1 00:00:03,160 --> 00:00:12,760 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:13,760 --> 00:00:16,239 Speaker 1: It's the first time in almost thirty years that the 3 00:00:16,360 --> 00:00:20,479 Speaker 1: Justice Department has convinced a jury to convict citizens of 4 00:00:20,560 --> 00:00:25,360 Speaker 1: seditious conspiracy against the United States, convicting two members of 5 00:00:25,400 --> 00:00:29,040 Speaker 1: the far right wing group the Oath Keepers, of conspiring 6 00:00:29,120 --> 00:00:34,600 Speaker 1: to oppose by force the peaceful transfer of presidential power before, during, 7 00:00:34,600 --> 00:00:37,880 Speaker 1: and after the attack on the Capitol. On January six, 8 00:00:38,520 --> 00:00:42,720 Speaker 1: Attorney General Merrick Garland vowed to continue the prosecutions over 9 00:00:42,760 --> 00:00:46,040 Speaker 1: the insurrection as a verdict of this case makes clear, 10 00:00:46,800 --> 00:00:51,120 Speaker 1: the Department will work tirelessly to hold a countel those 11 00:00:51,200 --> 00:00:55,240 Speaker 1: responsible for crimes relating to the attack on our democracy. 12 00:00:55,560 --> 00:00:59,040 Speaker 1: On January six, in a marathon trial that stretched over 13 00:00:59,160 --> 00:01:03,480 Speaker 1: seven weeks, the government displayed hundreds of messages, call logs, 14 00:01:03,560 --> 00:01:07,920 Speaker 1: and video footage like this made by Oathkeepers founders Stuart 15 00:01:08,000 --> 00:01:12,120 Speaker 1: Rhodes right after the election. We have been already stationed 16 00:01:12,120 --> 00:01:15,360 Speaker 1: outside DC as a nuclear option in case the attempt 17 00:01:15,400 --> 00:01:17,840 Speaker 1: to remove the president illegally, we will step in and 18 00:01:17,880 --> 00:01:21,520 Speaker 1: stop it. My guest is former federal prosecutor Jimmy Grula, 19 00:01:21,760 --> 00:01:24,880 Speaker 1: a professor at Notre Dame Law School Jimmy. The jury 20 00:01:24,920 --> 00:01:28,600 Speaker 1: convicted only Rhodes and a top lieutenant of the seditious 21 00:01:28,640 --> 00:01:34,119 Speaker 1: conspiracy charges. It convicted all five defendants of obstructing certification 22 00:01:34,200 --> 00:01:38,040 Speaker 1: of the Electoral College vote and various other felonies. So 23 00:01:38,160 --> 00:01:41,200 Speaker 1: just how significant is this verdict? I think it's important 24 00:01:41,200 --> 00:01:43,200 Speaker 1: on a couple of levels. First, I think it's a 25 00:01:43,319 --> 00:01:47,680 Speaker 1: very powerful rebuttal to the narrative that the January six 26 00:01:47,880 --> 00:01:52,440 Speaker 1: rioters were so called patriots. What this verdict proves is 27 00:01:52,480 --> 00:01:55,480 Speaker 1: in instead of patriots, many of these individuals, certainly, these 28 00:01:55,520 --> 00:01:59,600 Speaker 1: five individuals that were convicted are criminals. And these individuals 29 00:01:59,600 --> 00:02:01,440 Speaker 1: have been can evicted of some of the most serious 30 00:02:01,520 --> 00:02:04,880 Speaker 1: crimes against the government, including two of them convicted of 31 00:02:04,920 --> 00:02:08,640 Speaker 1: seditious conspiracy, which is second only in terms of its 32 00:02:08,639 --> 00:02:12,520 Speaker 1: severity and important, second only to treason. And I think 33 00:02:12,600 --> 00:02:17,400 Speaker 1: the other important takeaway is whether or not the convictions 34 00:02:17,600 --> 00:02:21,120 Speaker 1: are going to motivate any of the five defendants to 35 00:02:21,160 --> 00:02:25,880 Speaker 1: cooperate with the government. So all five defendants were convicted 36 00:02:25,919 --> 00:02:29,320 Speaker 1: of obstructing an official proceeding. That's a very serious offense 37 00:02:29,360 --> 00:02:31,560 Speaker 1: that carries a penalty up to twenty years in prison. 38 00:02:31,840 --> 00:02:35,680 Speaker 1: So these individuals have a real incentive to try to 39 00:02:35,720 --> 00:02:40,600 Speaker 1: reduce their criminal liability and term of imprisonment by cooperating 40 00:02:40,760 --> 00:02:43,080 Speaker 1: with the government. So we'll have to wait and see 41 00:02:43,120 --> 00:02:46,840 Speaker 1: what happens there, and then lastly, whether or not these 42 00:02:46,919 --> 00:02:50,160 Speaker 1: verdicts are going to encourage others to cooperate with the government. 43 00:02:50,200 --> 00:02:52,680 Speaker 1: So there are several individuals that have trials that are 44 00:02:52,760 --> 00:02:57,760 Speaker 1: pending and again involving very serious felony charges, and it 45 00:02:57,760 --> 00:03:00,320 Speaker 1: will be interesting to see whether they're motivated to operate 46 00:03:00,360 --> 00:03:03,240 Speaker 1: with the government as well. The verdicts weren't a slam 47 00:03:03,360 --> 00:03:07,240 Speaker 1: dunk for the prosecution. I mean they only found too 48 00:03:07,320 --> 00:03:10,560 Speaker 1: guilty of the top charge, which is really the minimum 49 00:03:10,639 --> 00:03:14,079 Speaker 1: number for a conspiracy. Yeah, that's true. There are ten 50 00:03:14,160 --> 00:03:17,560 Speaker 1: counts that the jury considered. The fact that some were quitted, 51 00:03:17,680 --> 00:03:20,520 Speaker 1: some were convicted. What a suggest to me is that 52 00:03:20,600 --> 00:03:24,320 Speaker 1: it was a jury that really took its responsibilities seriously 53 00:03:24,520 --> 00:03:27,679 Speaker 1: with respect to each count and the evidence as it 54 00:03:27,800 --> 00:03:30,600 Speaker 1: retained to each individual. So they really called through the 55 00:03:30,639 --> 00:03:33,680 Speaker 1: evidence and applied the evidence defended by defendant, and in 56 00:03:33,720 --> 00:03:36,560 Speaker 1: some cases they just found that there was not sufficient 57 00:03:36,600 --> 00:03:39,600 Speaker 1: evidence beyond a reasonable doubt of an agreement, which is 58 00:03:39,680 --> 00:03:45,760 Speaker 1: the central element to establish conspiracy, including seditious conspiracy. Will 59 00:03:45,800 --> 00:03:50,040 Speaker 1: these verdicts make other defendants more or less likely to 60 00:03:50,160 --> 00:03:53,040 Speaker 1: try to reach a plea deal. I think they're going 61 00:03:53,120 --> 00:03:57,360 Speaker 1: to have the effect of causing others to rethink whether 62 00:03:57,400 --> 00:03:59,840 Speaker 1: they want to go to trial and whether they want 63 00:04:00,000 --> 00:04:03,360 Speaker 1: to run the risk of being convicted. Now, again, it's 64 00:04:03,400 --> 00:04:05,840 