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Speaker 1: Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2: Welcome to a special Holiday edition of the Bloomberg Law Show.
Speaker 2: I'm June Grosso. Ahead in this hour, we'll take a
Speaker 2: look back at some crucial Supreme Court arguments this term.
Speaker 2: The justices considered regulations on ghost guns just months after
Speaker 2: all landmark decision on bump stocks. Will also look at
Speaker 2: a unique death penalty appeal where the state of Oklahoma
Speaker 2: is siding with the death row inmate. But first, the
Speaker 2: liberal city of San Francisco found itself in an unusual
Speaker 2: position at the Supreme Court, taking on the Environmental Protection
Speaker 2: Agency over sewage discharge into the Pacific Ocean. With a
Speaker 2: ten billion dollar fine on the line. The city's attorney,
Speaker 2: Tara Steely, argued that the regulations were too vague.
Speaker 3: They might as well have said, do not violate the
Speaker 3: Clean Water Act. It doesn't tell us anything.
Speaker 2: But the liberal justice is pushed back on San Francisco's arguments.
Speaker 2: Here are Justices Elena Kagan and Sonya So to Mayor.
Speaker 4: It's prescribing that you have to meet water quality standards, Like,
Speaker 4: how more clearly could you meet this statutory language than that?
Speaker 4: What they're asking you is to become responsible doing what's necessary.
Speaker 2: The ideological divide was apparent, with conservative justices expressing concerns
Speaker 2: about the fairness of the city facing billions in fines
Speaker 2: without knowing what its obligations are under a vague permit.
Speaker 2: Just as Brett Cavanaugh challenged the EPA's attorney, Frederick lew.
Speaker 5: You're suing San Francisco separately for a lot of money
Speaker 5: based on a standard that they had no idea. You know,
Speaker 5: that's the theory. That's the theory in your position, your
Speaker 5: position would allow that. I don't, yes, it will. I
Speaker 5: mean the base I complaint is exhibit A for what
Speaker 5: you said is not going to be true.
Speaker 2: And Chief Justice John Roberts pointed out that Congress had
Speaker 2: updated the law to address the kind of concerns that
Speaker 2: San Francisco was raising about a lack of clarity.
Speaker 6: The battle days is when we had water quality standards, right,
Speaker 6: people didn't know what they were supposed to do, how
Speaker 6: it was going to be allocated, sort of a problem
Speaker 6: of the commons, and they put in the permit system.
Speaker 6: And I think the danger here is that you're going
Speaker 6: back to the other system.
Speaker 2: Joining me is former US Solicitor General Gregory garr, a
Speaker 2: partner at Latham and Watkins. Great tell us about the
Speaker 2: city's argument here.
Speaker 7: So, the City of San Francisco is concerned about the
Speaker 7: lack of fair notice that they have in terms of
Speaker 7: how to comply with the Clean Water Act as to
Speaker 7: the sewage discharge that's going into the Pacific Ocean. And
Speaker 7: their argument is that the Clean Water Act obligates the
Speaker 7: EPA to set specific effluent limitations on the amount of
Speaker 7: pollutants coming out of pink sources. Discharges like the pipes
Speaker 7: going into the ocean, and that instead, what the EPA
Speaker 7: has done here is just issued these vague water quality standards.
Speaker 7: You have to be sure that the water is a
Speaker 7: particular color where the sewage is coming out, or you know,
Speaker 7: NEETs other criteria. And the city's argument is that, well,
Speaker 7: they don't know how to meet those criteria, there's other
Speaker 7: sources coming in, who's responsible for what? And you know,
Speaker 7: all this is against the backtop of a suit brought
Speaker 7: by the EPA in which they're seeking, according to the city,
Speaker 7: literally ten billion dollars in penalties. So the city feels
Speaker 7: as though they lacked the fair notice that they were
Speaker 7: entitled to under the Act up front in terms of
Speaker 7: what discharges could go into the ocean.
Speaker 2: Did it seem like the three liberal justices were pushing
Speaker 2: back on the city's argument.
Speaker 7: Definitely. Justice Kagan, Justice Sodamor, and Justice Jackson all leaned
Speaker 7: in hard against the city on their arguments, and they
Speaker 7: took a number of different tacks. Most importantly, I think
Speaker 7: they really wanted to focus the city on the text
Speaker 7: of the Act and put the city on its heels
Speaker 7: in terms of identifying a provision of the Act that
Speaker 7: stripped EPA of the authority to issue these sorts of
Speaker 7: broader water quality standards and justice Jackson in particular went
Speaker 7: into the language in the Act which says that the
Speaker 7: EPA could adopt quote any more stringent limitations end quote,
Speaker 7: and argued that, you know, the city was wrong in
Speaker 7: saying that the limitations were limited to effluent limitations coming out.
Speaker 7: The justices also had hard questions for the cities about
Speaker 7: the environmental impact potential environmental impacts of the city's position,
Speaker 7: which at times got pretty gross in terms of talking
Speaker 7: about floating toilet paper and the like. But the city
Speaker 7: definitely based a tough crowd from the more liberal end.
