no love loss 109 00:06:28,560 --> 00:06:31,480 Speaker 7: between them, at least as to this particular issue. 110 00:06:31,600 --> 00:06:31,800 Speaker 4: Yeah. 111 00:06:31,800 --> 00:06:33,680 Speaker 2: Well, this is a case where the city's Board of 112 00:06:33,720 --> 00:06:37,320 Speaker 2: supervisors voted eight to two to urge the city officials 113 00:06:37,360 --> 00:06:41,120 Speaker 2: to resolve the suit quickly, there being a concern that 114 00:06:41,440 --> 00:06:45,159 Speaker 2: a Supreme Court ruling in the city's favor could have 115 00:06:45,320 --> 00:06:50,560 Speaker 2: sweeping implications for curtailing water pollution definitely. 116 00:06:50,200 --> 00:06:53,680 Speaker 7: And it's unclear how far the court would go even 117 00:06:53,720 --> 00:06:56,600 Speaker 7: if it ruled for the city in this case. You know, 118 00:06:56,640 --> 00:07:01,040 Speaker 7: there were justices sort of probing more narrow rulings, and 119 00:07:01,080 --> 00:07:03,719 Speaker 7: I think even if the court ruled in favor of 120 00:07:03,760 --> 00:07:06,479 Speaker 7: the city, it probably would you try to limit the 121 00:07:06,520 --> 00:07:09,200 Speaker 7: reach of its ruling. But you know, the basic question 122 00:07:09,400 --> 00:07:12,080 Speaker 7: on the table is whether ETA has the authority to 123 00:07:12,120 --> 00:07:15,720 Speaker 7: issue these broader water quality standards, which is something that 124 00:07:15,840 --> 00:07:18,680 Speaker 7: is the Chief Justice pointed out during the oral argument 125 00:07:18,920 --> 00:07:21,600 Speaker 7: that you know, this is what the prior regime did. 126 00:07:21,800 --> 00:07:24,880 Speaker 7: It issued these general water quality standards instead of specific 127 00:07:25,240 --> 00:07:29,040 Speaker 7: discharge limitations. And in his view, and this is what 128 00:07:29,160 --> 00:07:31,600 Speaker 7: the city argued, that the Clean Water Act was actually 129 00:07:31,840 --> 00:07:35,200 Speaker 7: enacted in part to replace that regime with one which 130 00:07:35,560 --> 00:07:39,160 Speaker 7: gave the dischargers more notice upfront in terms of the 131 00:07:39,200 --> 00:07:42,040 Speaker 7: specific limitations that were permissible. 132 00:07:42,520 --> 00:07:46,760 Speaker 2: And did it seem just as the liberals were taking 133 00:07:46,880 --> 00:07:50,400 Speaker 2: issue with the City, that the Conservatives were taking issue 134 00:07:50,440 --> 00:07:51,480 Speaker 2: with the EPA. 135 00:07:52,080 --> 00:07:53,520 Speaker 7: Well, there was a group of them. There was the 136 00:07:53,600 --> 00:07:57,880 Speaker 7: Chief Justice, Justice Kavanaugh. Justice Gorsich pushed back the hardest, 137 00:07:58,000 --> 00:08:00,520 Speaker 7: I think, and the main concern on that sort of 138 00:08:00,560 --> 00:08:03,360 Speaker 7: unified them was the lack of fair notice to the 139 00:08:03,480 --> 00:08:06,880 Speaker 7: city and other dischargers in this situation. Where As I 140 00:08:06,920 --> 00:08:10,440 Speaker 7: mentioned earlier, you know, potentially these jurisdictions are on the 141 00:08:10,440 --> 00:08:13,880 Speaker 7: hook for significant penalties in this case, you know, literally 142 00:08:13,960 --> 00:08:17,320 Speaker 7: billions of dollars according to the city, and they don't 143 00:08:17,360 --> 00:08:20,840 Speaker 7: know exactly, the city argues, and the Conservatives sort of 144 00:08:20,880 --> 00:08:24,040 Speaker 7: picked up on how to comply with the Clean Water 145 00:08:24,120 --> 00:08:28,560 Speaker 7: Act in this instance, particularly where there are multiple discharges 146 00:08:28,680 --> 00:08:31,680 Speaker 7: going into the same place, and who's responsible for what 147 00:08:31,840 --> 00:08:34,440 Speaker 7: in terms of figuring out whether or not the water 148 00:08:34,559 --> 00:08:38,600 Speaker 7: quality standard is met. But there was some uncertainty, at 149 00:08:38,679 --> 00:08:42,280 Speaker 7: least in terms of where the other justices were. Justice Barrett, 150 00:08:42,280 --> 00:08:45,280 Speaker 7: who actually joined the more liberal justices in an environmental 151 00:08:45,360 --> 00:08:49,040 Speaker 7: case last term, Ohio versus EPA, you know, didn't join 152 00:08:49,400 --> 00:08:52,880 Speaker 7: the stronger attack by the other conservative justices and seemed 153 00:08:52,880 --> 00:08:56,760 Speaker 7: to be probing a narrower angle and dealing with these 154 00:08:56,840 --> 00:09:02,320 Speaker 7: challenges under the arbitrary and capricious doctrine. Justice Solito picked 155 00:09:02,400 --> 00:09:04,679 Speaker 7: up a little bit on the government's argument that in 156 00:09:04,679 --> 00:09:07,920 Speaker 7: this case, the problem was that San Francisco hadn't provided 157 00:09:08,040 --> 00:09:10,960 Speaker 7: adequate data to the EPA, leaving it with the predicament 158 00:09:11,000 --> 00:09:13,240 Speaker 7: that it had to issue these more general standards, and 159 00:09:13,440 --> 00:09:16,680 Speaker 7: Justice Thomas definitely had some tough questions for the city, 160 00:09:17,040 --> 00:09:19,240 Speaker 7: although his position was a little bit less clear. So, 161 00:09:19,440 --> 00:09:21,640 Speaker 7: you know, San Francisco coming out of the argument, I 162 00:09:21,640 --> 00:09:25,120 Speaker 7: think should feel good about its position, but it's not 163 00:09:25,240 --> 00:09:25,800 Speaker 7: over yet. 164 00:09:26,080 --> 00:09:29,120 Speaker 2: Are other cities in the same position as San Francisco 165 00:09:29,520 --> 00:09:30,640 Speaker 2: have the same problems. 166 00:09:31,040 --> 00:09:34,040 Speaker 7: So I think that the use of general Walader quality 167 00:09:34,080 --> 00:09:36,720 Speaker 7: standards is definitely not the norm. But one thing that 168 00:09:36,800 --> 00:09:39,800 Speaker 7: came up during the oral argument in response to questioning 169 00:09:39,840 --> 00:09:44,160 Speaker 7: from Justice Kavanaugh was that there was many amikas brief 170 00:09:44,280 --> 00:09:48,559 Speaker 7: file friends of the Court, from businesses, municipalities, and the 171 00:09:48,800 --> 00:09:53,600 Speaker 7: like who had serious concerns and reservations and problems with 172 00:09:53,880 --> 00:09:57,080 Speaker 7: the EPA's approach here, and you know, talked about the 173 00:09:57,160 --> 00:09:59,240 Speaker 7: dangers and lack of fair notice with this sort of 174 00:09:59,360 --> 00:10:03,080 Speaker 7: more general water quality standard regime, and that was something 175 00:10:03,080 --> 00:10:07,240 Speaker 7: that resonated with Justice Kavanaugh at least and probably some 176 00:10:07,360 --> 00:10:08,800 Speaker 7: of the other justices as well. 177 00:10:08,960 --> 00:10:13,199 Speaker 2: This is the first case to grapple with federal agency 178 00:10:13,360 --> 00:10:19,080 Speaker 2: power since lopeer Bright was decided last June. That's the 179 00:10:19,160 --> 00:10:23,319 Speaker 2: case that overturned Chevron deference. So you didn't hear much 180 00:10:23,360 --> 00:10:26,920 Speaker 2: about Chevron deference in these oral arguments. 