Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: It's the first time in almost thirty years that the
Speaker 1: Justice Department has convinced a jury to convict citizens of
Speaker 1: seditious conspiracy against the United States, convicting two members of
Speaker 1: the far right wing group the Oath Keepers, of conspiring
Speaker 1: to oppose by force the peaceful transfer of presidential power before, during,
Speaker 1: and after the attack on the Capitol. On January six,
Speaker 1: Attorney General Merrick Garland vowed to continue the prosecutions over
Speaker 1: the insurrection as a verdict of this case makes clear,
Speaker 1: the Department will work tirelessly to hold a countel those
Speaker 1: responsible for crimes relating to the attack on our democracy.
Speaker 1: On January six, in a marathon trial that stretched over
Speaker 1: seven weeks, the government displayed hundreds of messages, call logs,
Speaker 1: and video footage like this made by Oathkeepers founders Stuart
Speaker 1: Rhodes right after the election. We have been already stationed
Speaker 1: outside DC as a nuclear option in case the attempt
Speaker 1: to remove the president illegally, we will step in and
Speaker 1: stop it. My guest is former federal prosecutor Jimmy Grula,
Speaker 1: a professor at Notre Dame Law School Jimmy. The jury
Speaker 1: convicted only Rhodes and a top lieutenant of the seditious
Speaker 1: conspiracy charges. It convicted all five defendants of obstructing certification
Speaker 1: of the Electoral College vote and various other felonies. So
Speaker 1: just how significant is this verdict? I think it's important
Speaker 1: on a couple of levels. First, I think it's a
Speaker 1: very powerful rebuttal to the narrative that the January six
Speaker 1: rioters were so called patriots. What this verdict proves is
Speaker 1: in instead of patriots, many of these individuals, certainly, these
Speaker 1: five individuals that were convicted are criminals. And these individuals
Speaker 1: have been can evicted of some of the most serious
Speaker 1: crimes against the government, including two of them convicted of
Speaker 1: seditious conspiracy, which is second only in terms of its
Speaker 1: severity and important, second only to treason. And I think
Speaker 1: the other important takeaway is whether or not the convictions
Speaker 1: are going to motivate any of the five defendants to
Speaker 1: cooperate with the government. So all five defendants were convicted
Speaker 1: of obstructing an official proceeding. That's a very serious offense
Speaker 1: that carries a penalty up to twenty years in prison.
Speaker 1: So these individuals have a real incentive to try to
Speaker 1: reduce their criminal liability and term of imprisonment by cooperating
Speaker 1: with the government. So we'll have to wait and see
Speaker 1: what happens there, and then lastly, whether or not these
Speaker 1: verdicts are going to encourage others to cooperate with the government.
Speaker 1: So there are several individuals that have trials that are
Speaker 1: pending and again involving very serious felony charges, and it
Speaker 1: will be interesting to see whether they're motivated to operate
Speaker 1: with the government as well. The verdicts weren't a slam
Speaker 1: dunk for the prosecution. I mean they only found too
Speaker 1: guilty of the top charge, which is really the minimum
Speaker 1: number for a conspiracy. Yeah, that's true. There are ten
Speaker 1: counts that the jury considered. The fact that some were quitted,
Speaker 1: some were convicted. What a suggest to me is that
Speaker 1: it was a jury that really took its responsibilities seriously
Speaker 1: with respect to each count and the evidence as it
Speaker 1: retained to each individual. So they really called through the
Speaker 1: evidence and applied the evidence defended by defendant, and in
Speaker 1: some cases they just found that there was not sufficient
Speaker 1: evidence beyond a reasonable doubt of an agreement, which is
Speaker 1: the central element to establish conspiracy, including seditious conspiracy. Will
Speaker 1: these verdicts make other defendants more or less likely to
Speaker 1: try to reach a plea deal. I think they're going
Speaker 1: to have the effect of causing others to rethink whether
Speaker 1: they want to go to trial and whether they want
Speaker 1: to run the risk of being convicted. Now, again, it's
Speaker 1: going to depend upon the strength of the government's evidence
Speaker 1: in each of these other cases that are yet to
Speaker 1: be litigated at trial. But I think this is sending
Speaker 1: a very powerful message that you very well could be convicted,
Speaker 1: and if so, you could be looking at twenty, you know,
Speaker 1: plus years in prison, spending a substantial period of your
Speaker 1: life in prison. And so I think it's going to
Speaker 1: cause a number of defendants to pause and reconsider. I
Speaker 1: think it's going to cause their attorneys to reach out
Speaker 1: to them and say, you know what, let's think about this,
Speaker 1: let's talk through this. Are you sure you want to
Speaker 1: run the risk, because if you do, you could very
Speaker 1: well run the same fate that these five defendants, including
Speaker 1: Stewart Rhods have with reflected jury convictions. On Monday, four
Speaker 1: other members of the Oath Keepers are scheduled to go
Speaker 1: on trial on seditious conspiracy charges because a judge split
Speaker 1: the trial. So the question is whether a jury will
Speaker 1: hold them accountable for sedition. And even though none of
Speaker 1: them were leaders of the group and that seemed to
Speaker 1: make a difference. Here you raise a good point, and
Speaker 1: again it's very important that we not talk about these
Speaker 1: cases and broad generalities because with respect to criminal liability,
Speaker 1: it's going to turn on the evidence that is relevant
Speaker 1: to each defendant. And in this particular case, with respect
Speaker 1: to Rhodse and Meg's, there was compelling evidence of their
Speaker 1: involvement in a seditious conspiracy. So that evidence was largely
Speaker 1: their own words in various text messages and other communications.