Speaker 2: Of the court, and the EPA's attorney faced a tough
Speaker 2: crowd from the more conservative justices. Tell us about his argument.
Speaker 7: So his argument was that number one, that the statute
Speaker 7: did confer this more broader authority on EPA, and that
Speaker 7: it could be exercise in particular instances more limited circumstances,
Speaker 7: and that here he claimed that the problem really was
Speaker 7: one of San Francisco's own creation, and that he claimed
Speaker 7: that EPA had asked for specific data from the city
Speaker 7: about its discharges and the like, and the city never
Speaker 7: provided it, and so according to the EPA attorney, they
Speaker 7: had no choice but to issue these more general water
Speaker 7: quality standards. And you know, really one of the more
Speaker 7: interesting dynamics of this oral argument is this was the
Speaker 7: City of San Francisco, one of the more progressive jurisdictions
Speaker 7: in the country, facing off against the Biden administration EPA,
Speaker 7: and it was clear that there was no love loss
Speaker 7: between them, at least as to this particular issue.
Speaker 4: Yeah.
Speaker 2: Well, this is a case where the city's Board of
Speaker 2: supervisors voted eight to two to urge the city officials
Speaker 2: to resolve the suit quickly, there being a concern that
Speaker 2: a Supreme Court ruling in the city's favor could have
Speaker 2: sweeping implications for curtailing water pollution definitely.
Speaker 7: And it's unclear how far the court would go even
Speaker 7: if it ruled for the city in this case. You know,
Speaker 7: there were justices sort of probing more narrow rulings, and
Speaker 7: I think even if the court ruled in favor of
Speaker 7: the city, it probably would you try to limit the
Speaker 7: reach of its ruling. But you know, the basic question
Speaker 7: on the table is whether ETA has the authority to
Speaker 7: issue these broader water quality standards, which is something that
Speaker 7: is the Chief Justice pointed out during the oral argument
Speaker 7: that you know, this is what the prior regime did.
Speaker 7: It issued these general water quality standards instead of specific
Speaker 7: discharge limitations. And in his view, and this is what
Speaker 7: the city argued, that the Clean Water Act was actually
Speaker 7: enacted in part to replace that regime with one which
Speaker 7: gave the dischargers more notice upfront in terms of the
Speaker 7: specific limitations that were permissible.
Speaker 2: And did it seem just as the liberals were taking
Speaker 2: issue with the City, that the Conservatives were taking issue
Speaker 2: with the EPA.
Speaker 7: Well, there was a group of them. There was the
Speaker 7: Chief Justice, Justice Kavanaugh. Justice Gorsich pushed back the hardest,
Speaker 7: I think, and the main concern on that sort of
Speaker 7: unified them was the lack of fair notice to the
Speaker 7: city and other dischargers in this situation. Where As I
Speaker 7: mentioned earlier, you know, potentially these jurisdictions are on the
Speaker 7: hook for significant penalties in this case, you know, literally
Speaker 7: billions of dollars according to the city, and they don't
Speaker 7: know exactly, the city argues, and the Conservatives sort of
Speaker 7: picked up on how to comply with the Clean Water
Speaker 7: Act in this instance, particularly where there are multiple discharges
Speaker 7: going into the same place, and who's responsible for what
Speaker 7: in terms of figuring out whether or not the water
Speaker 7: quality standard is met. But there was some uncertainty, at
Speaker 7: least in terms of where the other justices were. Justice Barrett,
Speaker 7: who actually joined the more liberal justices in an environmental
Speaker 7: case last term, Ohio versus EPA, you know, didn't join
Speaker 7: the stronger attack by the other conservative justices and seemed
Speaker 7: to be probing a narrower angle and dealing with these
Speaker 7: challenges under the arbitrary and capricious doctrine. Justice Solito picked
Speaker 7: up a little bit on the government's argument that in
Speaker 7: this case, the problem was that San Francisco hadn't provided
Speaker 7: adequate data to the EPA, leaving it with the predicament
Speaker 7: that it had to issue these more general standards, and
Speaker 7: Justice Thomas definitely had some tough questions for the city,
Speaker 7: although his position was a little bit less clear. So,
Speaker 7: you know, San Francisco coming out of the argument, I
Speaker 7: think should feel good about its position, but it's not
Speaker 7: over yet.
Speaker 2: Are other cities in the same position as San Francisco
Speaker 2: have the same problems.
Speaker 7: So I think that the use of general Walader quality
Speaker 7: standards is definitely not the norm. But one thing that
Speaker 7: came up during the oral argument in response to questioning
Speaker 7: from Justice Kavanaugh was that there was many amikas brief
Speaker 7: file friends of the Court, from businesses, municipalities, and the
Speaker 7: like who had serious concerns and reservations and problems with
Speaker 7: the EPA's approach here, and you know, talked about the
Speaker 7: dangers and lack of fair notice with this sort of
Speaker 7: more general water quality standard regime, and that was something
Speaker 7: that resonated with Justice Kavanaugh at least and probably some
Speaker 7: of the other justices as well.
Speaker 2: This is the first case to grapple with federal agency
Speaker 2: power since lopeer Bright was decided last June. That's the
Speaker 2: case that overturned Chevron deference. So you didn't hear much
Speaker 2: about Chevron deference in these oral arguments.