181 00:10:27,080 --> 00:10:30,480 Speaker 7: No, not a word. EPA certainly didn't ask for it, 182 00:10:30,600 --> 00:10:32,480 Speaker 7: and you know, it was clear that this is going 183 00:10:32,520 --> 00:10:35,120 Speaker 7: to come down to what Congress actually said in the 184 00:10:35,120 --> 00:10:39,160 Speaker 7: statute and the Court's best interpretation of that, which, of 185 00:10:39,200 --> 00:10:42,600 Speaker 7: course is the way it works after Wiperbright, and really 186 00:10:42,640 --> 00:10:45,480 Speaker 7: the way has worked at the Supreme Court for many years, 187 00:10:45,480 --> 00:10:46,640 Speaker 7: even before Loperbright. 188 00:10:47,000 --> 00:10:48,640 Speaker 2: Do you think that we're just not going to hear 189 00:10:48,679 --> 00:10:52,360 Speaker 2: about chevron defference in future arguments at all, or about 190 00:10:52,360 --> 00:10:53,079 Speaker 2: that concept. 191 00:10:53,320 --> 00:10:55,640 Speaker 7: We're definitely not going to hear about chevron difference. I 192 00:10:55,640 --> 00:10:59,440 Speaker 7: think the more interesting question is will we hear about 193 00:10:59,480 --> 00:11:02,800 Speaker 7: other time types of difference, so called get more difference? 194 00:11:03,000 --> 00:11:07,800 Speaker 7: You know, how aggressive will the government be in trying 195 00:11:07,800 --> 00:11:11,760 Speaker 7: to claim some type of difference in other cases and 196 00:11:12,120 --> 00:11:14,520 Speaker 7: try to push back a little bit? And I think 197 00:11:14,520 --> 00:11:17,000 Speaker 7: that that'll be an interesting trend to follow on the 198 00:11:17,040 --> 00:11:19,000 Speaker 7: court this term and beyond. 199 00:11:19,520 --> 00:11:23,240 Speaker 2: The EPA has faced a string of losses at the 200 00:11:23,320 --> 00:11:27,280 Speaker 2: Supreme Court in recent years, for example, with the court 201 00:11:27,440 --> 00:11:33,000 Speaker 2: curbing its ability to reduce greenhouse gases and to protect wetlands. 202 00:11:33,440 --> 00:11:36,360 Speaker 2: Does it seem like in some respect it's going to 203 00:11:37,040 --> 00:11:41,240 Speaker 2: lose in this case as well, whether it's broad or limited. 204 00:11:41,480 --> 00:11:44,199 Speaker 7: I don't think that that's a certainty at this point. 205 00:11:44,280 --> 00:11:46,040 Speaker 7: I mean, one of the other questions that came up 206 00:11:46,200 --> 00:11:48,600 Speaker 7: during the oral argument was whether or not there were 207 00:11:48,640 --> 00:11:51,040 Speaker 7: some flaws with this case, and maybe the court just 208 00:11:51,120 --> 00:11:54,440 Speaker 7: not decided altogether. But you know, I think you're going 209 00:11:54,480 --> 00:11:56,920 Speaker 7: to feel better about youural argument coming out of it 210 00:11:56,960 --> 00:12:00,120 Speaker 7: if you're san Francisco an EPA, and I think you 211 00:12:00,160 --> 00:12:03,679 Speaker 7: know EPA and the government more generally has been behind 212 00:12:03,679 --> 00:12:07,800 Speaker 7: the eight ball and these administrative challenge cases, and you know, 213 00:12:07,960 --> 00:12:11,520 Speaker 7: EPA sort of finds itself in a particularly difficult positions 214 00:12:11,600 --> 00:12:17,800 Speaker 7: when you combined aggressive enforcement of its environmental priorities with 215 00:12:18,320 --> 00:12:22,280 Speaker 7: broader statutory provisions, which is the area where the Supreme 216 00:12:22,280 --> 00:12:27,160 Speaker 7: Court has been particularly adamant in demanding the the agency 217 00:12:27,160 --> 00:12:30,040 Speaker 7: point to more specific authority in the statute for what 218 00:12:30,080 --> 00:12:30,560 Speaker 7: it's doing. 219 00:12:30,880 --> 00:12:33,120 Speaker 2: Thanks so much for coming on again, Greg and sharing 220 00:12:33,160 --> 00:12:37,199 Speaker 2: those insights with us. That's former US Solicitor General Gregory 221 00:12:37,320 --> 00:12:40,280 Speaker 2: Garr of Latham and Watkins. Coming up next on this 222 00:12:40,360 --> 00:12:44,480 Speaker 2: special holiday edition of the Bloomberg Law Show, the justices 223 00:12:44,559 --> 00:12:48,240 Speaker 2: grapple with whether ghost guns meet the federal definition of 224 00:12:48,280 --> 00:12:51,480 Speaker 2: a firearm. I'm June Grasso. When you're listening to. 225 00:12:51,400 --> 00:13:05,160 Speaker 1: Bloomberg, this is Bloomberg Law with June Grosso from Bloomberg Radio. 226 00:13:06,040 --> 00:13:08,679 Speaker 2: Thanks for joining us for a special holiday edition of 227 00:13:08,720 --> 00:13:12,520 Speaker 2: the Bloomberg Law Show. I'm June Grosso. We're looking at 228 00:13:12,520 --> 00:13:17,120 Speaker 2: some high profile Supreme Court arguments from this term. Still ahead, 229 00:13:17,160 --> 00:13:21,040 Speaker 2: we'll dive into an unusual death penalty case that finds 230 00:13:21,040 --> 00:13:25,560 Speaker 2: the State of Oklahoma siding with a defendant on death row. 231 00:13:25,600 --> 00:13:29,360 Speaker 8: But first these guns were being purchased and used in crime. 232 00:13:29,800 --> 00:13:32,080 Speaker 8: They were sold to be crime guns. There was a 233 00:13:32,120 --> 00:13:35,680 Speaker 8: one thousand percent increase between twenty seventeen and twenty twenty 234 00:13:35,679 --> 00:13:37,800 Speaker 8: one in the number of these guns that were recovered 235 00:13:37,840 --> 00:13:41,280 Speaker 8: as part of criminal investigations. And it makes perfect sense 236 00:13:41,320 --> 00:13:43,160 Speaker 8: because the whole reason why you would want to get 237 00:13:43,160 --> 00:13:47,200 Speaker 8: your hands on one of these unseerialized, untraceable firearms is 238 00:13:47,240 --> 00:13:49,719 Speaker 8: if you are a prohibited person or you want to 239 00:13:49,840 --> 00:13:51,000 Speaker 8: use that gun in a crime. 240 00:13:51,360 --> 00:13:55,760 Speaker 2: Solicitor General Elizabeth Prelager argued that the Supreme Court should 241 00:13:55,840 --> 00:14:01,280 Speaker 2: uphold the Biden administration's regulation of ghost guns, nearly untraceable 242 00:14:01,440 --> 00:14:04,520 Speaker 2: firearms that can be assembled at home in as little 243 00:14:04,559 --> 00:14:05,600 Speaker 2: as twenty minutes. 244 00:14:06,040 --> 00:14:09,280 Speaker 8: Those untraceable guns are attractive to people who can't lawfully 245 00:14:09,320 --> 00:14:11,840 Speaker 8: purchase them or who plan to use them in crimes. 246 00:14:12,400 --> 00:14:15,040 Speaker 8: As a result, our nation has seen an explosion in 247 00:14:15,080 --> 00:14:16,760 Speaker 8: crimes committed with ghost guns. 248 00:14:17,320 --> 00:14:20,960 Speaker 2: During oral arguments, the Justice is grappled with the question 249 00:14:21,120 --> 00:14:25,000 Speaker 2: of whether ghost guns meet the definition of firearms under 250 00:14:25,000 --> 00:14:28,000 Speaker 2: the Federal Gun Control Act that would allow the government 251 00:14:28,120 --> 00:14:33,160 Speaker 2: to regulate them. The analogies were plentiful. Justice Samuel Alito, 252 00:14:33,240 --> 00:14:37,160 Speaker 2: who seemed skeptical of the government's argument, compared the gun 253 00:14:37,280 --> 00:14:39,120 Speaker 2: kits to cooking ingredients. 