Speaker 1: going to depend upon the strength of the government's evidence 65 00:04:05,920 --> 00:04:08,520 Speaker 1: in each of these other cases that are yet to 66 00:04:08,600 --> 00:04:11,840 Speaker 1: be litigated at trial. But I think this is sending 67 00:04:11,840 --> 00:04:14,800 Speaker 1: a very powerful message that you very well could be convicted, 68 00:04:15,240 --> 00:04:17,359 Speaker 1: and if so, you could be looking at twenty, you know, 69 00:04:17,480 --> 00:04:20,880 Speaker 1: plus years in prison, spending a substantial period of your 70 00:04:20,920 --> 00:04:22,760 Speaker 1: life in prison. And so I think it's going to 71 00:04:22,880 --> 00:04:26,720 Speaker 1: cause a number of defendants to pause and reconsider. I 72 00:04:26,720 --> 00:04:29,279 Speaker 1: think it's going to cause their attorneys to reach out 73 00:04:29,320 --> 00:04:31,280 Speaker 1: to them and say, you know what, let's think about this, 74 00:04:31,400 --> 00:04:33,680 Speaker 1: let's talk through this. Are you sure you want to 75 00:04:33,760 --> 00:04:36,680 Speaker 1: run the risk, because if you do, you could very 76 00:04:36,680 --> 00:04:41,240 Speaker 1: well run the same fate that these five defendants, including 77 00:04:41,279 --> 00:04:46,560 Speaker 1: Stewart Rhods have with reflected jury convictions. On Monday, four 78 00:04:46,600 --> 00:04:49,720 Speaker 1: other members of the Oath Keepers are scheduled to go 79 00:04:49,800 --> 00:04:54,400 Speaker 1: on trial on seditious conspiracy charges because a judge split 80 00:04:54,440 --> 00:04:57,680 Speaker 1: the trial. So the question is whether a jury will 81 00:04:57,680 --> 00:05:01,800 Speaker 1: hold them accountable for sedition. And even though none of 82 00:05:01,839 --> 00:05:04,479 Speaker 1: them were leaders of the group and that seemed to 83 00:05:04,520 --> 00:05:07,280 Speaker 1: make a difference. Here you raise a good point, and 84 00:05:07,320 --> 00:05:09,920 Speaker 1: again it's very important that we not talk about these 85 00:05:09,920 --> 00:05:14,280 Speaker 1: cases and broad generalities because with respect to criminal liability, 86 00:05:14,839 --> 00:05:17,960 Speaker 1: it's going to turn on the evidence that is relevant 87 00:05:18,000 --> 00:05:21,160 Speaker 1: to each defendant. And in this particular case, with respect 88 00:05:21,200 --> 00:05:24,599 Speaker 1: to Rhodse and Meg's, there was compelling evidence of their 89 00:05:24,640 --> 00:05:28,839 Speaker 1: involvement in a seditious conspiracy. So that evidence was largely 90 00:05:28,920 --> 00:05:33,320 Speaker 1: their own words in various text messages and other communications. 91 00:05:33,360 --> 00:05:36,200 Speaker 1: So that was the most compelling evidence against them that really, 92 00:05:36,440 --> 00:05:39,000 Speaker 1: I think caused the jury to find them guilty. So 93 00:05:39,080 --> 00:05:41,440 Speaker 1: the question is going to be, with respect of future 94 00:05:41,480 --> 00:05:44,159 Speaker 1: cases and the four defendants in this upcoming case on 95 00:05:44,200 --> 00:05:49,360 Speaker 1: seditious conspiracy, does the government have similar compelling evidence coming 96 00:05:49,400 --> 00:05:51,600 Speaker 1: from their own words and their own statements and their 97 00:05:51,640 --> 00:05:55,000 Speaker 1: own admissions. And so that's a critical question moving forward. 98 00:05:55,400 --> 00:05:59,520 Speaker 1: We talked before about Stuart Rhodes being a graduate of 99 00:05:59,640 --> 00:06:03,279 Speaker 1: Yelled Law School and deciding to take the stand in 100 00:06:03,480 --> 00:06:06,080 Speaker 1: his own defense. Do you think that helped him at 101 00:06:06,120 --> 00:06:08,479 Speaker 1: all with some of the charges he was found not 102 00:06:08,600 --> 00:06:11,280 Speaker 1: guilty of. Well, it certainly didn't. Didn't help him with 103 00:06:11,320 --> 00:06:14,520 Speaker 1: the most serious church you know, seditious conspiracy. So it's 104 00:06:14,600 --> 00:06:18,160 Speaker 1: always a risk, it's a major risk whenever a defendant 105 00:06:18,320 --> 00:06:21,320 Speaker 1: decides to testify in his own offense. Of course they 106 00:06:21,320 --> 00:06:23,960 Speaker 1: have that right to do so, but it carries a 107 00:06:24,000 --> 00:06:27,640 Speaker 1: substantial downside, and that is that the government then is 108 00:06:27,680 --> 00:06:30,520 Speaker 1: going to be able to cross examine the witness, and 109 00:06:30,560 --> 00:06:33,039 Speaker 1: that evidence that they used a cross examined could be 110 00:06:33,160 --> 00:06:36,719 Speaker 1: very damaging against the defendant. And that was the case 111 00:06:36,760 --> 00:06:39,599 Speaker 1: with Stuart Rhodes. I mean they confronted him time and 112 00:06:39,640 --> 00:06:43,360 Speaker 1: time again with his own statements that again suggested that 113 00:06:43,400 --> 00:06:47,479 Speaker 1: he was engaged in this conspiracy to use violence to 114 00:06:47,560 --> 00:06:51,280 Speaker 1: prevent the peaceful transfer of power and the certification of 115 00:06:51,360 --> 00:06:55,400 Speaker 1: the Electoral College votes. So yeah, I mean, it may 116 00:06:55,440 --> 00:06:58,039 Speaker 1: have helped him with a couple of charges, but I think, 117 00:06:58,040 --> 00:07:00,320 Speaker 1: to be honest with you, maybe it been of fitted 118 00:07:00,400 --> 00:07:02,560 Speaker 1: him with the lesser charges. But you look at what 119 00:07:02,640 --> 00:07:05,159 Speaker 1: I consider to be that the two most serious charge, 120 00:07:05,200 --> 00:07:08,719 Speaker 1: or the sedition charge and the obstruction of official proceedings charge, 121 00:07:08,960 --> 00:07:11,200 Speaker 1: which both carry a twenty years sentence, and he was 122 00:07:11,240 --> 00:07:14,360 Speaker 1: convicted of both of those. The defendants attorneys said they're 123 00:07:14,360 --> 00:07:18,480 Speaker 1: going to appeal. Any appellate issues stand out to you, No, 124 00:07:18,680 --> 00:07:21,200 Speaker 1: not really, it'll be interesting to see. I mean, of course, 125 00:07:21,360 --> 00:07:23,160 Speaker 1: the defense council is always going to say that, you know, 126 00:07:23,200 --> 00:07:25,120 Speaker 1: we're going to appeal, and they certainly have a right 127 00:07:25,160 --> 00:07:27,640 Speaker 1: to do so, but you're really, in reality, it's it's 128 00:07:27,800 --> 00:07:30,760 Speaker 1: very rare and kind of extraordinary where the Court of 129 00:07:30,800 --> 00:07:33,960 Speaker 1: Appeals will find that there was prejudice at the trial 130 00:07:34,160 --> 00:07:37,560 Speaker 1: that would justify overturning the conviction of those cases are 131 00:07:37,680 --> 00:07:40,920 Speaker 1: very rare, and there's nothing about the proceedings in this case, 132 00:07:41,680 --> 00:07:45,640 Speaker 1: no major issue, no major controversial issue, a major procedural 133 00:07:45,800 --> 00:07:47,800 Speaker 1: or of an injury issue that would cause me to 134 00:07:47,840 --> 00:07:50,480 Speaker 1: believe that any of these convictions are going to be overturned. 