Speaker 7: No, not a word. EPA certainly didn't ask for it,
Speaker 7: and you know, it was clear that this is going
Speaker 7: to come down to what Congress actually said in the
Speaker 7: statute and the Court's best interpretation of that, which, of
Speaker 7: course is the way it works after Wiperbright, and really
Speaker 7: the way has worked at the Supreme Court for many years,
Speaker 7: even before Loperbright.
Speaker 2: Do you think that we're just not going to hear
Speaker 2: about chevron defference in future arguments at all, or about
Speaker 2: that concept.
Speaker 7: We're definitely not going to hear about chevron difference. I
Speaker 7: think the more interesting question is will we hear about
Speaker 7: other time types of difference, so called get more difference?
Speaker 7: You know, how aggressive will the government be in trying
Speaker 7: to claim some type of difference in other cases and
Speaker 7: try to push back a little bit? And I think
Speaker 7: that that'll be an interesting trend to follow on the
Speaker 7: court this term and beyond.
Speaker 2: The EPA has faced a string of losses at the
Speaker 2: Supreme Court in recent years, for example, with the court
Speaker 2: curbing its ability to reduce greenhouse gases and to protect wetlands.
Speaker 2: Does it seem like in some respect it's going to
Speaker 2: lose in this case as well, whether it's broad or limited.
Speaker 7: I don't think that that's a certainty at this point.
Speaker 7: I mean, one of the other questions that came up
Speaker 7: during the oral argument was whether or not there were
Speaker 7: some flaws with this case, and maybe the court just
Speaker 7: not decided altogether. But you know, I think you're going
Speaker 7: to feel better about youural argument coming out of it
Speaker 7: if you're san Francisco an EPA, and I think you
Speaker 7: know EPA and the government more generally has been behind
Speaker 7: the eight ball and these administrative challenge cases, and you know,
Speaker 7: EPA sort of finds itself in a particularly difficult positions
Speaker 7: when you combined aggressive enforcement of its environmental priorities with
Speaker 7: broader statutory provisions, which is the area where the Supreme
Speaker 7: Court has been particularly adamant in demanding the the agency
Speaker 7: point to more specific authority in the statute for what
Speaker 7: it's doing.
Speaker 2: Thanks so much for coming on again, Greg and sharing
Speaker 2: those insights with us. That's former US Solicitor General Gregory
Speaker 2: Garr of Latham and Watkins. Coming up next on this
Speaker 2: special holiday edition of the Bloomberg Law Show, the justices
Speaker 2: grapple with whether ghost guns meet the federal definition of
Speaker 2: a firearm. I'm June Grasso. When you're listening to.
Speaker 1: Bloomberg, this is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2: Thanks for joining us for a special holiday edition of
Speaker 2: the Bloomberg Law Show. I'm June Grosso. We're looking at
Speaker 2: some high profile Supreme Court arguments from this term. Still ahead,
Speaker 2: we'll dive into an unusual death penalty case that finds
Speaker 2: the State of Oklahoma siding with a defendant on death row.
Speaker 8: But first these guns were being purchased and used in crime.
Speaker 8: They were sold to be crime guns. There was a
Speaker 8: one thousand percent increase between twenty seventeen and twenty twenty
Speaker 8: one in the number of these guns that were recovered
Speaker 8: as part of criminal investigations. And it makes perfect sense
Speaker 8: because the whole reason why you would want to get
Speaker 8: your hands on one of these unseerialized, untraceable firearms is
Speaker 8: if you are a prohibited person or you want to
Speaker 8: use that gun in a crime.
Speaker 2: Solicitor General Elizabeth Prelager argued that the Supreme Court should
Speaker 2: uphold the Biden administration's regulation of ghost guns, nearly untraceable
Speaker 2: firearms that can be assembled at home in as little
Speaker 2: as twenty minutes.
Speaker 8: Those untraceable guns are attractive to people who can't lawfully
Speaker 8: purchase them or who plan to use them in crimes.
Speaker 8: As a result, our nation has seen an explosion in
Speaker 8: crimes committed with ghost guns.
Speaker 2: During oral arguments, the Justice is grappled with the question
Speaker 2: of whether ghost guns meet the definition of firearms under
Speaker 2: the Federal Gun Control Act that would allow the government
Speaker 2: to regulate them. The analogies were plentiful. Justice Samuel Alito,
Speaker 2: who seemed skeptical of the government's argument, compared the gun
Speaker 2: kits to cooking ingredients.
Speaker 5: There I show you I put out on a counter
Speaker 5: some eggs, some chopped up ham, some chopped up pepper,
Speaker 5: and onions.
Speaker 1: Is that a Western ovelet?
Speaker 8: No, because again those items have well known other uses
Speaker 8: to become something other than an omelet. The key difference
Speaker 8: here is that these up and parts kits are designed
Speaker 8: and intended to be used as instruments of combat, and
Speaker 8: they have no other conceivable use.
Speaker 2: But Justice Amy Coney Barrett jumped in comparing gun kits
Speaker 2: to meal kits.