254 00:14:39,560 --> 00:14:42,720 Speaker 5: There I show you I put out on a counter 255 00:14:43,600 --> 00:14:47,920 Speaker 5: some eggs, some chopped up ham, some chopped up pepper, 256 00:14:48,320 --> 00:14:49,240 Speaker 5: and onions. 257 00:14:50,960 --> 00:14:52,200 Speaker 1: Is that a Western ovelet? 258 00:14:53,000 --> 00:14:56,360 Speaker 8: No, because again those items have well known other uses 259 00:14:56,360 --> 00:14:59,200 Speaker 8: to become something other than an omelet. The key difference 260 00:14:59,240 --> 00:15:02,000 Speaker 8: here is that these up and parts kits are designed 261 00:15:02,040 --> 00:15:04,280 Speaker 8: and intended to be used as instruments of combat, and 262 00:15:04,320 --> 00:15:06,320 Speaker 8: they have no other conceivable use. 263 00:15:06,760 --> 00:15:10,800 Speaker 2: But Justice Amy Coney Barrett jumped in comparing gun kits 264 00:15:11,080 --> 00:15:11,960 Speaker 2: to meal kits. 265 00:15:12,440 --> 00:15:13,080 Speaker 4: No pre lager. 266 00:15:13,320 --> 00:15:15,600 Speaker 3: I just want to follow up on Justice Alito's question 267 00:15:15,640 --> 00:15:18,800 Speaker 3: about the omelet. Would your answer change if you ordered 268 00:15:18,840 --> 00:15:21,600 Speaker 3: it from Hello Fresh and you've got a kit and 269 00:15:21,680 --> 00:15:24,400 Speaker 3: it was like turkey chili, but all of the ingredient 270 00:15:24,400 --> 00:15:25,400 Speaker 3: answer in the kit. 271 00:15:25,920 --> 00:15:26,120 Speaker 1: Yes. 272 00:15:26,440 --> 00:15:29,120 Speaker 2: The best analogies seemed to be if you buy a 273 00:15:29,120 --> 00:15:31,920 Speaker 2: bed from Ikea that you have to assemble, is it 274 00:15:32,000 --> 00:15:35,480 Speaker 2: still a bed? Joining me? Is Kevin Tobia, a professor 275 00:15:35,520 --> 00:15:39,240 Speaker 2: at Georgetown Law, Many people might expect that this is 276 00:15:39,280 --> 00:15:43,080 Speaker 2: a second Amendment case since it concerns guns, but tell 277 00:15:43,160 --> 00:15:45,280 Speaker 2: us what the question before the court was. 278 00:15:45,280 --> 00:15:47,320 Speaker 9: Here, So it's not a second in the case. It's 279 00:15:47,360 --> 00:15:50,960 Speaker 9: a statutory case. So it concerns the Gun Control Act 280 00:15:51,000 --> 00:15:54,360 Speaker 9: of nine sixty eight. And there's two questions in the case, 281 00:15:54,400 --> 00:15:57,040 Speaker 9: and so both of them involve the meaning of different 282 00:15:57,160 --> 00:15:59,840 Speaker 9: language in this statute. So the question in some ways 283 00:15:59,840 --> 00:16:01,480 Speaker 9: is kind of simple, right before you get to like 284 00:16:01,520 --> 00:16:03,280 Speaker 9: all the kind of complexity that they were working through, 285 00:16:03,320 --> 00:16:05,720 Speaker 9: which is what counts as a firearm for this law. 286 00:16:05,960 --> 00:16:08,960 Speaker 9: And so these gun parts kits, they're marketed and sold 287 00:16:09,120 --> 00:16:12,760 Speaker 9: as kits that you can buy and assemble and construct 288 00:16:12,920 --> 00:16:15,560 Speaker 9: into a functional firearm. So, you know, a lot of 289 00:16:15,560 --> 00:16:18,840 Speaker 9: the conversation was drawing analogies to different sorts of goods, 290 00:16:18,840 --> 00:16:21,800 Speaker 9: playing kind of with language and trying to understand, you know, 291 00:16:21,840 --> 00:16:24,280 Speaker 9: what counts as an omelet or what counts as a table. 292 00:16:24,360 --> 00:16:24,520 Speaker 8: Right. 293 00:16:24,560 --> 00:16:27,280 Speaker 9: So Justice A. Leado offered this example kind of possible 294 00:16:27,320 --> 00:16:29,560 Speaker 9: to the government's position that if we just have you know, 295 00:16:29,640 --> 00:16:32,840 Speaker 9: peppers and mushrooms and eggs, that's not an omelet yet. 296 00:16:32,920 --> 00:16:35,200 Speaker 9: So in the same way, like a collection of gun 297 00:16:35,240 --> 00:16:37,800 Speaker 9: parts is not a firearm yet, And just as Barrett 298 00:16:37,840 --> 00:16:39,840 Speaker 9: actually sort of responded as said, well, what if those 299 00:16:39,840 --> 00:16:42,120 Speaker 9: come in a Hello Fresh kit, we actually might understand 300 00:16:42,160 --> 00:16:44,760 Speaker 9: that as an omelet, even though it's not completely assembled yet. 301 00:16:44,840 --> 00:16:46,880 Speaker 9: And you know, the example of Nikia table came up 302 00:16:46,880 --> 00:16:48,960 Speaker 9: as well. Some of the argument got into the technicalities 303 00:16:49,000 --> 00:16:51,200 Speaker 9: of like what exactly is included in these parts kits? 304 00:16:51,240 --> 00:16:53,640 Speaker 9: What's a frame and receiver? More broadly, a lot of 305 00:16:53,640 --> 00:16:56,520 Speaker 9: the justices were drawing these analogies to other sorts of 306 00:16:56,600 --> 00:16:59,800 Speaker 9: items that were pretty comfortable to call tables even though 307 00:16:59,800 --> 00:17:02,240 Speaker 9: they're assembled or onless, even though they're unassembled. 308 00:17:02,680 --> 00:17:06,600 Speaker 2: The ghost gun kits don't come with fully assembled frames 309 00:17:06,800 --> 00:17:10,359 Speaker 2: or receivers the core component of a firearm, so a 310 00:17:10,440 --> 00:17:13,359 Speaker 2: kit might require the purchaser to drill some hole so 311 00:17:13,400 --> 00:17:17,560 Speaker 2: that pins can be inserted. The challengers, the gun manufacturers 312 00:17:17,680 --> 00:17:21,280 Speaker 2: and gun right supporters, argue that's what puts the kits 313 00:17:21,400 --> 00:17:25,600 Speaker 2: outside the law, But their attorney, Peter Patterson, faced a 314 00:17:25,680 --> 00:17:30,120 Speaker 2: tough audience, especially from the Chief Justice, who didn't seem 315 00:17:30,160 --> 00:17:31,640 Speaker 2: to be buying that argument. 316 00:17:32,240 --> 00:17:36,600 Speaker 6: What is the purpose of selling a receiver without the 317 00:17:36,680 --> 00:17:37,919 Speaker 6: holes drilled in it? 318 00:17:39,119 --> 00:17:42,960 Speaker 10: Well, there are some individuals, and just like some individuals 319 00:17:43,040 --> 00:17:46,960 Speaker 10: enjoy like working on their car every weekend. Some individuals 320 00:17:47,000 --> 00:17:50,399 Speaker 10: want to construct their own firearms. So the purpose of 321 00:17:50,440 --> 00:17:52,639 Speaker 10: selling it is to allow I'm trying to go his 322 00:17:52,760 --> 00:17:56,320 Speaker 10: to assist and provide individuals with material which which they 323 00:17:56,320 --> 00:17:57,280 Speaker 10: can do that. 324 00:17:58,440 --> 00:18:02,440 Speaker 6: Well. I mean, drilling whole or two I would think 325 00:18:02,560 --> 00:18:05,480 Speaker 6: doesn't give the same sort of reward that you get 326 00:18:05,520 --> 00:18:07,400 Speaker 6: from working on your car on the weekends. 