135 00:07:50,760 --> 00:07:54,800 Speaker 1: Throughout the trial, prosecutors highlighted the defendants links to key 136 00:07:54,840 --> 00:07:59,520 Speaker 1: allies of former President Trump, such as Roger Stone Alley, 137 00:07:59,560 --> 00:08:04,000 Speaker 1: Alex Ender, Michael Flynn, an attorney Sidney Powell, and Rudy Giuliani, 138 00:08:04,320 --> 00:08:07,680 Speaker 1: and Rhodes. Attorney James Lee Bright said he expects the 139 00:08:07,800 --> 00:08:11,679 Speaker 1: Justice Department to take this mixed verdict as a sign 140 00:08:11,760 --> 00:08:16,600 Speaker 1: to move full speed ahead with prosecutions against others allegedly 141 00:08:16,680 --> 00:08:20,720 Speaker 1: involved in planning January six. Do you agree with that? Yeah? 142 00:08:20,840 --> 00:08:22,600 Speaker 1: I do. I think at the end of the day, 143 00:08:22,680 --> 00:08:24,640 Speaker 1: even though it was a mixed verdie and the jury 144 00:08:24,640 --> 00:08:27,960 Speaker 1: didn't convict all defendants and all charges, the reality is 145 00:08:28,000 --> 00:08:30,840 Speaker 1: this is still a major victory for the Department of Justice. 146 00:08:30,880 --> 00:08:32,920 Speaker 1: And I don't care how you try to spend it, 147 00:08:33,000 --> 00:08:35,520 Speaker 1: you can't spend it away from that result. And so 148 00:08:35,600 --> 00:08:37,760 Speaker 1: I think it's certainly going to encourage and in bolden 149 00:08:37,760 --> 00:08:40,280 Speaker 1: the Department of Justice to move forward in a very 150 00:08:40,320 --> 00:08:43,800 Speaker 1: aggressive manner. And then with respect to the cooperation, you know, 151 00:08:43,880 --> 00:08:47,240 Speaker 1: the question is, well, what evidence might these five defendants 152 00:08:47,320 --> 00:08:49,720 Speaker 1: or other defendants have that would be of value to 153 00:08:49,800 --> 00:08:52,959 Speaker 1: the Department of Justice. So do they have valuable evidence 154 00:08:53,080 --> 00:08:56,160 Speaker 1: against Roger Stone as a member of the conspiracy to 155 00:08:56,200 --> 00:08:59,040 Speaker 1: commit sedition? What about Steve Bannon? What about Michael Flynn? 156 00:08:59,120 --> 00:09:01,960 Speaker 1: What about Johnny Man. I do think that someone like 157 00:09:02,080 --> 00:09:06,840 Speaker 1: Stuart Rhodes might have valuable, credible evidence to implicate these 158 00:09:06,880 --> 00:09:11,840 Speaker 1: individuals and perhaps others in conspiratorial conduct. The question always 159 00:09:11,920 --> 00:09:16,160 Speaker 1: ends up being will Trump be prosecuted by the Justice 160 00:09:16,200 --> 00:09:20,160 Speaker 1: Department in this case? The defense lawyers said that nothing 161 00:09:20,200 --> 00:09:25,200 Speaker 1: in all the information they got implicated Trump. Yeah, that's 162 00:09:25,320 --> 00:09:27,000 Speaker 1: that's a very good point. It's a very good question. 163 00:09:27,280 --> 00:09:29,080 Speaker 1: And so we don't want to read too much into 164 00:09:29,120 --> 00:09:32,720 Speaker 1: these verdicts, and so well, again it's a major victory 165 00:09:32,840 --> 00:09:35,360 Speaker 1: for further Department of Justice. I mean, I still think 166 00:09:35,360 --> 00:09:39,160 Speaker 1: there's a long ways to go in terms of establishing 167 00:09:39,679 --> 00:09:43,640 Speaker 1: sufficient evidence or in criminal charges against former President Trump, 168 00:09:43,640 --> 00:09:46,959 Speaker 1: at least based upon the evidence that's been made available 169 00:09:47,200 --> 00:09:49,960 Speaker 1: to the public. And even if Stuart Rhodes decided to 170 00:09:50,040 --> 00:09:53,960 Speaker 1: cooperate fully cooperate with the Department of Justice, then the 171 00:09:54,040 --> 00:09:57,120 Speaker 1: question is, does he have any any evidence, direct evidence, 172 00:09:57,160 --> 00:10:01,120 Speaker 1: credible evidence that would directly implicate Trump. And that's a 173 00:10:01,120 --> 00:10:02,959 Speaker 1: big question mark, and you know, I wouldn't want to 174 00:10:03,000 --> 00:10:06,720 Speaker 1: speculate on that point. So for those that say, oh, well, 175 00:10:06,760 --> 00:10:09,600 Speaker 1: now you know this verdict is really going to open 176 00:10:09,640 --> 00:10:13,439 Speaker 1: the door to bringing criminal charges against former President Trump, 177 00:10:13,480 --> 00:10:15,400 Speaker 1: I don't think we're there yet, and I think that 178 00:10:15,640 --> 00:10:17,880 Speaker 1: at this point is premature to make those those types 179 00:10:17,880 --> 00:10:21,600 Speaker 1: of claims. At the press conference, there are questions for 180 00:10:21,640 --> 00:10:26,079 Speaker 1: Attorney General Merrick Garland about whether having a special counsel 181 00:10:26,080 --> 00:10:30,040 Speaker 1: appointed is slowing down the investigation. That's a question that's 182 00:10:30,080 --> 00:10:32,920 Speaker 1: been posed so many times and is there a real 183 00:10:33,000 --> 00:10:35,880 Speaker 1: rush here? Well, the problem is is that we're now 184 00:10:36,400 --> 00:10:40,480 Speaker 1: close to two years, you know, from the January six insurrection, 185 00:10:40,880 --> 00:10:44,400 Speaker 1: and now with the appointment of a of a special council, 186 00:10:44,640 --> 00:10:46,360 Speaker 1: I don't think there's any question that it's going to 187 00:10:46,480 --> 00:10:49,960 Speaker 1: delay the investigation, which of course is going to delay 188 00:10:50,040 --> 00:10:53,880 Speaker 1: any possible criminal charges. The real question for me is 189 00:10:53,960 --> 00:10:56,400 Speaker 1: how long as the appointment of special council going to 190 00:10:56,559 --> 00:10:59,760 Speaker 1: lay the proceedings? And it could be substantial, it could 191 00:10:59,760 --> 00:11:02,400 Speaker 1: be a substantial delay and and and the reality is, 192 00:11:02,440 --> 00:11:05,240 Speaker 1: I mean, we may not have a decision