Speaker 1: So that was the most compelling evidence against them that really,
Speaker 1: I think caused the jury to find them guilty. So
Speaker 1: the question is going to be, with respect of future
Speaker 1: cases and the four defendants in this upcoming case on
Speaker 1: seditious conspiracy, does the government have similar compelling evidence coming
Speaker 1: from their own words and their own statements and their
Speaker 1: own admissions. And so that's a critical question moving forward.
Speaker 1: We talked before about Stuart Rhodes being a graduate of
Speaker 1: Yelled Law School and deciding to take the stand in
Speaker 1: his own defense. Do you think that helped him at
Speaker 1: all with some of the charges he was found not
Speaker 1: guilty of. Well, it certainly didn't. Didn't help him with
Speaker 1: the most serious church you know, seditious conspiracy. So it's
Speaker 1: always a risk, it's a major risk whenever a defendant
Speaker 1: decides to testify in his own offense. Of course they
Speaker 1: have that right to do so, but it carries a
Speaker 1: substantial downside, and that is that the government then is
Speaker 1: going to be able to cross examine the witness, and
Speaker 1: that evidence that they used a cross examined could be
Speaker 1: very damaging against the defendant. And that was the case
Speaker 1: with Stuart Rhodes. I mean they confronted him time and
Speaker 1: time again with his own statements that again suggested that
Speaker 1: he was engaged in this conspiracy to use violence to
Speaker 1: prevent the peaceful transfer of power and the certification of
Speaker 1: the Electoral College votes. So yeah, I mean, it may
Speaker 1: have helped him with a couple of charges, but I think,
Speaker 1: to be honest with you, maybe it been of fitted
Speaker 1: him with the lesser charges. But you look at what
Speaker 1: I consider to be that the two most serious charge,
Speaker 1: or the sedition charge and the obstruction of official proceedings charge,
Speaker 1: which both carry a twenty years sentence, and he was
Speaker 1: convicted of both of those. The defendants attorneys said they're
Speaker 1: going to appeal. Any appellate issues stand out to you, No,
Speaker 1: not really, it'll be interesting to see. I mean, of course,
Speaker 1: the defense council is always going to say that, you know,
Speaker 1: we're going to appeal, and they certainly have a right
Speaker 1: to do so, but you're really, in reality, it's it's
Speaker 1: very rare and kind of extraordinary where the Court of
Speaker 1: Appeals will find that there was prejudice at the trial
Speaker 1: that would justify overturning the conviction of those cases are
Speaker 1: very rare, and there's nothing about the proceedings in this case,
Speaker 1: no major issue, no major controversial issue, a major procedural
Speaker 1: or of an injury issue that would cause me to
Speaker 1: believe that any of these convictions are going to be overturned.
Speaker 1: Throughout the trial, prosecutors highlighted the defendants links to key
Speaker 1: allies of former President Trump, such as Roger Stone Alley,
Speaker 1: Alex Ender, Michael Flynn, an attorney Sidney Powell, and Rudy Giuliani,
Speaker 1: and Rhodes. Attorney James Lee Bright said he expects the
Speaker 1: Justice Department to take this mixed verdict as a sign
Speaker 1: to move full speed ahead with prosecutions against others allegedly
Speaker 1: involved in planning January six. Do you agree with that? Yeah?
Speaker 1: I do. I think at the end of the day,
Speaker 1: even though it was a mixed verdie and the jury
Speaker 1: didn't convict all defendants and all charges, the reality is
Speaker 1: this is still a major victory for the Department of Justice.