327 00:18:07,880 --> 00:18:10,680 Speaker 9: Yeah, so I thought that line of questioning from Justice 328 00:18:10,760 --> 00:18:13,600 Speaker 9: Roberts was really interesting. I think, especially if you're trying 329 00:18:13,640 --> 00:18:15,360 Speaker 9: to read the tea leaves and sort of think about 330 00:18:15,359 --> 00:18:17,239 Speaker 9: where some of these justices will vote, and I think 331 00:18:17,320 --> 00:18:19,440 Speaker 9: Roberts is a kind of important one in this case. 332 00:18:19,600 --> 00:18:22,000 Speaker 9: He asked straight up, like, what's the purpose of selling 333 00:18:22,000 --> 00:18:24,719 Speaker 9: a receiver without the holes drilled in it? And you know, 334 00:18:24,880 --> 00:18:27,280 Speaker 9: one answer from Patterson is, you know, people buy this 335 00:18:27,400 --> 00:18:29,240 Speaker 9: as a hobbyist, right in the same way you might 336 00:18:29,280 --> 00:18:32,560 Speaker 9: buy like a collection of unassembled parts to make it 337 00:18:32,600 --> 00:18:34,600 Speaker 9: like a little toy ship or model or something, or 338 00:18:34,640 --> 00:18:37,040 Speaker 9: working on a car and you enjoy it. And Justice 339 00:18:37,080 --> 00:18:39,040 Speaker 9: Roberts really did not seem to be buying that answer, right. 340 00:18:39,119 --> 00:18:41,480 Speaker 9: He said, you know, drilling a whole or two doesn't 341 00:18:41,520 --> 00:18:43,080 Speaker 9: really give you the kind of reward you get from 342 00:18:43,119 --> 00:18:45,320 Speaker 9: working on your car over the weekend. And I think 343 00:18:45,359 --> 00:18:47,479 Speaker 9: he's exactly right there. Right, So, like when you look 344 00:18:47,520 --> 00:18:49,880 Speaker 9: at how these guns are marketed as well, these parts 345 00:18:49,920 --> 00:18:52,320 Speaker 9: kits are not marketed for hobbyists, Like they're not described 346 00:18:52,359 --> 00:18:57,080 Speaker 9: by language like this is a really leisurely, enjoyable, difficult build, right, 347 00:18:57,080 --> 00:19:00,000 Speaker 9: They're marketed in terms like this is extremely fast and easy, 348 00:19:00,080 --> 00:19:03,080 Speaker 9: this is ridiculously easy, like this is dummy proof, like 349 00:19:03,160 --> 00:19:05,720 Speaker 9: you can do this really fast with no expertise. And 350 00:19:05,800 --> 00:19:09,040 Speaker 9: so I think that analogy that Patterson was trying to 351 00:19:09,119 --> 00:19:11,760 Speaker 9: draw between buyers of these kids and cobbyists just really 352 00:19:11,760 --> 00:19:13,600 Speaker 9: fell apart. And I think there's a great question from 353 00:19:13,680 --> 00:19:16,119 Speaker 9: Justice Roberts and also give some insight into where he 354 00:19:16,200 --> 00:19:17,240 Speaker 9: might stand on this case. 355 00:19:17,800 --> 00:19:21,000 Speaker 2: Is anyone arguing that this isn't a kit to assemble 356 00:19:21,359 --> 00:19:23,960 Speaker 2: a gun? What I'm getting at is, are they just 357 00:19:24,000 --> 00:19:25,440 Speaker 2: looking for a loophole here? 358 00:19:26,000 --> 00:19:28,720 Speaker 9: Yeah, So I think everyone agrees that these are kits 359 00:19:28,760 --> 00:19:31,760 Speaker 9: to be assembled into a gun. Vanderstock's argument is just 360 00:19:31,760 --> 00:19:33,280 Speaker 9: because of a kid that you could assemble into a 361 00:19:33,280 --> 00:19:35,600 Speaker 9: gun does not in fact make it a firearm. Within 362 00:19:35,600 --> 00:19:37,560 Speaker 9: the meaning of the statute, and the government sees the 363 00:19:37,600 --> 00:19:40,280 Speaker 9: statutory meeting a firearm to include these kits. You know, 364 00:19:40,760 --> 00:19:42,359 Speaker 9: interesting thing that came out to your question is there 365 00:19:42,400 --> 00:19:44,600 Speaker 9: was some discussion, a lot of discussion actually about kind 366 00:19:44,600 --> 00:19:46,240 Speaker 9: of where to draw the line. And I think even 367 00:19:46,240 --> 00:19:50,080 Speaker 9: Patterson conceded that a firearm that's disassembled as a firearm, 368 00:19:50,320 --> 00:19:52,399 Speaker 9: and so this question about like how close does it 369 00:19:52,440 --> 00:19:54,640 Speaker 9: have to be? And so you know, the government's argument is, 370 00:19:54,760 --> 00:19:57,440 Speaker 9: you know, once it's readily convertible, which these kids they 371 00:19:57,440 --> 00:19:59,920 Speaker 9: think are, that's good enough. And so the term fire 372 00:20:00,040 --> 00:20:03,040 Speaker 9: arms should encompass these kits which could be readily converted 373 00:20:03,160 --> 00:20:05,120 Speaker 9: to function as firearms very quickly. 374 00:20:05,720 --> 00:20:10,000 Speaker 2: Justice Gorsuch asked questions of a textualist nature. Where do 375 00:20:10,040 --> 00:20:13,480 Speaker 2: you think a textualist analysis gets you here? 376 00:20:14,119 --> 00:20:16,680 Speaker 9: So there's two questions in the case, right. So the 377 00:20:16,720 --> 00:20:19,120 Speaker 9: first one is about whether a parts kit falls under 378 00:20:19,160 --> 00:20:21,720 Speaker 9: the Part A of this statute. So any weapon which 379 00:20:21,760 --> 00:20:23,879 Speaker 9: will is designed to or may readily be converted to 380 00:20:23,920 --> 00:20:26,800 Speaker 9: expel a projectile by the action explosive. As a matter 381 00:20:26,840 --> 00:20:29,000 Speaker 9: of textualism, I think that question in this case is 382 00:20:29,040 --> 00:20:32,520 Speaker 9: extremely straightforward, that these parts kits fall under that language. 383 00:20:32,560 --> 00:20:34,879 Speaker 9: Just as part of the ordinary meaning of firearm. And 384 00:20:34,920 --> 00:20:38,160 Speaker 9: then you're underscored by the statutory language. The statute explicitly 385 00:20:38,200 --> 00:20:42,040 Speaker 9: contemplates things that could be readily converted to expel a projectile, 386 00:20:42,080 --> 00:20:44,720 Speaker 9: which just seems to be explicitly describing things like these 387 00:20:44,720 --> 00:20:47,399 Speaker 9: parts kits. And in question, the second question in the 388 00:20:47,440 --> 00:20:50,040 Speaker 9: case is about the meaning of the frame or receiver 389 00:20:50,160 --> 00:20:51,960 Speaker 9: of any such weapon in the statue, and many of 390 00:20:52,040 --> 00:20:55,000 Speaker 9: Justice Gorsuch's questions had to do with that second question. 391 00:20:55,280 --> 00:20:57,840 Speaker 9: So there the question is, if these companies sell an 392 00:20:57,880 --> 00:21:00,520 Speaker 9: eighty percent receiver, which, as the government says, you have 393 00:21:00,560 --> 00:21:02,639 Speaker 9: to drill a few holes in to convert this to 394 00:21:02,680 --> 00:21:06,480 Speaker 9: a one hundred percent functional receiver, does that count as 395 00:21:06,520 --> 00:21:09,040 Speaker 9: a frame or receiver within the meaning of the statute? 396 00:21:09,119 --> 00:21:10,960 Speaker 9: And so you know, Justice Gorsuch was asking a number 397 00:21:10,960 --> 00:21:13,760 Speaker 9: of kind of interesting questions about that, and going in 398 00:21:13,920 --> 00:21:16,040 Speaker 9: I would not have kind of, as a matter of politics, 399 00:21:16,280 --> 00:21:19,199 Speaker 9: expected Justice Gorsage to be favorable to the government in 400 00:21:19,240 --> 00:21:21,800 Speaker 9: this case, but his questions sort of suggested some openness 401 00:21:21,840 --> 00:21:24,000 Speaker 9: to following the text in this case to a place 402 00:21:24,040 --> 00:21:26,919 Speaker 9: that might not lead to the sort of conservative politics. 