one way 193 00:11:05,320 --> 00:11:09,200 Speaker 1: or the other even up to elections. I mean, it's 194 00:11:09,240 --> 00:11:11,679 Speaker 1: it's conceivable. And I think that as we get closer 195 00:11:11,679 --> 00:11:14,520 Speaker 1: and closer to the election, and of course, if former 196 00:11:14,600 --> 00:11:18,200 Speaker 1: President Trump is the Republican nominee, I think that the 197 00:11:18,280 --> 00:11:21,160 Speaker 1: Department of Justice is probably going to be even less 198 00:11:21,160 --> 00:11:25,320 Speaker 1: inclined to bring criminal charges that would influence certainly the 199 00:11:25,320 --> 00:11:28,840 Speaker 1: the outcome of the presidential election. And so I think 200 00:11:28,880 --> 00:11:31,480 Speaker 1: this process is likely going to be delayed for a 201 00:11:31,520 --> 00:11:35,839 Speaker 1: significant period of time and maybe even beyond election. It 202 00:11:35,920 --> 00:11:39,200 Speaker 1: seems like they could move forward on Moral Lago, on 203 00:11:39,280 --> 00:11:45,160 Speaker 1: the Moral Lago documents, because that's a sort of confined investigation. Yeah, 204 00:11:45,200 --> 00:11:46,920 Speaker 1: I think a couple of things. So I think that's 205 00:11:46,920 --> 00:11:50,199 Speaker 1: an excellent point. Coupled with, you know, maybe where the 206 00:11:50,400 --> 00:11:54,480 Speaker 1: public is focusing too much on the Department of Justice investigation, 207 00:11:54,880 --> 00:11:57,960 Speaker 1: and maybe in terms of criminal charges being brought, you know, 208 00:11:58,040 --> 00:12:00,480 Speaker 1: sooner rather than later, those are going to be coming 209 00:12:00,520 --> 00:12:03,679 Speaker 1: from state jurisdiction, stuff from the Department of Justice. So 210 00:12:03,720 --> 00:12:06,560 Speaker 1: we may be looking at criminal charges coming out of Georgia, 211 00:12:06,840 --> 00:12:10,480 Speaker 1: criminal charges coming out of New York, you know, before 212 00:12:10,600 --> 00:12:14,080 Speaker 1: any federal criminal charges, if any, are filed by the 213 00:12:14,120 --> 00:12:18,480 Speaker 1: Department of Justice. So maybe that should be the proper focus. Finally, 214 00:12:18,800 --> 00:12:22,640 Speaker 1: there was a question about the January six Committee not 215 00:12:22,760 --> 00:12:27,320 Speaker 1: giving all the transcripts and information to the Justice Department. 216 00:12:27,800 --> 00:12:30,720 Speaker 1: What is their motive for holding back on those There's 217 00:12:30,760 --> 00:12:33,880 Speaker 1: a couple of concerns, are I suspect, and that is, 218 00:12:34,040 --> 00:12:37,319 Speaker 1: you know, maybe there's some concern that if these documents, 219 00:12:37,320 --> 00:12:41,480 Speaker 1: these transcripts or discloses, somehow they may be leaked, and 220 00:12:41,600 --> 00:12:46,960 Speaker 1: that would would interfere and obstruct the Congressional January six 221 00:12:47,000 --> 00:12:51,200 Speaker 1: Committee investigation. So but again that that that's very speculative, 222 00:12:51,440 --> 00:12:54,280 Speaker 1: you know, kind of kind of looking to, you know, 223 00:12:54,360 --> 00:12:57,040 Speaker 1: what's the justification, trying to come up with some explanation 224 00:12:57,559 --> 00:13:00,160 Speaker 1: for that. But on the other hand, what trouble to 225 00:13:00,240 --> 00:13:02,760 Speaker 1: me too is that why is an Apartment of Justice 226 00:13:02,800 --> 00:13:06,440 Speaker 1: having to rely upon a congressional committee to assist to 227 00:13:06,480 --> 00:13:09,599 Speaker 1: them in their investigation. Why is it that the Congressional 228 00:13:09,600 --> 00:13:12,600 Speaker 1: committee is taking the lead on this rather than the 229 00:13:12,600 --> 00:13:15,120 Speaker 1: Department of Justice should be the other way around. Should 230 00:13:15,160 --> 00:13:17,640 Speaker 1: be a Department of Justice that should be moving forward 231 00:13:18,080 --> 00:13:23,520 Speaker 1: at at a more assertive, aggressive manner with respect to 232 00:13:23,559 --> 00:13:28,120 Speaker 1: these serious, serious allegations. They shouldn't be reliant on on 233 00:13:28,160 --> 00:13:31,679 Speaker 1: any congressional committee to assist them in their investigation. I mean, 234 00:13:31,760 --> 00:13:34,720 Speaker 1: look at the resources, look at the look at the manpower, 235 00:13:34,800 --> 00:13:37,840 Speaker 1: look at the the assets, you know, the FBI and 236 00:13:37,960 --> 00:13:41,160 Speaker 1: d o J prosecutors that are available to assist in 237 00:13:41,200 --> 00:13:45,280 Speaker 1: this investigation. And so I I don't find very I'm 238 00:13:45,280 --> 00:13:49,440 Speaker 1: not very sympathetic to d o j's criticism that, oh, 239 00:13:50,000 --> 00:13:54,679 Speaker 1: somehow their investigation is being delayed because the January six 240 00:13:54,720 --> 00:13:57,319 Speaker 1: Committee is not fully complying. They should be taking the 241 00:13:57,440 --> 00:13:59,640 Speaker 1: lead on this, and they shouldn't be relying upon a 242 00:13:59,679 --> 00:14:03,160 Speaker 1: congre national committee to do their work. Good point, Thanks 243 00:14:03,200 --> 00:14:06,280 Speaker 1: so much, Jimmy. That's Professor Jimmy Garule of Notre Dame 244 00:14:06,360 --> 00:14:11,400 Speaker 1: Law School. The Senate has passed legislation to enshrine federal 245 00:14:11,440 --> 00:14:15,600 Speaker 1: protection for same sex marriages, with a bipartisan vote that 246 00:14:15,679 --> 00:14:20,160 Speaker 1: demonstrates the dramatic cultural shift in this country on the issue. 247 00:14:20,600 --> 00:14:23,680 Speaker 1: The six to thirty six vote on Tuesday was a 248 00:14:23,800 --> 00:14:27,560 Speaker 1: victory for Democrats, who have raised concerns that the conservative 249 00:14:27,640 --> 00:14:31,280 Speaker 1: leaning Supreme Court could overturn the right to same sex 250 00:14:31,400 --> 00:14:35,000 Speaker 1: marriage in the same way that it overturned the constitutional 251 00:14:35,120 --> 00:14:38,920 Speaker 1: right to abortion in the Jobs decision. President Joe Biden 252 00:14:39,000 --> 00:14:43,680 Speaker 1: has repeatedly expressed concern over the implications of the decision. 