Speaker 4: No pre lager.
Speaker 3: I just want to follow up on Justice Alito's question
Speaker 3: about the omelet. Would your answer change if you ordered
Speaker 3: it from Hello Fresh and you've got a kit and
Speaker 3: it was like turkey chili, but all of the ingredient
Speaker 3: answer in the kit.
Speaker 1: Yes.
Speaker 2: The best analogies seemed to be if you buy a
Speaker 2: bed from Ikea that you have to assemble, is it
Speaker 2: still a bed? Joining me? Is Kevin Tobia, a professor
Speaker 2: at Georgetown Law, Many people might expect that this is
Speaker 2: a second Amendment case since it concerns guns, but tell
Speaker 2: us what the question before the court was.
Speaker 9: Here, So it's not a second in the case. It's
Speaker 9: a statutory case. So it concerns the Gun Control Act
Speaker 9: of nine sixty eight. And there's two questions in the case,
Speaker 9: and so both of them involve the meaning of different
Speaker 9: language in this statute. So the question in some ways
Speaker 9: is kind of simple, right before you get to like
Speaker 9: all the kind of complexity that they were working through,
Speaker 9: which is what counts as a firearm for this law.
Speaker 9: And so these gun parts kits, they're marketed and sold
Speaker 9: as kits that you can buy and assemble and construct
Speaker 9: into a functional firearm. So, you know, a lot of
Speaker 9: the conversation was drawing analogies to different sorts of goods,
Speaker 9: playing kind of with language and trying to understand, you know,
Speaker 9: what counts as an omelet or what counts as a table.
Speaker 8: Right.
Speaker 9: So Justice A. Leado offered this example kind of possible
Speaker 9: to the government's position that if we just have you know,
Speaker 9: peppers and mushrooms and eggs, that's not an omelet yet.
Speaker 9: So in the same way, like a collection of gun
Speaker 9: parts is not a firearm yet, And just as Barrett
Speaker 9: actually sort of responded as said, well, what if those
Speaker 9: come in a Hello Fresh kit, we actually might understand
Speaker 9: that as an omelet, even though it's not completely assembled yet.
Speaker 9: And you know, the example of Nikia table came up
Speaker 9: as well. Some of the argument got into the technicalities
Speaker 9: of like what exactly is included in these parts kits?
Speaker 9: What's a frame and receiver? More broadly, a lot of
Speaker 9: the justices were drawing these analogies to other sorts of
Speaker 9: items that were pretty comfortable to call tables even though
Speaker 9: they're assembled or onless, even though they're unassembled.
Speaker 2: The ghost gun kits don't come with fully assembled frames
Speaker 2: or receivers the core component of a firearm, so a
Speaker 2: kit might require the purchaser to drill some hole so
Speaker 2: that pins can be inserted. The challengers, the gun manufacturers
Speaker 2: and gun right supporters, argue that's what puts the kits
Speaker 2: outside the law, But their attorney, Peter Patterson, faced a
Speaker 2: tough audience, especially from the Chief Justice, who didn't seem
Speaker 2: to be buying that argument.
Speaker 6: What is the purpose of selling a receiver without the
Speaker 6: holes drilled in it?
Speaker 10: Well, there are some individuals, and just like some individuals
Speaker 10: enjoy like working on their car every weekend. Some individuals
Speaker 10: want to construct their own firearms. So the purpose of
Speaker 10: selling it is to allow I'm trying to go his
Speaker 10: to assist and provide individuals with material which which they
Speaker 10: can do that.
Speaker 6: Well. I mean, drilling whole or two I would think
Speaker 6: doesn't give the same sort of reward that you get
Speaker 6: from working on your car on the weekends.
Speaker 9: Yeah, so I thought that line of questioning from Justice
Speaker 9: Roberts was really interesting. I think, especially if you're trying
Speaker 9: to read the tea leaves and sort of think about
Speaker 9: where some of these justices will vote, and I think
Speaker 9: Roberts is a kind of important one in this case.
Speaker 9: He asked straight up, like, what's the purpose of selling
Speaker 9: a receiver without the holes drilled in it? And you know,
Speaker 9: one answer from Patterson is, you know, people buy this
Speaker 9: as a hobbyist, right in the same way you might
Speaker 9: buy like a collection of unassembled parts to make it
Speaker 9: like a little toy ship or model or something, or
Speaker 9: working on a car and you enjoy it. And Justice
Speaker 9: Roberts really did not seem to be buying that answer, right.
Speaker 9: He said, you know, drilling a whole or two doesn't
Speaker 9: really give you the kind of reward you get from
Speaker 9: working on your car over the weekend. And I think
Speaker 9: he's exactly right there. Right, So, like when you look
Speaker 9: at how these guns are marketed as well, these parts
Speaker 9: kits are not marketed for hobbyists, Like they're not described
Speaker 9: by language like this is a really leisurely, enjoyable, difficult build, right,
Speaker 9: They're marketed in terms like this is extremely fast and easy,
Speaker 9: this is ridiculously easy, like this is dummy proof, like
Speaker 9: you can do this really fast with no expertise. And
Speaker 9: so I think that analogy that Patterson was trying to
Speaker 9: draw between buyers of these kids and cobbyists just really
Speaker 9: fell apart. And I think there's a great question from
Speaker 9: Justice Roberts and also give some insight into where he
Speaker 9: might stand on this case.