403 00:21:27,000 --> 00:21:28,919 Speaker 9: So he was asking, you know, when you look at 404 00:21:28,920 --> 00:21:31,560 Speaker 9: this statue and look at the context. Every other part 405 00:21:31,560 --> 00:21:35,119 Speaker 9: of the statute is contemplating convertible parts in addition to 406 00:21:35,160 --> 00:21:37,960 Speaker 9: fully functional parts, and so in that context, might we 407 00:21:38,040 --> 00:21:40,920 Speaker 9: understand frame and receiver just giving them their ordinary meaning 408 00:21:40,920 --> 00:21:43,520 Speaker 9: in that context to also include things that are extremely 409 00:21:43,560 --> 00:21:46,159 Speaker 9: close to functional and frame and receivers. I thought it 410 00:21:46,160 --> 00:21:48,439 Speaker 9: was a really interesting kind of exchange between Gorsuch and 411 00:21:48,440 --> 00:21:50,280 Speaker 9: the Swisser General from that point, So, the. 412 00:21:50,240 --> 00:21:55,760 Speaker 2: Solicitor General mentioned several times the explosion in crimes committed 413 00:21:55,840 --> 00:21:59,920 Speaker 2: using ghost guns and that the new regulations are crucial 414 00:22:00,240 --> 00:22:03,359 Speaker 2: for solving gun crimes. And also you had a group 415 00:22:03,400 --> 00:22:07,280 Speaker 2: of twenty major cities filing with the Supreme Court saying 416 00:22:07,320 --> 00:22:10,560 Speaker 2: that the regulation appears to have been effective reducing the 417 00:22:10,640 --> 00:22:13,639 Speaker 2: use of ghost guns. Where does that fit into the 418 00:22:13,680 --> 00:22:18,760 Speaker 2: Supreme Court's analysis, especially if it's a textualist analysis. 419 00:22:19,160 --> 00:22:22,719 Speaker 9: That's interesting if you think about textualism sort of as stated, 420 00:22:22,760 --> 00:22:25,200 Speaker 9: with the idea that the court will resolve this question 421 00:22:25,400 --> 00:22:28,000 Speaker 9: just by looking at the statutory text and giving that 422 00:22:28,119 --> 00:22:30,159 Speaker 9: language the meaning it would have in the eyes of 423 00:22:30,200 --> 00:22:33,240 Speaker 9: an ordinary reader, you might think those conserations about the 424 00:22:33,240 --> 00:22:36,000 Speaker 9: practical consequences are irrelevant, Like, that's exactly the sort of 425 00:22:36,000 --> 00:22:39,720 Speaker 9: political consequential decisions that they're trying to screen off with textualism. 426 00:22:40,000 --> 00:22:42,679 Speaker 9: So what's interesting is if that's right, looks like actually 427 00:22:42,680 --> 00:22:44,760 Speaker 9: a majority of the justices are inclined to read the 428 00:22:44,800 --> 00:22:46,720 Speaker 9: text in line with the government. That would be the 429 00:22:46,760 --> 00:22:51,400 Speaker 9: three Democratic appointees and then potentially Roberts, Kavanaugh, Barrett Gorsich. 430 00:22:51,520 --> 00:22:55,399 Speaker 9: I think Roberts in particular was responsive to some of 431 00:22:55,440 --> 00:22:58,879 Speaker 9: the government's arguments about the practical consequences kind of over 432 00:22:58,920 --> 00:23:01,920 Speaker 9: and above the text. So, currently, federal law prohibits selling 433 00:23:01,920 --> 00:23:04,920 Speaker 9: firearms to twenty one year olds, It requires backgrounds, check, serialization, 434 00:23:05,000 --> 00:23:07,960 Speaker 9: all these requirements, and if the court decides that these 435 00:23:08,040 --> 00:23:11,320 Speaker 9: kits are not firearms, those requirements will not apply at 436 00:23:11,359 --> 00:23:14,280 Speaker 9: the federal level. And so there's a real concern right that, again, 437 00:23:14,320 --> 00:23:16,320 Speaker 9: if people who are buying these kits are not hobbyists 438 00:23:16,320 --> 00:23:18,560 Speaker 9: but rather people who just want a firearm, there's a 439 00:23:18,560 --> 00:23:21,720 Speaker 9: real circumvention concern that basically all of the law that 440 00:23:21,760 --> 00:23:26,040 Speaker 9: would apply to firearm regulation effectively is meaningless because someone 441 00:23:26,080 --> 00:23:27,639 Speaker 9: could just get the ghost gun and build their own 442 00:23:27,720 --> 00:23:30,240 Speaker 9: kit in twenty minutes or however long it takes, and so, 443 00:23:30,359 --> 00:23:32,359 Speaker 9: you know, some of Robert's questions, I think we're very 444 00:23:32,480 --> 00:23:35,080 Speaker 9: much kind of responsive to that set of concerns and 445 00:23:35,119 --> 00:23:37,560 Speaker 9: the principle that if you read the statute in that way, 446 00:23:37,560 --> 00:23:40,280 Speaker 9: the way Vnderstock wants it to, you'll render a big 447 00:23:40,400 --> 00:23:45,119 Speaker 9: chunk of federal law meaningless. And so Congress was really underscoring. 448 00:23:45,520 --> 00:23:47,680 Speaker 2: Just a few months ago, the Supreme Court, in a 449 00:23:47,720 --> 00:23:52,080 Speaker 2: six to three decision, tossed out a ban on bump stocks. 450 00:23:52,560 --> 00:23:57,280 Speaker 2: That Cargol case was also a statutory interpretation case. Does 451 00:23:57,359 --> 00:24:02,200 Speaker 2: that case have implications for this Vounderstock case? 452 00:24:03,040 --> 00:24:05,879 Speaker 9: That case it actually concerned a different firearm statue, So 453 00:24:06,240 --> 00:24:09,040 Speaker 9: it concerns the definition of machine gun. Wherever you come 454 00:24:09,040 --> 00:24:11,240 Speaker 9: out on Garland versus Cargo, whether it's sort of easy 455 00:24:11,359 --> 00:24:13,879 Speaker 9: or difficult case textually, the case that they heard dander 456 00:24:13,920 --> 00:24:16,200 Speaker 9: Stock as a matter of language is like just much 457 00:24:16,240 --> 00:24:19,399 Speaker 9: more straightforward, you know. I think it's reassuring actually that 458 00:24:19,440 --> 00:24:22,280 Speaker 9: the Court's oral argument, many of the questions, especially from 459 00:24:22,280 --> 00:24:25,000 Speaker 9: Barrett and Roberts and course such in Kavandah, really seem 460 00:24:25,040 --> 00:24:27,880 Speaker 9: to recognize that fact these gun part kits are firearms 461 00:24:27,920 --> 00:24:30,960 Speaker 9: in ordinary English. And then the statute explicitly talks about 462 00:24:31,040 --> 00:24:33,719 Speaker 9: weapons that could be readily converted to expel a projectile, 463 00:24:33,920 --> 00:24:36,320 Speaker 9: which you know also really underscores that these sort of 464 00:24:36,400 --> 00:24:38,679 Speaker 9: kits are included, and the context indicates the same with 465 00:24:38,720 --> 00:24:41,320 Speaker 9: the frame of receivers. And so for this oral argument, 466 00:24:41,359 --> 00:24:42,960 Speaker 9: I think if you think the court is primarily a 467 00:24:42,960 --> 00:24:45,920 Speaker 9: political actor, you see the bump stock case, you think 468 00:24:45,960 --> 00:24:47,199 Speaker 9: this is going to come out the same way. Six 469 00:24:47,280 --> 00:24:49,520 Speaker 9: y three after the oral argument, I've got a little 470 00:24:49,560 --> 00:24:51,520 Speaker 9: more hope that the Court's going to follow the text, 471 00:24:51,520 --> 00:24:52,680 Speaker 9: although time will tell. 472 00:24:53,000 --> 00:24:57,480 Speaker 2: Thanks Kevin. That's Georgetown Law professor Kevin Tobia. I note 473 00:24:57,640 --> 00:25:01,719 Speaker 2: Michael Bloomberg, the founder majority owners of Bloomberg LP, the 474 00:25:01,760 --> 00:25:05,159 Speaker 2: parent company of Bloomberg Radio, is a donor to groups 475 00:25:05,160 --> 00:25:09,120 Speaker 2: that support gun control, including Every Town for Gun Safety. 