253 00:14:44,120 --> 00:14:48,480 Speaker 1: The reasoning of this decision has an impact much beyond 254 00:14:48,680 --> 00:14:53,760 Speaker 1: row and to the right to privacy more generally. Joining 255 00:14:53,800 --> 00:14:56,520 Speaker 1: me is Michael Dorff, a professor of constitutional law and 256 00:14:56,600 --> 00:15:00,080 Speaker 1: Cornell Law School, to talk about his recent article, Well 257 00:15:00,120 --> 00:15:04,880 Speaker 1: the Supreme Court respect the Respect for Marriage Act? Explain 258 00:15:05,040 --> 00:15:08,840 Speaker 1: why despite what Justice Alito wrote in the majority opinion 259 00:15:08,880 --> 00:15:13,200 Speaker 1: in Dabbs. You feel that Justice Thomas was correct that 260 00:15:13,320 --> 00:15:18,400 Speaker 1: the logic of Dobbs threatens O Burgha fell. The primary 261 00:15:18,600 --> 00:15:22,440 Speaker 1: argument offered by Justice Alito and the majority opinion in 262 00:15:22,520 --> 00:15:30,240 Speaker 1: Dobbs is that abortion was not deeply rooted in history 263 00:15:30,280 --> 00:15:34,480 Speaker 1: and tradition as a constitutional right, and therefore Roe v. 264 00:15:34,680 --> 00:15:39,400 Speaker 1: Wade was not just wrongly decided, but egregiously. So. It's 265 00:15:39,480 --> 00:15:43,720 Speaker 1: true that when he comes to distinguishing other rights, he 266 00:15:43,880 --> 00:15:49,080 Speaker 1: says that those other rights do not destroy a human 267 00:15:49,160 --> 00:15:52,600 Speaker 1: life or a potential human life, but that distinction is 268 00:15:52,640 --> 00:15:56,240 Speaker 1: something of a non sequitur, because that's not his primary 269 00:15:56,280 --> 00:15:59,320 Speaker 1: basis for rejecting the right to abortion. The primary basis 270 00:15:59,360 --> 00:16:03,520 Speaker 1: for rejecting the right is the lack of deep historical roots. 271 00:16:03,600 --> 00:16:06,760 Speaker 1: And one could certainly say the same thing about same 272 00:16:06,800 --> 00:16:10,040 Speaker 1: sex marriage, and for that matter, other rights such as 273 00:16:10,240 --> 00:16:16,080 Speaker 1: interracial marriage, such as contraception, etcetera. And therefore Justice Thomas 274 00:16:16,160 --> 00:16:18,000 Speaker 1: I think, does have a point when he says in 275 00:16:18,080 --> 00:16:21,800 Speaker 1: his concurring opinion, I agree with the majority, and we 276 00:16:21,840 --> 00:16:25,720 Speaker 1: should apply this same rationale to those other precedents and 277 00:16:25,760 --> 00:16:29,400 Speaker 1: overrule them as well. As you point out the justices 278 00:16:29,400 --> 00:16:35,080 Speaker 1: in the Dobbs majority who were on the court in Roberts, Thomas, 279 00:16:35,160 --> 00:16:39,920 Speaker 1: and Alito all dissented in O. Burger Fell. Does that 280 00:16:40,400 --> 00:16:43,360 Speaker 1: give us pause to think that they'll be ready to 281 00:16:44,160 --> 00:16:47,720 Speaker 1: overturn O. Berger Fell? I think probably not. With respect 282 00:16:47,800 --> 00:16:51,280 Speaker 1: to Chief Justice Roberts, who I should say I characterized 283 00:16:51,280 --> 00:16:53,360 Speaker 1: in a column as in the Dobbs majority, and he 284 00:16:53,480 --> 00:16:55,640 Speaker 1: was in the adopts majority with respect to the outcome, 285 00:16:55,640 --> 00:16:59,880 Speaker 1: but he didn't join Justice Alito's opinion. And more general, 286 00:17:00,280 --> 00:17:04,320 Speaker 1: I don't think Chief Justice Roberts is especially opposed to 287 00:17:04,359 --> 00:17:06,879 Speaker 1: the outcome of A Burgher felt. He is uh seemed 288 00:17:06,880 --> 00:17:08,840 Speaker 1: to have made his peace with it. I do think 289 00:17:09,000 --> 00:17:13,639 Speaker 1: Justices Thomas and Alito would be prepared to overrule A 290 00:17:13,680 --> 00:17:16,480 Speaker 1: Burger Felt. Certainly. Justice Thomas said as much in his 291 00:17:16,840 --> 00:17:20,760 Speaker 1: Dobb's concurrence, And while Justice Alito didn't say that, I 292 00:17:20,800 --> 00:17:23,439 Speaker 1: think that all he was saying was that this case 293 00:17:23,560 --> 00:17:27,120 Speaker 1: doesn't overrule a Burgher felt. If enough of his colleagues 294 00:17:27,119 --> 00:17:29,679 Speaker 1: were willing to reconsider it, I don't doubt that he 295 00:17:29,720 --> 00:17:34,280 Speaker 1: would be in the majority to overturn. Did Justice Thomas 296 00:17:34,320 --> 00:17:38,760 Speaker 1: mentioned interracial marriage when he was talking about cases that 297 00:17:38,880 --> 00:17:43,240 Speaker 1: might be reversed? He did not, But I think Justice 298 00:17:43,280 --> 00:17:46,359 Speaker 1: Thomas would say, as probably most of the justices in 299 00:17:46,440 --> 00:17:50,320 Speaker 1: the majority would say, that the right interracial marriage recognize 300 00:17:50,359 --> 00:17:55,480 Speaker 1: in Loving against Virginia can be independently justified as a 301 00:17:55,520 --> 00:17:58,639 Speaker 1: matter of equal protection. So Justice Thomas has said that 302 00:17:58,680 --> 00:18:01,560 Speaker 1: he doesn't think there's any constitutional right to marry at all, 303 00:18:02,040 --> 00:18:05,199 Speaker 1: but I think he would probably say that if the 304 00:18:05,280 --> 00:18:08,840 Speaker 1: state does recognize marriages, it can't discriminate on the basis 305 00:18:08,840 --> 00:18:11,520 Speaker 1: of race because that would deny equal protection. So I 306 00:18:11,560 --> 00:18:15,520 Speaker 1: don't think that interracial marriage is really at risk because 307 00:18:15,560 --> 00:18:19,840 Speaker 1: it's independently protected by a different constitutional right. Now, explain 308 00:18:19,880 --> 00:18:24,240 Speaker 1: what the Respect for Marriage Act does. The Second Marriage 309 00:18:24,280 --> 00:18:28,800 Speaker 1: Act does three main things. First, it says that the 310 00:18:28,920 --> 00:18:32,600 Speaker 1: definition of marriage for purposes of federal law, for example, 311 00:18:32,680 --> 00:18:37,000 Speaker 1: federal income tax law, depends on whether a couple are 312 00:18:37,119 --> 00:18:40,560 Speaker 1: married under state law. So if a same sex couple 313 00:18:40,680 --> 00:18:44,080 Speaker 1: is married under Massachusetts law and they live in Massachusetts, 314 00:18:44,200 --> 00:18:47,560 Speaker 1: then on their federal taxes, they're married for federal purposes. 315 00:18:47,840 --> 00:18:51,200 Speaker 1: The second thing it does is it says that even 316 00:18:51,240 --> 00:18:54,520 Speaker 1: if the state doesn't want to recognize same sex marriage 317 00:18:54,600 --> 00:18:58,600 Speaker 1: on its own, it must give recognition to same sex 318 00:18:58,640 --> 00:19:02,280 Speaker 1: marriages of people who were married in another state, and 319 00:19:02,320 --> 00:19:06,240 Speaker 1: that includes both couples who lived in another state where 320 00:19:06,320 --> 00:19:08,600 Speaker 1: same sex marriage was legal and then moved to the 321 00:19:08,600 --> 00:19:12,320 Speaker 1: new state. Let's say they moved from New York to Louisiana. 