Speaker 2: Is anyone arguing that this isn't a kit to assemble
Speaker 2: a gun? What I'm getting at is, are they just
Speaker 2: looking for a loophole here?
Speaker 9: Yeah, So I think everyone agrees that these are kits
Speaker 9: to be assembled into a gun. Vanderstock's argument is just
Speaker 9: because of a kid that you could assemble into a
Speaker 9: gun does not in fact make it a firearm. Within
Speaker 9: the meaning of the statute, and the government sees the
Speaker 9: statutory meeting a firearm to include these kits. You know,
Speaker 9: interesting thing that came out to your question is there
Speaker 9: was some discussion, a lot of discussion actually about kind
Speaker 9: of where to draw the line. And I think even
Speaker 9: Patterson conceded that a firearm that's disassembled as a firearm,
Speaker 9: and so this question about like how close does it
Speaker 9: have to be? And so you know, the government's argument is,
Speaker 9: you know, once it's readily convertible, which these kids they
Speaker 9: think are, that's good enough. And so the term fire
Speaker 9: arms should encompass these kits which could be readily converted
Speaker 9: to function as firearms very quickly.
Speaker 2: Justice Gorsuch asked questions of a textualist nature. Where do
Speaker 2: you think a textualist analysis gets you here?
Speaker 9: So there's two questions in the case, right. So the
Speaker 9: first one is about whether a parts kit falls under
Speaker 9: the Part A of this statute. So any weapon which
Speaker 9: will is designed to or may readily be converted to
Speaker 9: expel a projectile by the action explosive. As a matter
Speaker 9: of textualism, I think that question in this case is
Speaker 9: extremely straightforward, that these parts kits fall under that language.
Speaker 9: Just as part of the ordinary meaning of firearm. And
Speaker 9: then you're underscored by the statutory language. The statute explicitly
Speaker 9: contemplates things that could be readily converted to expel a projectile,
Speaker 9: which just seems to be explicitly describing things like these
Speaker 9: parts kits. And in question, the second question in the
Speaker 9: case is about the meaning of the frame or receiver
Speaker 9: of any such weapon in the statue, and many of
Speaker 9: Justice Gorsuch's questions had to do with that second question.
Speaker 9: So there the question is, if these companies sell an
Speaker 9: eighty percent receiver, which, as the government says, you have
Speaker 9: to drill a few holes in to convert this to
Speaker 9: a one hundred percent functional receiver, does that count as
Speaker 9: a frame or receiver within the meaning of the statute?
Speaker 9: And so you know, Justice Gorsuch was asking a number
Speaker 9: of kind of interesting questions about that, and going in
Speaker 9: I would not have kind of, as a matter of politics,
Speaker 9: expected Justice Gorsage to be favorable to the government in
Speaker 9: this case, but his questions sort of suggested some openness
Speaker 9: to following the text in this case to a place
Speaker 9: that might not lead to the sort of conservative politics.
Speaker 9: So he was asking, you know, when you look at
Speaker 9: this statue and look at the context. Every other part
Speaker 9: of the statute is contemplating convertible parts in addition to
Speaker 9: fully functional parts, and so in that context, might we
Speaker 9: understand frame and receiver just giving them their ordinary meaning
Speaker 9: in that context to also include things that are extremely
Speaker 9: close to functional and frame and receivers. I thought it
Speaker 9: was a really interesting kind of exchange between Gorsuch and
Speaker 9: the Swisser General from that point, So, the.
Speaker 2: Solicitor General mentioned several times the explosion in crimes committed
Speaker 2: using ghost guns and that the new regulations are crucial
Speaker 2: for solving gun crimes. And also you had a group
Speaker 2: of twenty major cities filing with the Supreme Court saying
Speaker 2: that the regulation appears to have been effective reducing the
Speaker 2: use of ghost guns. Where does that fit into the
Speaker 2: Supreme Court's analysis, especially if it's a textualist analysis.
Speaker 9: That's interesting if you think about textualism sort of as stated,
Speaker 9: with the idea that the court will resolve this question
Speaker 9: just by looking at the statutory text and giving that
Speaker 9: language the meaning it would have in the eyes of
Speaker 9: an ordinary reader, you might think those conserations about the
Speaker 9: practical consequences are irrelevant, Like, that's exactly the sort of
Speaker 9: political consequential decisions that they're trying to screen off with textualism.
Speaker 9: So what's interesting is if that's right, looks like actually
Speaker 9: a majority of the justices are inclined to read the
Speaker 9: text in line with the government. That would be the
Speaker 9: three Democratic appointees and then potentially Roberts, Kavanaugh, Barrett Gorsich.