476 00:25:09,760 --> 00:25:12,680 Speaker 2: You're listening to a special holiday edition of the Bloomberg 477 00:25:12,760 --> 00:25:16,919 Speaker 2: Law Show. Up next a death penalty case that finds 478 00:25:16,960 --> 00:25:21,240 Speaker 2: the State of Oklahoma siding with a defendant on death row. 479 00:25:21,840 --> 00:25:24,320 Speaker 2: Remember you can always at the latest legal news by 480 00:25:24,359 --> 00:25:27,560 Speaker 2: listening to our Bloomberg Law podcast. You can find them 481 00:25:27,560 --> 00:25:31,719 Speaker 2: on Apple Podcasts, Spotify, and at Bloomberg dot com Slash 482 00:25:31,800 --> 00:25:37,480 Speaker 2: podcast Slash Law. I'm June Grosso and you're listening to Bloomberg. 483 00:25:47,440 --> 00:25:52,240 Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio. 484 00:25:53,880 --> 00:25:54,360 Speaker 5: This is a. 485 00:25:54,280 --> 00:25:58,200 Speaker 2: Special holiday edition of the Bloomberg Law Show. I'm June Grosso. 486 00:25:58,600 --> 00:26:01,480 Speaker 2: We're looking at some import and Supreme Court case. Is 487 00:26:01,560 --> 00:26:02,360 Speaker 2: this term? 488 00:26:02,640 --> 00:26:07,840 Speaker 11: Attorney General Drummond did not confess error here lightly. Indeed, 489 00:26:07,880 --> 00:26:12,879 Speaker 11: he continues to defend multiple capital convictions and opposed mister 490 00:26:12,960 --> 00:26:18,160 Speaker 11: Glossop's pen ultimate sert petition, But after commissioning an independent review, 491 00:26:18,440 --> 00:26:22,640 Speaker 11: he reluctantly reached the conclusion that Brady and Napu violations 492 00:26:22,920 --> 00:26:27,480 Speaker 11: by the state's own prosecutors obligated him to confess error 493 00:26:27,520 --> 00:26:29,400 Speaker 11: and waive procedural obstacles. 494 00:26:29,680 --> 00:26:33,280 Speaker 2: It's a very unusual death penalty case where the State 495 00:26:33,320 --> 00:26:36,760 Speaker 2: of Oklahoma is coming before the Supreme Court on the 496 00:26:36,800 --> 00:26:40,399 Speaker 2: same side as a defendant on death row, arguing that 497 00:26:40,520 --> 00:26:45,200 Speaker 2: Richard Glossop's nineteen ninety seven murder conviction and capital sentence 498 00:26:45,400 --> 00:26:50,159 Speaker 2: should be undone due to prosecutorial misconduct. Former US Solicitor 499 00:26:50,240 --> 00:26:54,840 Speaker 2: General Paul Clement argued for the Oklahoma ag gentner Drummond, 500 00:26:54,920 --> 00:26:58,919 Speaker 2: who had made an extraordinary concession known as a confession 501 00:26:58,960 --> 00:27:02,440 Speaker 2: of error admitted that the prosecutor in the case withheld 502 00:27:02,520 --> 00:27:06,520 Speaker 2: evidence from the defense and elicited false testimony from the 503 00:27:06,560 --> 00:27:11,040 Speaker 2: state's star witness at trial. The prosecutor's handwritten notes, which 504 00:27:11,080 --> 00:27:14,679 Speaker 2: were unearthed in twenty twenty two, revealed that the state's 505 00:27:14,760 --> 00:27:18,639 Speaker 2: star witness had been diagnosed with bipolar disorder and was 506 00:27:18,680 --> 00:27:22,439 Speaker 2: being treated by a psychiatrist with lithium. Several of the 507 00:27:22,720 --> 00:27:26,639 Speaker 2: justices seem to be divided about how important that evidence 508 00:27:26,760 --> 00:27:29,399 Speaker 2: would have been to the jury. Here are Chief Justice 509 00:27:29,480 --> 00:27:33,360 Speaker 2: John Roberts and Justice is Elena Kagan and Brett Kavanaugh. 510 00:27:33,800 --> 00:27:36,760 Speaker 6: Because the jury knew about the lithium, and what they 511 00:27:36,800 --> 00:27:39,399 Speaker 6: didn't know is that it was prescribed by a psychiatrist, 512 00:27:40,440 --> 00:27:42,520 Speaker 6: do you really think it would make that much of 513 00:27:42,560 --> 00:27:43,679 Speaker 6: a difference to the jury. 514 00:27:45,280 --> 00:27:48,199 Speaker 4: That seems pretty material to me. I mean, it's just 515 00:27:48,359 --> 00:27:51,200 Speaker 4: your one witness has been exposed as a liar. 516 00:27:52,720 --> 00:27:55,119 Speaker 5: Would have made the conviction more likely if the jury 517 00:27:55,160 --> 00:27:58,320 Speaker 5: knows that not only does he have an incentive to lie, 518 00:27:58,320 --> 00:28:01,840 Speaker 5: that he's lied on the stand in that he's bipolar, 519 00:28:02,160 --> 00:28:07,600 Speaker 5: therefore creating all sorts of avenues for questioning his credibility. 520 00:28:07,800 --> 00:28:11,840 Speaker 2: Gossip has faced nine execution dates and eaten his last 521 00:28:11,960 --> 00:28:15,400 Speaker 2: meal three times. In is more than twenty five years 522 00:28:15,440 --> 00:28:18,840 Speaker 2: on death row. Joining me is Cliff Sloan, a professor 523 00:28:18,880 --> 00:28:22,960 Speaker 2: at Georgetown Law who's argued several cases at the Supreme Court, 524 00:28:23,160 --> 00:28:26,120 Speaker 2: including a victory in a case involving the death penalty. 525 00:28:26,520 --> 00:28:29,680 Speaker 2: Tell us about the evidence the Oklahoma ag found a 526 00:28:29,720 --> 00:28:33,840 Speaker 2: few years ago about the state star witness who testified 527 00:28:33,880 --> 00:28:38,280 Speaker 2: against Glossop in exchange for not getting the death penalty himself. 528 00:28:38,560 --> 00:28:46,240 Speaker 12: So what was discovered was very important prosecutorial notes establishing 529 00:28:46,600 --> 00:28:51,000 Speaker 12: that the main witness, and really the only witness tying 530 00:28:51,200 --> 00:28:56,200 Speaker 12: Gossop to the murder, had a bipolar disorder and had 531 00:28:56,280 --> 00:29:00,280 Speaker 12: received lithium under a prescription from a psychiatrist. And this 532 00:29:00,440 --> 00:29:06,240 Speaker 12: was directly contrary to this witness's testimony at the trial 533 00:29:06,640 --> 00:29:09,920 Speaker 12: where he said he had received lithium for a cold, 534 00:29:09,960 --> 00:29:12,959 Speaker 12: and he flatly said he had never seen a psychiatrist, 535 00:29:13,280 --> 00:29:16,880 Speaker 12: And right there in the notes of the prosecutor or 536 00:29:16,960 --> 00:29:21,400 Speaker 12: notes establishing that it was from a psychiatrist. And also 537 00:29:21,880 --> 00:29:26,440 Speaker 12: there was separately a medical record establishing that the psychiatrist 538 00:29:26,480 --> 00:29:30,120 Speaker 12: had prescribed the lithium for the bipolar disorder. This would 539 00:29:30,120 --> 00:29:33,680 Speaker 12: have been extremely important to the jury both in its 540 00:29:33,720 --> 00:29:37,320 Speaker 12: consideration of guilt or innocence and in his consideration of 541 00:29:37,400 --> 00:29:41,800 Speaker 12: the death penalty. Because the witness was really the entire 542 00:29:41,960 --> 00:29:46,800 Speaker 12: case against mister Glossop. It's undisputed mister Glossops had no 543 00:29:47,040 --> 00:29:51,360 Speaker 12: role in the actual killing of the victim himself. The 544 00:29:51,360 --> 00:29:54,760 Speaker 12: theory of the state was that he hired this other man, 545 00:29:54,960 --> 00:29:59,080 Speaker 12: Sneed to do the killing, and so Sneed's testimony was 546 00:29:59,120 --> 00:30:02,840 Speaker 12: the only thing that linked Glossop to the killing. 