322 00:19:12,400 --> 00:19:15,680 Speaker 1: If Louisiana were to outlast same sex marriage after a 323 00:19:15,760 --> 00:19:18,520 Speaker 1: burgher Fell were overruled, they would have to be treated 324 00:19:18,560 --> 00:19:21,400 Speaker 1: as married by Louisiana, and so would a couple from 325 00:19:21,440 --> 00:19:26,080 Speaker 1: Louisiana who went to New York to get married there. So, 326 00:19:26,119 --> 00:19:29,000 Speaker 1: in that sense, it effectively makes it possible to have 327 00:19:29,000 --> 00:19:31,440 Speaker 1: a same sex marriage anywhere in the country, at least 328 00:19:31,480 --> 00:19:33,720 Speaker 1: if one is willing to travel to another state to 329 00:19:33,760 --> 00:19:35,720 Speaker 1: get married and one has the wherewithal to do it. 330 00:19:35,880 --> 00:19:38,240 Speaker 1: The third thing it does, and this is different in 331 00:19:38,280 --> 00:19:41,680 Speaker 1: the Senate version that just passed from the original House version, 332 00:19:42,160 --> 00:19:47,800 Speaker 1: is it includes a provision that allows nonprofit religious organizations 333 00:19:47,840 --> 00:19:52,600 Speaker 1: to decline to provide services, accommodations, goods, et cetera to 334 00:19:53,119 --> 00:19:56,640 Speaker 1: the wedding that of a same sex couple. The Respect 335 00:19:56,680 --> 00:20:01,560 Speaker 1: from Marriage Act, why doesn't it require states to recognize 336 00:20:01,640 --> 00:20:06,320 Speaker 1: same sex marriage no matter where the marriage is performed. 337 00:20:06,960 --> 00:20:10,520 Speaker 1: Probably because it's not clear that Congress has the power 338 00:20:10,640 --> 00:20:13,480 Speaker 1: to do that. The powers of Congress are set out 339 00:20:13,520 --> 00:20:16,399 Speaker 1: in the Constitution, mostly in Article one, Section eight, but 340 00:20:16,440 --> 00:20:21,000 Speaker 1: a few other places, and family law is generally deemed 341 00:20:21,040 --> 00:20:24,359 Speaker 1: a matter of state law that is reserved to the 342 00:20:24,400 --> 00:20:27,760 Speaker 1: states by the Tenth Amendment. So Congress probably doesn't have 343 00:20:27,800 --> 00:20:31,960 Speaker 1: the affirmative power to create a nationwide law of marriage 344 00:20:32,240 --> 00:20:34,080 Speaker 1: in the same way that it doesn't have the affirmative 345 00:20:34,080 --> 00:20:38,119 Speaker 1: power to create a nationwide law of divorce or child 346 00:20:38,200 --> 00:20:41,000 Speaker 1: custody or any of a number of other things. That's 347 00:20:41,000 --> 00:20:44,640 Speaker 1: not to say there isn't federal power in the area, right, 348 00:20:44,720 --> 00:20:48,680 Speaker 1: And so when federal power is being exercised, as for example, 349 00:20:48,760 --> 00:20:51,760 Speaker 1: with respect to the tax code, and it implicates marriage, 350 00:20:52,080 --> 00:20:54,920 Speaker 1: then the federal government can step in either with its 351 00:20:54,920 --> 00:20:58,320 Speaker 1: own definition or as under the Respect for Marriage Act, 352 00:20:58,520 --> 00:21:02,480 Speaker 1: and indeed under the current law by accepting the state definition. 353 00:21:03,040 --> 00:21:06,720 Speaker 1: And why doesn't the full Faith and Credit clause require 354 00:21:06,840 --> 00:21:12,280 Speaker 1: states to recognize marriages performed in other states even without 355 00:21:12,359 --> 00:21:15,960 Speaker 1: this new law the r M A. Well, arguably it does, 356 00:21:16,359 --> 00:21:21,720 Speaker 1: but there has long been a recognized exception to full 357 00:21:21,760 --> 00:21:25,920 Speaker 1: faith and credit not expressly included in Article four of 358 00:21:25,960 --> 00:21:29,480 Speaker 1: the Constitution, which is where that clause appears, but recognized 359 00:21:29,520 --> 00:21:34,960 Speaker 1: by courts that states can refuse to recognize marriages and 360 00:21:35,200 --> 00:21:39,440 Speaker 1: other provisions of state law where it violates the state's 361 00:21:39,480 --> 00:21:42,360 Speaker 1: own public policy. To give us you have a relatively 362 00:21:42,400 --> 00:21:48,840 Speaker 1: uncontroversial example. Imagine that a state recognizes child marriage, as 363 00:21:49,119 --> 00:21:54,440 Speaker 1: California actually does, with the consent of parents. And so 364 00:21:54,520 --> 00:21:56,760 Speaker 1: you have a twelve year old or a thirteen year 365 00:21:56,760 --> 00:22:00,160 Speaker 1: old who's married in California, and then they move move 366 00:22:00,240 --> 00:22:02,919 Speaker 1: to a state that sets as a minimum age for 367 00:22:03,000 --> 00:22:06,560 Speaker 1: marriage sixteen or eighteen or something like that. The state 368 00:22:06,680 --> 00:22:11,040 Speaker 1: would be entitled to use its public policy exception to say, well, 369 00:22:11,240 --> 00:22:13,840 Speaker 1: you might be married in California, but here we regard 370 00:22:13,920 --> 00:22:17,720 Speaker 1: that as against our public policy. So the key way 371 00:22:17,800 --> 00:22:21,320 Speaker 1: in which the r m A is lacking then is 372 00:22:21,359 --> 00:22:24,720 Speaker 1: that it doesn't give the protection that oh Burgherfel gives 373 00:22:24,760 --> 00:22:29,439 Speaker 1: two marriages performed anywhere in the country. Yes, that's right. 374 00:22:29,480 --> 00:22:33,480 Speaker 1: It doesn't mandate that every state legalize same sex marriage 375 00:22:33,600 --> 00:22:36,840 Speaker 1: performed in that state, but it effectively reproduces much of 376 00:22:36,880 --> 00:22:40,080 Speaker 1: that except as I say, and this is perhaps a 377 00:22:40,080 --> 00:22:43,359 Speaker 1: pretty big exception, except for couples who can't afford to 378 00:22:43,400 --> 00:22:47,359 Speaker 1: travel to another state, potentially a distant one. Because states 379 00:22:47,440 --> 00:22:51,399 Speaker 1: tend to clump geographically with respect to social issues. So 380 00:22:51,400 --> 00:22:53,000 Speaker 1: if they can't afford to travel to a state where 381 00:22:53,000 --> 00:22:55,560 Speaker 1: the same six marriage is recognized, then they can't get 382 00:22:55,560 --> 00:22:57,840 Speaker 1: married in their home state. So in that sense that 383 00:22:57,960 --> 00:23:00,200 Speaker 1: that is a big difference. So now that the sane 384 