Speaker 9: I think Roberts in particular was responsive to some of
Speaker 9: the government's arguments about the practical consequences kind of over
Speaker 9: and above the text. So, currently, federal law prohibits selling
Speaker 9: firearms to twenty one year olds, It requires backgrounds, check, serialization,
Speaker 9: all these requirements, and if the court decides that these
Speaker 9: kits are not firearms, those requirements will not apply at
Speaker 9: the federal level. And so there's a real concern right that, again,
Speaker 9: if people who are buying these kits are not hobbyists
Speaker 9: but rather people who just want a firearm, there's a
Speaker 9: real circumvention concern that basically all of the law that
Speaker 9: would apply to firearm regulation effectively is meaningless because someone
Speaker 9: could just get the ghost gun and build their own
Speaker 9: kit in twenty minutes or however long it takes, and so,
Speaker 9: you know, some of Robert's questions, I think we're very
Speaker 9: much kind of responsive to that set of concerns and
Speaker 9: the principle that if you read the statute in that way,
Speaker 9: the way Vnderstock wants it to, you'll render a big
Speaker 9: chunk of federal law meaningless. And so Congress was really underscoring.
Speaker 2: Just a few months ago, the Supreme Court, in a
Speaker 2: six to three decision, tossed out a ban on bump stocks.
Speaker 2: That Cargol case was also a statutory interpretation case. Does
Speaker 2: that case have implications for this Vounderstock case?
Speaker 9: That case it actually concerned a different firearm statue, So
Speaker 9: it concerns the definition of machine gun. Wherever you come
Speaker 9: out on Garland versus Cargo, whether it's sort of easy
Speaker 9: or difficult case textually, the case that they heard dander
Speaker 9: Stock as a matter of language is like just much
Speaker 9: more straightforward, you know. I think it's reassuring actually that
Speaker 9: the Court's oral argument, many of the questions, especially from
Speaker 9: Barrett and Roberts and course such in Kavandah, really seem
Speaker 9: to recognize that fact these gun part kits are firearms
Speaker 9: in ordinary English. And then the statute explicitly talks about
Speaker 9: weapons that could be readily converted to expel a projectile,
Speaker 9: which you know also really underscores that these sort of
Speaker 9: kits are included, and the context indicates the same with
Speaker 9: the frame of receivers. And so for this oral argument,
Speaker 9: I think if you think the court is primarily a
Speaker 9: political actor, you see the bump stock case, you think
Speaker 9: this is going to come out the same way. Six
Speaker 9: y three after the oral argument, I've got a little
Speaker 9: more hope that the Court's going to follow the text,
Speaker 9: although time will tell.
Speaker 2: Thanks Kevin. That's Georgetown Law professor Kevin Tobia. I note
Speaker 2: Michael Bloomberg, the founder majority owners of Bloomberg LP, the
Speaker 2: parent company of Bloomberg Radio, is a donor to groups
Speaker 2: that support gun control, including Every Town for Gun Safety.
Speaker 2: You're listening to a special holiday edition of the Bloomberg
Speaker 2: Law Show. Up next a death penalty case that finds
Speaker 2: the State of Oklahoma siding with a defendant on death row.
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Speaker 2: podcast Slash Law. I'm June Grosso and you're listening to Bloomberg.
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 5: This is a.
Speaker 2: Special holiday edition of the Bloomberg Law Show. I'm June Grosso.
Speaker 2: We're looking at some import and Supreme Court case. Is
Speaker 2: this term?
Speaker 11: Attorney General Drummond did not confess error here lightly. Indeed,
Speaker 11: he continues to defend multiple capital convictions and opposed mister
Speaker 11: Glossop's pen ultimate sert petition, But after commissioning an independent review,
Speaker 11: he reluctantly reached the conclusion that Brady and Napu violations
Speaker 11: by the state's own prosecutors obligated him to confess error
Speaker 11: and waive procedural obstacles.
Speaker 2: It's a very unusual death penalty case where the State
Speaker 2: of Oklahoma is coming before the Supreme Court on the
Speaker 2: same side as a defendant on death row, arguing that
Speaker 2: Richard Glossop's nineteen ninety seven murder conviction and capital sentence
Speaker 2: should be undone due to prosecutorial misconduct. Former US Solicitor
Speaker 2: General Paul Clement argued for the Oklahoma ag gentner Drummond,
Speaker 2: who had made an extraordinary concession known as a confession
Speaker 2: of error admitted that the prosecutor in the case withheld
Speaker 2: evidence from the defense and elicited false testimony from the
Speaker 2: state's star witness at trial. The prosecutor's handwritten notes, which
Speaker 2: were unearthed in twenty twenty two, revealed that the state's
Speaker 2: star witness had been diagnosed with bipolar disorder and was
Speaker 2: being treated by a psychiatrist with lithium. Several of the
Speaker 2: justices seem to be divided about how important that evidence
Speaker 2: would have been to the jury. Here are Chief Justice
Speaker 2: John Roberts and Justice is Elena Kagan and Brett Kavanaugh.
Speaker 6: Because the jury knew about the lithium, and what they
Speaker 6: didn't know is that it was prescribed by a psychiatrist,
Speaker 6: do you really think it would make that much of
Speaker 6: a difference to the jury.
Speaker 4: That seems pretty material to me. I mean, it's just
Speaker 4: your one witness has been exposed as a liar.