547 00:30:03,200 --> 00:30:07,280 Speaker 2: What's so unusual in this case is that Oklahoma's age 548 00:30:07,640 --> 00:30:11,640 Speaker 2: is arguing along with Glossop that his murder conviction should 549 00:30:11,640 --> 00:30:12,600 Speaker 2: be set aside. 550 00:30:12,760 --> 00:30:17,000 Speaker 12: The Republican Attorney General of Oklahoma, who generally is very 551 00:30:17,080 --> 00:30:20,840 Speaker 12: much in favor of the death penalty, has really acted 552 00:30:21,000 --> 00:30:25,560 Speaker 12: in the finest traditions of justice here because he commissioned 553 00:30:25,560 --> 00:30:31,120 Speaker 12: an independent investigation which concluded that mister Glossop's conviction and 554 00:30:31,200 --> 00:30:36,160 Speaker 12: his death penalty cannot stand because of this false testimony 555 00:30:36,520 --> 00:30:41,960 Speaker 12: and because of the failure to turn over important evidence 556 00:30:42,040 --> 00:30:45,000 Speaker 12: to the defense, which is a constitutional violation, and so 557 00:30:45,080 --> 00:30:48,640 Speaker 12: he concluded in good conscience he had to stand up 558 00:30:48,720 --> 00:30:52,000 Speaker 12: and say that the conviction should be set aside and 559 00:30:52,040 --> 00:30:54,760 Speaker 12: the death penalty should be set aside. And there also 560 00:30:54,920 --> 00:31:00,240 Speaker 12: was another independent investigation commissioned by the Republican state legislator 561 00:31:00,280 --> 00:31:03,800 Speaker 12: which reached the same conclusion. But what is really striking 562 00:31:03,880 --> 00:31:09,040 Speaker 12: here is that the Oklahoma Court flatly rejected the very 563 00:31:09,200 --> 00:31:13,640 Speaker 12: considered decision of the Oklahoma Attorney General that there needs 564 00:31:13,680 --> 00:31:16,000 Speaker 12: to be a new trial and that the death sentence 565 00:31:16,160 --> 00:31:17,000 Speaker 12: cannot stand. 566 00:31:17,400 --> 00:31:20,800 Speaker 2: And at the oral arguments, a lot of time was 567 00:31:20,840 --> 00:31:26,280 Speaker 2: spent on the procedural question whether the state court's decision 568 00:31:26,440 --> 00:31:31,000 Speaker 2: rested on independent state grounds, in which case the Supreme 569 00:31:31,040 --> 00:31:36,400 Speaker 2: Court couldn't review the case. Something Justice Samuel Alito kept pressing. 570 00:31:36,280 --> 00:31:40,080 Speaker 12: Well, you know, that's the issue that's presented about whether 571 00:31:40,240 --> 00:31:45,120 Speaker 12: there's a threshold procedural problem that is based in state 572 00:31:45,240 --> 00:31:49,160 Speaker 12: law and that would prevent the Supreme Court from reaching 573 00:31:49,360 --> 00:31:53,960 Speaker 12: the federal constitutional issues. So it's an important threshold issue. 574 00:31:53,960 --> 00:31:58,040 Speaker 12: But you had other justices very much emphasizing that they 575 00:31:58,080 --> 00:32:00,760 Speaker 12: don't think that is a serious problem. That they think 576 00:32:00,840 --> 00:32:05,520 Speaker 12: it's clear that the Oklahoma Court rested its decision on 577 00:32:05,600 --> 00:32:10,600 Speaker 12: an erroneous analysis of the federal constitutional claims. That the 578 00:32:10,640 --> 00:32:13,800 Speaker 12: state procedural reference was wrapped up in that, and you 579 00:32:13,880 --> 00:32:17,440 Speaker 12: even had Justice Kagan asking a question where she suggested 580 00:32:17,480 --> 00:32:21,920 Speaker 12: that the reference to the state procedural issue was simply 581 00:32:22,000 --> 00:32:25,920 Speaker 12: because the Oklahoma Court was throwing in the entire kitchen sink, 582 00:32:26,280 --> 00:32:28,160 Speaker 12: and so it was just mixed up with a lot 583 00:32:28,200 --> 00:32:31,400 Speaker 12: of other things. It had no independent basis. And you 584 00:32:31,480 --> 00:32:35,360 Speaker 12: also had a number of the justices, including Justices Kagan, 585 00:32:35,480 --> 00:32:40,880 Speaker 12: so the mayor and Jackson emphasizing that this supposed independent 586 00:32:41,080 --> 00:32:46,040 Speaker 12: rule that the Oklahoma Court was enforcing had never been 587 00:32:46,200 --> 00:32:49,840 Speaker 12: enforced in this kind of context in any case other 588 00:32:50,000 --> 00:32:54,720 Speaker 12: than one involving Richard Colossa, which added to their view. 589 00:32:55,120 --> 00:32:58,360 Speaker 12: But this is something that was a makewight that Oklahoma 590 00:32:58,840 --> 00:33:01,760 Speaker 12: was just throwing in and is not a bar to 591 00:33:02,040 --> 00:33:03,120 Speaker 12: Supreme Court review. 592 00:33:03,480 --> 00:33:07,000 Speaker 2: So Glossop has a claim of a Brady violation where 593 00:33:07,000 --> 00:33:10,520 Speaker 2: the prosecutor didn't turn over evidence, and also a NAPU 594 00:33:10,640 --> 00:33:15,880 Speaker 2: violation where the prosecutor presented false testimony and didn't correct 595 00:33:15,920 --> 00:33:18,680 Speaker 2: it at trial. Here's Justice Kagan on that a. 596 00:33:18,720 --> 00:33:23,120 Speaker 4: Napoo violation is a pretty dramatic thing when a prosecutor says, leg, 597 00:33:23,160 --> 00:33:27,040 Speaker 4: we'll stop there, that was a lie under NAPO. 598 00:33:27,240 --> 00:33:30,680 Speaker 12: A prosecutor, of course cannot put on perjured testimony, and 599 00:33:30,800 --> 00:33:34,600 Speaker 12: if the prosecutor learns that the testimony has been perjured, 600 00:33:34,640 --> 00:33:38,680 Speaker 12: the prosecutor has to corrected or notified the defense about 601 00:33:38,720 --> 00:33:43,240 Speaker 12: it and hear. What the independent investigations have found is 602 00:33:43,280 --> 00:33:48,160 Speaker 12: that the prosecutor put out perjured testimony, never corrected it 603 00:33:48,400 --> 00:33:52,480 Speaker 12: to the contrary, took efforts to protect it. That's a 604 00:33:52,640 --> 00:33:57,080 Speaker 12: very very serious constitutional violation. It goes to the heart 605 00:33:57,160 --> 00:34:00,480 Speaker 12: of what the criminal justice system should be about. And 606 00:34:00,680 --> 00:34:04,640 Speaker 12: you know, some of the justices were very much bothered 607 00:34:04,720 --> 00:34:08,360 Speaker 12: by this violation and seemed to think that it's open 608 00:34:08,520 --> 00:34:14,160 Speaker 12: and shut. Other justices seemed more skeptical about whether it 609 00:34:14,400 --> 00:34:19,759 Speaker 12: was as clear a violation and also how significant it 610 00:34:19,800 --> 00:34:22,839 Speaker 12: would have been, you know, in terms of materiality, which 611 00:34:22,880 --> 00:34:25,760 Speaker 12: is important for NAPO, and whether it would have made 612 00:34:25,840 --> 00:34:28,520 Speaker 12: a difference or not. So I think there's clearly a 613 00:34:28,600 --> 00:34:31,880 Speaker 12: split among the justices both about the procedure and the 614 00:34:31,920 --> 00:34:34,160 Speaker 12: substance in terms of how they're viewing it. 615 00:34:34,160 --> 00:34:37,640 Speaker 2: It's always hard to read through oral arguments what's going 616 00:34:37,680 --> 00:34:41,040 Speaker 2: to happen, and particularly in this case where a lot 617 00:34:41,080 --> 00:34:43,680 Speaker 2: of the justices said very little, Do you have any 618 00:34:43,680 --> 00:34:48,000 Speaker 2: idea of what the lineup might be from these arguments, well. 619 00:34:47,640 --> 00:34:52,000 Speaker 12: You know, with the usual important caveat that is very 620 00:34:52,000 --> 00:34:56,720 Speaker 12: difficult to predict. Here's what I took away from the argument. 621 00:34:56,760 --> 00:34:59,160 Speaker 12: And by the way, Justice course it was not participating, 622 00:34:59,360 --> 00:35:02,880 Speaker 12: but it as from the argument that Justice Alito and 623 00:35:03,080 --> 00:35:08,920 Speaker 12: Justice Thomas were very hostile to glossop claims into the 624 00:35:08,920 --> 00:35:12,760 Speaker 12: position of the Oklahoma Attorney General and very skeptical of it. 625 00:35:12,760 --> 00:35:17,400 Speaker 12: It seems that Justices Soda, Mayor, Kagan, and Jackson were 626 00:35:17,840 --> 00:35:22,800 Speaker 12: very sympathetic to the positions of Glossop and the Oklahoma 627 00:35:22,840 --> 00:35:27,400 Speaker 12: Attorney General. And so that leaves Chief Justice Roberts, Justice Kavanaugh, 628 00:35:27,800 --> 00:35:31,160 Speaker 12: and Justice Barrett. And I think it was difficult to 629 00:35:31,239 --> 00:35:35,160 Speaker 12: tell from the questions exactly where those three are, and 630 00:35:35,200 --> 00:35:37,440 Speaker 12: I think that you know, that's going to be the 631 00:35:37,440 --> 00:35:39,600 Speaker 12: ballgame where those three justices are. 632 00:35:39,960 --> 00:35:42,640 Speaker 2: There did seem to be some support for a sort 633 00:35:42,680 --> 00:35:46,440 Speaker 2: of middle position remanding the case back to the State 634 00:35:46,560 --> 00:35:48,320 Speaker 2: Court for an evidentiary hearing. 635 00:35:48,800 --> 00:35:52,080 Speaker 12: A couple of the justices were suggesting that perhaps what 636 00:35:52,160 --> 00:35:54,840 Speaker 12: should happen is that it should be sent back for 637 00:35:55,040 --> 00:35:59,960 Speaker 12: additional facts finding about exactly what happened and how important 638 00:36:00,120 --> 00:36:03,160 Speaker 12: it was. Some of the Justices were very explicitly saying 639 00:36:03,360 --> 00:36:05,759 Speaker 12: that they didn't think that was necessary in light of 640 00:36:05,800 --> 00:36:08,239 Speaker 12: the record and how clear the violations were. 641 00:36:08,760 --> 00:36:12,280 Speaker 2: The Supreme Court rarely grants relief in death penalty cases. 642 00:36:12,440 --> 00:36:15,759 Speaker 2: Tell us about the Roberts Court's history in this area. 643 00:36:15,800 --> 00:36:19,440 Speaker 12: Well, I think that the way in general that the 644 00:36:19,880 --> 00:36:23,960 Speaker 12: current Supreme Court is approaching death penalty cases is very, 645 00:36:24,080 --> 00:36:29,239 Speaker 12: very troubling. It's very very difficult for capital defendants. The 646 00:36:29,280 --> 00:36:33,719 Speaker 12: Court is creating all sorts of new procedural obstacles, and 647 00:36:33,760 --> 00:36:38,799 Speaker 12: it's also as a general matter, being very unsympathetic to 648 00:36:39,280 --> 00:36:42,799 Speaker 12: claims of capital defendants. Now that's not you know, one 649 00:36:42,840 --> 00:36:44,920 Speaker 12: hundred percent of the time. There have been, you know, 650 00:36:44,960 --> 00:36:47,359 Speaker 12: a few cases in recent years where the Court has 651 00:36:47,440 --> 00:36:52,120 Speaker 12: rules for capital defendants, but overwhelmingly, the Court is dramatically 652 00:36:52,200 --> 00:36:55,480 Speaker 12: tilting the playing field in favor of the death penalty. 653 00:36:56,040 --> 00:36:59,600 Speaker 12: And you know, the class of case really illustrates three 654 00:37:00,040 --> 00:37:04,239 Speaker 12: of the most troubling characteristics of the death penalty in 655 00:37:04,280 --> 00:37:08,200 Speaker 12: the United States today. One of them is the prevalence 656 00:37:08,239 --> 00:37:13,680 Speaker 12: of cases of innocence and exoneration of people on death row. 657 00:37:14,080 --> 00:37:17,880 Speaker 12: There have been two hundred people on death row who 658 00:37:17,960 --> 00:37:22,040 Speaker 12: have been found to be innocent and who have been exonerated, 659 00:37:22,160 --> 00:37:27,440 Speaker 12: a truly shocking and alarming fact. The second problem that 660 00:37:27,560 --> 00:37:33,279 Speaker 12: it highlights is misconduct by prosecutors. In seventy percent of 661 00:37:33,320 --> 00:37:36,640 Speaker 12: the cases where there has been found to be innocence 662 00:37:36,640 --> 00:37:39,960 Speaker 12: of people on death row, there has been misconduct by 663 00:37:40,320 --> 00:37:44,120 Speaker 12: prosecutors exactly this kind of thing, putting on false testimony, 664 00:37:44,520 --> 00:37:48,359 Speaker 12: not correcting it, not turning over very important evidence. And 665 00:37:48,400 --> 00:37:55,040 Speaker 12: the third, very disturbing problem is when courts don't accept prosecutors' 666 00:37:55,080 --> 00:37:59,800 Speaker 12: conclusions that a conviction and a death penalty cannot stand. 667 00:38:00,200 --> 00:38:04,600 Speaker 12: That happened recently in the execution of Marcellus Williams, and 668 00:38:04,719 --> 00:38:06,560 Speaker 12: we're seeing it in the Glossop case. 669 00:38:06,800 --> 00:38:09,640 Speaker 2: And in Glossop's case, he can only afford to lose 670 00:38:09,840 --> 00:38:13,600 Speaker 2: three votes because with eight justices hearing the case, a 671 00:38:13,680 --> 00:38:17,160 Speaker 2: four to four vote would affirm the Oklahoma courts ruling 672 00:38:17,320 --> 00:38:19,720 Speaker 2: against him. Thanks so much for being on the show. 673 00:38:19,920 --> 00:38:23,439 Speaker 2: That's Professor Cliff Sloan of Georgetown Law, and that does 674 00:38:23,480 --> 00:38:26,920 Speaker 2: it for this special holiday edition of The Bloomberg Law Show. 675 00:38:27,320 --> 00:38:30,640 Speaker 2: I'm June Brosso. Stay with us. Today's top stories and 676 00:38:30,800 --> 00:38:35,760 Speaker 2: global business headlines are coming up right now.