00:23:00,600 --> 00:23:04,879 Speaker 1: focus of your piece is whether the Supreme Court would 385 00:23:05,000 --> 00:23:08,880 Speaker 1: respect the Respect for Marriage Act, So tell us about 386 00:23:08,960 --> 00:23:12,159 Speaker 1: your conclusions there. Well, my conclusion is that if you 387 00:23:12,320 --> 00:23:18,159 Speaker 1: straightforwardly apply the existing precedent, the answer is yes with 388 00:23:18,240 --> 00:23:22,560 Speaker 1: respect to all three of the key elements of the 389 00:23:22,760 --> 00:23:27,200 Speaker 1: r m A. First, Congress has wide latitude to define 390 00:23:27,600 --> 00:23:31,560 Speaker 1: the meaning of terms in federal statutes, and sometimes it 391 00:23:31,600 --> 00:23:34,399 Speaker 1: expressly does that. There's an actually a federal statute that 392 00:23:34,440 --> 00:23:37,480 Speaker 1: goes by the name of the Dictionary Act that defines 393 00:23:37,760 --> 00:23:43,639 Speaker 1: various words in all federal statutes unless particular context suggests otherwise. 394 00:23:44,040 --> 00:23:47,399 Speaker 1: But it's also quite common that federal law will piggyback 395 00:23:47,480 --> 00:23:49,520 Speaker 1: on state law in the way that the r m 396 00:23:49,560 --> 00:23:51,159 Speaker 1: A does. I think there's a very little chance of 397 00:23:51,200 --> 00:23:54,280 Speaker 1: the Supreme Court would say that that's unconstitutional. I think 398 00:23:54,280 --> 00:23:56,720 Speaker 1: there's also very little chance that the Court would say 399 00:23:56,800 --> 00:24:02,480 Speaker 1: that the provision giving religious nonprofit organizations are right to 400 00:24:02,640 --> 00:24:06,280 Speaker 1: opt out of providing services is unconstitutional. Indeed, the only 401 00:24:06,560 --> 00:24:09,280 Speaker 1: way this issue would arise is if the Supreme Court 402 00:24:09,440 --> 00:24:12,120 Speaker 1: overrules a burgher Fell, and if a court that would 403 00:24:12,119 --> 00:24:14,920 Speaker 1: be willing to do that would welcome such an exception. 404 00:24:15,160 --> 00:24:17,679 Speaker 1: The only place where there is the tiniest bit of 405 00:24:17,680 --> 00:24:21,040 Speaker 1: wiggle room, I suppose, is with respect to the obligation 406 00:24:21,160 --> 00:24:25,000 Speaker 1: of states to recognize out of state same sex marriages. 407 00:24:25,440 --> 00:24:31,360 Speaker 1: And they're most of the cases involving limits on full 408 00:24:31,400 --> 00:24:34,800 Speaker 1: faith and credit have involved divorced and there are other 409 00:24:34,880 --> 00:24:39,760 Speaker 1: contexts in which Congress has exercised its power to, as 410 00:24:39,800 --> 00:24:44,359 Speaker 1: it says an article for decide the effect of full 411 00:24:44,359 --> 00:24:48,440 Speaker 1: faith and credit or out of state acts. But there's 412 00:24:48,520 --> 00:24:51,359 Speaker 1: not a whole lot of law on that, And so 413 00:24:51,440 --> 00:24:54,399 Speaker 1: one could imagine a sort of willful Supreme Court that 414 00:24:54,560 --> 00:24:58,399 Speaker 1: really really doesn't like same sex marriage, denying Congress the 415 00:24:58,480 --> 00:25:02,920 Speaker 1: power to mandate interstate recognition. I don't think that's likely. 416 00:25:03,000 --> 00:25:05,160 Speaker 1: I also don't think it's likely that the Supreme Court 417 00:25:05,400 --> 00:25:07,520 Speaker 1: would over rule a burgher Felt. But I make that 418 00:25:07,640 --> 00:25:12,560 Speaker 1: judgment based mostly on the psychology of the particular justices, 419 00:25:13,040 --> 00:25:15,960 Speaker 1: And if I'm wrong about the psychology with respect to 420 00:25:15,960 --> 00:25:18,320 Speaker 1: their wanting to over rule a burgh Felt, I could 421 00:25:18,320 --> 00:25:21,200 Speaker 1: be wrong about how faithful they would be to existing 422 00:25:21,280 --> 00:25:24,160 Speaker 1: precedent regarding full faith and credit. Tell us a little 423 00:25:24,200 --> 00:25:27,719 Speaker 1: bit more about the psychology of the different justices. Well, 424 00:25:28,000 --> 00:25:32,120 Speaker 1: you know, what we're really asking is to what extent 425 00:25:33,320 --> 00:25:37,280 Speaker 1: is oh burgher Felt a reflection of the values of 426 00:25:37,320 --> 00:25:40,160 Speaker 1: the justices. I think it's fair to say that when 427 00:25:40,280 --> 00:25:45,159 Speaker 1: Chief Justice Robert's dissented in obergha Fell, he wasn't saying 428 00:25:45,240 --> 00:25:48,159 Speaker 1: and he wasn't acting on a view that opposes the 429 00:25:48,200 --> 00:25:50,600 Speaker 1: same sex marriage as a policy matter. I take him 430 00:25:50,600 --> 00:25:53,520 Speaker 1: at his word when he says that he thinks this 431 00:25:53,680 --> 00:25:56,719 Speaker 1: is probably, you know, a perfectly fine development, and he 432 00:25:56,760 --> 00:25:59,320 Speaker 1: has he has no difficulty with it. To put it differently, 433 00:25:59,480 --> 00:26:02,480 Speaker 1: it's not really a culture warrior. He was dissenting on 434 00:26:02,840 --> 00:26:06,639 Speaker 1: jurisprudential principles. On the other hand, I think that some 435 00:26:06,760 --> 00:26:12,520 Speaker 1: of the justices, especially Justices Thomas and Alito, regard same 436 00:26:12,520 --> 00:26:17,480 Speaker 1: sex marriage in much the way that other social conservatives do. 437 00:26:17,640 --> 00:26:21,720 Speaker 1: That is, they oppose it, and so they would think 438 00:26:21,840 --> 00:26:24,400 Speaker 1: that it's not just wrong as a matter of interpreting 439 00:26:24,400 --> 00:26:28,000 Speaker 1: the Constitution, but that it leads to bad results. Now 440 00:26:28,280 --> 00:26:33,000 Speaker 1: In deciding whether to overrule a decision, the Court takes 441 00:26:33,040 --> 00:26:36,480 Speaker 1: account of how well reasoned the case was, but also 442 00:26:37,480 --> 00:26:42,840 Speaker 1: somewhat intangible factors, like what they think of the prior president, 443 00:26:42,840 --> 00:26:45,080 Speaker 1: whether they think it's a good idea bad idea, of 444 00:26:45,080 --> 00:26:48,119 Speaker 1: harmful effects not harmful effect. On the current Court, I 445 00:26:48,280 --> 00:26:52,360 Speaker 1: certainly count Chief Justice Roberts and Justice Gore Such as 446 00:26:52,400 --> 00:26:55,359 Speaker 1: being perfectly fine with same sex marriage. I say that 447 00:26:55,400 --> 00:26:58,080 Speaker 1: about Justice Course Such because he wrote the opinion of 448 00:26:58,119 --> 00:26:59,960 Speaker 1: the Court in the Boss