Speaker 5: Would have made the conviction more likely if the jury
Speaker 5: knows that not only does he have an incentive to lie,
Speaker 5: that he's lied on the stand in that he's bipolar,
Speaker 5: therefore creating all sorts of avenues for questioning his credibility.
Speaker 2: Gossip has faced nine execution dates and eaten his last
Speaker 2: meal three times. In is more than twenty five years
Speaker 2: on death row. Joining me is Cliff Sloan, a professor
Speaker 2: at Georgetown Law who's argued several cases at the Supreme Court,
Speaker 2: including a victory in a case involving the death penalty.
Speaker 2: Tell us about the evidence the Oklahoma ag found a
Speaker 2: few years ago about the state star witness who testified
Speaker 2: against Glossop in exchange for not getting the death penalty himself.
Speaker 12: So what was discovered was very important prosecutorial notes establishing
Speaker 12: that the main witness, and really the only witness tying
Speaker 12: Gossop to the murder, had a bipolar disorder and had
Speaker 12: received lithium under a prescription from a psychiatrist. And this
Speaker 12: was directly contrary to this witness's testimony at the trial
Speaker 12: where he said he had received lithium for a cold,
Speaker 12: and he flatly said he had never seen a psychiatrist,
Speaker 12: And right there in the notes of the prosecutor or
Speaker 12: notes establishing that it was from a psychiatrist. And also
Speaker 12: there was separately a medical record establishing that the psychiatrist
Speaker 12: had prescribed the lithium for the bipolar disorder. This would
Speaker 12: have been extremely important to the jury both in its
Speaker 12: consideration of guilt or innocence and in his consideration of
Speaker 12: the death penalty. Because the witness was really the entire
Speaker 12: case against mister Glossop. It's undisputed mister Glossops had no
Speaker 12: role in the actual killing of the victim himself. The
Speaker 12: theory of the state was that he hired this other man,
Speaker 12: Sneed to do the killing, and so Sneed's testimony was
Speaker 12: the only thing that linked Glossop to the killing.
Speaker 2: What's so unusual in this case is that Oklahoma's age
Speaker 2: is arguing along with Glossop that his murder conviction should
Speaker 2: be set aside.
Speaker 12: The Republican Attorney General of Oklahoma, who generally is very
Speaker 12: much in favor of the death penalty, has really acted
Speaker 12: in the finest traditions of justice here because he commissioned
Speaker 12: an independent investigation which concluded that mister Glossop's conviction and
Speaker 12: his death penalty cannot stand because of this false testimony
Speaker 12: and because of the failure to turn over important evidence
Speaker 12: to the defense, which is a constitutional violation, and so
Speaker 12: he concluded in good conscience he had to stand up
Speaker 12: and say that the conviction should be set aside and
Speaker 12: the death penalty should be set aside. And there also
Speaker 12: was another independent investigation commissioned by the Republican state legislator
Speaker 12: which reached the same conclusion. But what is really striking
Speaker 12: here is that the Oklahoma Court flatly rejected the very
Speaker 12: considered decision of the Oklahoma Attorney General that there needs
Speaker 12: to be a new trial and that the death sentence
Speaker 12: cannot stand.
Speaker 2: And at the oral arguments, a lot of time was
Speaker 2: spent on the procedural question whether the state court's decision
Speaker 2: rested on independent state grounds, in which case the Supreme
Speaker 2: Court couldn't review the case. Something Justice Samuel Alito kept pressing.
Speaker 12: Well, you know, that's the issue that's presented about whether
Speaker 12: there's a threshold procedural problem that is based in state
Speaker 12: law and that would prevent the Supreme Court from reaching
Speaker 12: the federal constitutional issues. So it's an important threshold issue.
Speaker 12: But you had other justices very much emphasizing that they
Speaker 12: don't think that is a serious problem. That they think
Speaker 12: it's clear that the Oklahoma Court rested its decision on
Speaker 12: an erroneous analysis of the federal constitutional claims. That the
Speaker 12: state procedural reference was wrapped up in that, and you
Speaker 12: even had Justice Kagan asking a question where she suggested
Speaker 12: that the reference to the state procedural issue was simply
Speaker 12: because the Oklahoma Court was throwing in the entire kitchen sink,
Speaker 12: and so it was just mixed up with a lot
Speaker 12: of other things. It had no independent basis. And you
Speaker 12: also had a number of the justices, including Justices Kagan,
Speaker 12: so the mayor and Jackson emphasizing that this supposed independent
Speaker 12: rule that the Oklahoma Court was enforcing had never been
Speaker 12: enforced in this kind of context in any case other
Speaker 12: than one involving Richard Colossa, which added to their view.
Speaker 12: But this is something that was a makewight that Oklahoma
Speaker 12: was just throwing in and is not a bar to
Speaker 12: Supreme Court review.
Speaker 2: So Glossop has a claim of a Brady violation where
Speaker 2: the prosecutor didn't turn over evidence, and also a NAPU
Speaker 2: violation where the prosecutor presented false testimony and didn't correct
Speaker 2: it at trial. Here's Justice Kagan on that a.