Dot case a couple of 449 00:27:00,200 --> 00:27:06,200 Speaker 1: years ago, holding that the Federal Statutory Employment Discrimination Statute 450 00:27:06,359 --> 00:27:11,879 Speaker 1: forbids sexual orientation discrimination and gender identity discrimination in virtue 451 00:27:11,920 --> 00:27:14,760 Speaker 1: of its prohibition of sex discrimination. So I don't see 452 00:27:14,800 --> 00:27:16,680 Speaker 1: him as having any kind of a beef with same 453 00:27:16,680 --> 00:27:19,840 Speaker 1: sex marriage. And I think I make the same judgment 454 00:27:20,000 --> 00:27:23,919 Speaker 1: probably about Justice Kavanaugh and Barrett. So I really only 455 00:27:24,000 --> 00:27:28,439 Speaker 1: count two and maybe only one justice who are itching 456 00:27:28,520 --> 00:27:31,200 Speaker 1: to over rule oor burgher Felt. But as I say, 457 00:27:31,320 --> 00:27:33,720 Speaker 1: what I've just done is to sort of analyze the 458 00:27:33,760 --> 00:27:40,080 Speaker 1: individual justices based on what I infer are their normative preferences, 459 00:27:40,680 --> 00:27:44,800 Speaker 1: rather than just giving you an account of the logical 460 00:27:44,840 --> 00:27:47,399 Speaker 1: implications of all the legal principles. And that's what I 461 00:27:47,400 --> 00:27:49,560 Speaker 1: mean when I say this is a kind of psychological 462 00:27:49,920 --> 00:27:53,640 Speaker 1: rather than a strictly legal analysis. So let me ask 463 00:27:53,680 --> 00:27:59,119 Speaker 1: you another psychological question. Perhaps there's a great fear since 464 00:27:59,200 --> 00:28:03,439 Speaker 1: the dabbs this vision that the super conservative majority on 465 00:28:03,480 --> 00:28:07,359 Speaker 1: this court is going to lay waste to precedent in 466 00:28:07,400 --> 00:28:11,439 Speaker 1: cases this term from you know, affirmative action, the Voting 467 00:28:11,520 --> 00:28:17,159 Speaker 1: Rights Act giving state legislature's unprecedented power to up end 468 00:28:17,280 --> 00:28:21,040 Speaker 1: federal elections. Do you think that people are right to 469 00:28:21,040 --> 00:28:24,280 Speaker 1: be concerned? Yes, in each of the three cases you 470 00:28:24,400 --> 00:28:26,760 Speaker 1: just identified, they're actually four because there are two affirmative 471 00:28:26,800 --> 00:28:30,960 Speaker 1: action cases. I think that it is not only possible 472 00:28:31,000 --> 00:28:35,679 Speaker 1: but likely that they will reach very conservative results. I 473 00:28:35,680 --> 00:28:39,280 Speaker 1: think they will forbid all or almost all race based 474 00:28:39,320 --> 00:28:43,280 Speaker 1: affirmative action. I think they will further constrain the Voting 475 00:28:43,400 --> 00:28:47,000 Speaker 1: Rights Act. And I have somewhat less confident and I 476 00:28:47,000 --> 00:28:49,520 Speaker 1: therefore I'm a little bit more hopeful with respect to 477 00:28:49,520 --> 00:28:51,600 Speaker 1: what they're going to do in more against Harper, the 478 00:28:51,640 --> 00:28:55,560 Speaker 1: case involving the so called independence date legislature theory. But 479 00:28:55,680 --> 00:28:59,280 Speaker 1: I know that based on what various of the conservative 480 00:28:59,320 --> 00:29:03,280 Speaker 1: justices of in other contexts that they're at least sympathetic 481 00:29:03,360 --> 00:29:06,680 Speaker 1: to some version of this idea that a state legislature 482 00:29:06,760 --> 00:29:10,360 Speaker 1: can decide for itself how to allocate its electors in 483 00:29:10,400 --> 00:29:13,840 Speaker 1: a presidential election, or, as in this particular case, is involved, 484 00:29:13,920 --> 00:29:18,280 Speaker 1: gets the final say over the drawing of district lines, 485 00:29:18,400 --> 00:29:22,480 Speaker 1: notwithstanding the intervention of a state supreme court based on 486 00:29:22,520 --> 00:29:26,240 Speaker 1: the state constitution. One last question. A New Market Law 487 00:29:26,280 --> 00:29:30,800 Speaker 1: School poll finds only of adults approve of the job 488 00:29:30,880 --> 00:29:35,960 Speaker 1: the Supreme Court is doing, while fifty disapprove. But those 489 00:29:36,000 --> 00:29:39,880 Speaker 1: approval numbers are actually up a bit from September where 490 00:29:40,880 --> 00:29:46,680 Speaker 1: approved and six disapproved. What's happened between September and now 491 00:29:46,920 --> 00:29:48,840 Speaker 1: to lead to a bit more approval of the court. 492 00:29:49,080 --> 00:29:54,160 Speaker 1: Public opinion polling about the Supreme Court is notoriously weird 493 00:29:54,680 --> 00:29:57,960 Speaker 1: because people don't have a lot of information about the 494 00:29:58,000 --> 00:30:00,600 Speaker 1: Supreme Court. They often don't really understand and the meaning 495 00:30:00,640 --> 00:30:03,800 Speaker 1: of cases. If I had to guess, I would say 496 00:30:03,840 --> 00:30:08,880 Speaker 1: that the decline in disapproval of the Supreme Court reflects 497 00:30:08,920 --> 00:30:12,360 Speaker 1: the fact that more time has elapsed since the Dawb's opinion, 498 00:30:12,400 --> 00:30:15,560 Speaker 1: which was the last very salient mention of the Supreme Court. 499 00:30:15,680 --> 00:30:19,400 Speaker 1: It's also possible that it reflects us about affirmative action. 500 00:30:20,200 --> 00:30:25,400 Speaker 1: Affirmative action has been unpopular for a couple of decades now, 501 00:30:25,760 --> 00:30:30,840 Speaker 1: so that even blue states like Michigan and California number 502 00:30:30,880 --> 00:30:34,840 Speaker 1: of years ago forbade it by ballot initiative. So insofar 503 00:30:34,880 --> 00:30:38,600 Speaker 1: as there was news reporting that the Supreme Court is 504 00:30:39,040 --> 00:30:42,800 Speaker 1: considering making affirmative action unlawful, I can see how that 505 00:30:42,800 --> 00:30:45,440 Speaker 1: would lead to a slight uptick in approval rating for 506 00:30:45,480 --> 00:30:48,600 Speaker 1: the Court. Thanks so much, Mike for those insights. That's 507 00:30:48,640 --> 00:30:52,360 Speaker 1: Professor Michael Dorff of Cornell Law School. Remember you can 508 00:30:52,400 --> 00:30:55,640 Speaker 1: always get the latest legal news on our Bloomberg Law podcast. 509 00:30:55,920 --> 00:30:58,920 Speaker 1: You can find them on Apple Podcasts, Spotify and at 510 00:30:59,120 --> 00:31:03,600 Speaker 1: ww doul you dot Bloomberg dot com, slash podcast Slash Law. 511 00:31:04,200 --> 00:31:06,959 Speaker 1: I'm Jim Grosso, and you're listening to Bloomberg