Speaker 4: Napoo violation is a pretty dramatic thing when a prosecutor says, leg,
Speaker 4: we'll stop there, that was a lie under NAPO.
Speaker 12: A prosecutor, of course cannot put on perjured testimony, and
Speaker 12: if the prosecutor learns that the testimony has been perjured,
Speaker 12: the prosecutor has to corrected or notified the defense about
Speaker 12: it and hear. What the independent investigations have found is
Speaker 12: that the prosecutor put out perjured testimony, never corrected it
Speaker 12: to the contrary, took efforts to protect it. That's a
Speaker 12: very very serious constitutional violation. It goes to the heart
Speaker 12: of what the criminal justice system should be about. And
Speaker 12: you know, some of the justices were very much bothered
Speaker 12: by this violation and seemed to think that it's open
Speaker 12: and shut. Other justices seemed more skeptical about whether it
Speaker 12: was as clear a violation and also how significant it
Speaker 12: would have been, you know, in terms of materiality, which
Speaker 12: is important for NAPO, and whether it would have made
Speaker 12: a difference or not. So I think there's clearly a
Speaker 12: split among the justices both about the procedure and the
Speaker 12: substance in terms of how they're viewing it.
Speaker 2: It's always hard to read through oral arguments what's going
Speaker 2: to happen, and particularly in this case where a lot
Speaker 2: of the justices said very little, Do you have any
Speaker 2: idea of what the lineup might be from these arguments, well.
Speaker 12: You know, with the usual important caveat that is very
Speaker 12: difficult to predict. Here's what I took away from the argument.
Speaker 12: And by the way, Justice course it was not participating,
Speaker 12: but it as from the argument that Justice Alito and
Speaker 12: Justice Thomas were very hostile to glossop claims into the
Speaker 12: position of the Oklahoma Attorney General and very skeptical of it.
Speaker 12: It seems that Justices Soda, Mayor, Kagan, and Jackson were
Speaker 12: very sympathetic to the positions of Glossop and the Oklahoma
Speaker 12: Attorney General. And so that leaves Chief Justice Roberts, Justice Kavanaugh,
Speaker 12: and Justice Barrett. And I think it was difficult to
Speaker 12: tell from the questions exactly where those three are, and
Speaker 12: I think that you know, that's going to be the
Speaker 12: ballgame where those three justices are.
Speaker 2: There did seem to be some support for a sort
Speaker 2: of middle position remanding the case back to the State
Speaker 2: Court for an evidentiary hearing.
Speaker 12: A couple of the justices were suggesting that perhaps what
Speaker 12: should happen is that it should be sent back for
Speaker 12: additional facts finding about exactly what happened and how important
Speaker 12: it was. Some of the Justices were very explicitly saying
Speaker 12: that they didn't think that was necessary in light of
Speaker 12: the record and how clear the violations were.
Speaker 2: The Supreme Court rarely grants relief in death penalty cases.
Speaker 2: Tell us about the Roberts Court's history in this area.
Speaker 12: Well, I think that the way in general that the
Speaker 12: current Supreme Court is approaching death penalty cases is very,
Speaker 12: very troubling. It's very very difficult for capital defendants. The
Speaker 12: Court is creating all sorts of new procedural obstacles, and
Speaker 12: it's also as a general matter, being very unsympathetic to
Speaker 12: claims of capital defendants. Now that's not you know, one
Speaker 12: hundred percent of the time. There have been, you know,
Speaker 12: a few cases in recent years where the Court has
Speaker 12: rules for capital defendants, but overwhelmingly, the Court is dramatically
Speaker 12: tilting the playing field in favor of the death penalty.
Speaker 12: And you know, the class of case really illustrates three
Speaker 12: of the most troubling characteristics of the death penalty in
Speaker 12: the United States today. One of them is the prevalence
Speaker 12: of cases of innocence and exoneration of people on death row.
Speaker 12: There have been two hundred people on death row who
Speaker 12: have been found to be innocent and who have been exonerated,
Speaker 12: a truly shocking and alarming fact. The second problem that
Speaker 12: it highlights is misconduct by prosecutors. In seventy percent of
Speaker 12: the cases where there has been found to be innocence
Speaker 12: of people on death row, there has been misconduct by
Speaker 12: prosecutors exactly this kind of thing, putting on false testimony,
Speaker 12: not correcting it, not turning over very important evidence. And
Speaker 12: the third, very disturbing problem is when courts don't accept prosecutors'
Speaker 12: conclusions that a conviction and a death penalty cannot stand.
Speaker 12: That happened recently in the execution of Marcellus Williams, and
Speaker 12: we're seeing it in the Glossop case.
Speaker 2: And in Glossop's case, he can only afford to lose
Speaker 2: three votes because with eight justices hearing the case, a
Speaker 2: four to four vote would affirm the Oklahoma courts ruling
Speaker 2: against him. Thanks so much for being on the show.
Speaker 2: That's Professor Cliff Sloan of Georgetown Law, and that does
Speaker 2: it for this special holiday edition of The Bloomberg Law Show.
Speaker 2: I'm June Brosso. Stay with us. Today's top stories and
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