Speaker 1: And I don't care how you try to spend it,
Speaker 1: you can't spend it away from that result. And so
Speaker 1: I think it's certainly going to encourage and in bolden
Speaker 1: the Department of Justice to move forward in a very
Speaker 1: aggressive manner. And then with respect to the cooperation, you know,
Speaker 1: the question is, well, what evidence might these five defendants
Speaker 1: or other defendants have that would be of value to
Speaker 1: the Department of Justice. So do they have valuable evidence
Speaker 1: against Roger Stone as a member of the conspiracy to
Speaker 1: commit sedition? What about Steve Bannon? What about Michael Flynn?
Speaker 1: What about Johnny Man. I do think that someone like
Speaker 1: Stuart Rhodes might have valuable, credible evidence to implicate these
Speaker 1: individuals and perhaps others in conspiratorial conduct. The question always
Speaker 1: ends up being will Trump be prosecuted by the Justice
Speaker 1: Department in this case? The defense lawyers said that nothing
Speaker 1: in all the information they got implicated Trump. Yeah, that's
Speaker 1: that's a very good point. It's a very good question.
Speaker 1: And so we don't want to read too much into
Speaker 1: these verdicts, and so well, again it's a major victory
Speaker 1: for further Department of Justice. I mean, I still think
Speaker 1: there's a long ways to go in terms of establishing
Speaker 1: sufficient evidence or in criminal charges against former President Trump,
Speaker 1: at least based upon the evidence that's been made available
Speaker 1: to the public. And even if Stuart Rhodes decided to
Speaker 1: cooperate fully cooperate with the Department of Justice, then the
Speaker 1: question is, does he have any any evidence, direct evidence,
Speaker 1: credible evidence that would directly implicate Trump. And that's a
Speaker 1: big question mark, and you know, I wouldn't want to
Speaker 1: speculate on that point. So for those that say, oh, well,
Speaker 1: now you know this verdict is really going to open
Speaker 1: the door to bringing criminal charges against former President Trump,
Speaker 1: I don't think we're there yet, and I think that
Speaker 1: at this point is premature to make those those types
Speaker 1: of claims. At the press conference, there are questions for
Speaker 1: Attorney General Merrick Garland about whether having a special counsel
Speaker 1: appointed is slowing down the investigation. That's a question that's
Speaker 1: been posed so many times and is there a real
Speaker 1: rush here? Well, the problem is is that we're now
Speaker 1: close to two years, you know, from the January six insurrection,
Speaker 1: and now with the appointment of a of a special council,
Speaker 1: I don't think there's any question that it's going to
Speaker 1: delay the investigation, which of course is going to delay
Speaker 1: any possible criminal charges. The real question for me is
Speaker 1: how long as the appointment of special council going to
Speaker 1: lay the proceedings? And it could be substantial, it could
Speaker 1: be a substantial delay and and and the reality is,
Speaker 1: I mean, we may not have a decision one way
Speaker 1: or the other even up to elections. I mean, it's
Speaker 1: it's conceivable. And I think that as we get closer
Speaker 1: and closer to the election, and of course, if former
Speaker 1: President Trump is the Republican nominee, I think that the
Speaker 1: Department of Justice is probably going to be even less
Speaker 1: inclined to bring criminal charges that would influence certainly the
Speaker 1: the outcome of the presidential election. And so I think
Speaker 1: this process is likely going to be delayed for a
Speaker 1: significant period of time and maybe even beyond election. It
Speaker 1: seems like they could move forward on Moral Lago, on
Speaker 1: the Moral Lago documents, because that's a sort of confined investigation. Yeah,
Speaker 1: I think a couple of things. So I think that's
Speaker 1: an excellent point. Coupled with, you know, maybe where the
Speaker 1: public is focusing too much on the Department of Justice investigation,
Speaker 1: and maybe in terms of criminal charges being brought, you know,
Speaker 1: sooner rather than later, those are going to be coming
Speaker 1: from state jurisdiction, stuff from the Department of Justice. So
Speaker 1: we may be looking at criminal charges coming out of Georgia,
Speaker 1: criminal charges coming out of New York, you know, before
Speaker 1: any federal criminal charges, if any, are filed by the
Speaker 1: Department of Justice. So maybe that should be the proper focus. Finally,
Speaker 1: there was a question about the January six Committee not
Speaker 1: giving all the transcripts and information to the Justice Department.
Speaker 1: What is their motive for holding back on those There's
Speaker 1: a couple of concerns, are I suspect, and that is,
Speaker 1: you know, maybe there's some concern that if these documents,
Speaker 1: these transcripts or discloses, somehow they may be leaked, and
Speaker 1: that would would interfere and obstruct the Congressional January six
Speaker 1: Committee investigation. So but again that that that's very speculative,
Speaker 1: you know, kind of kind of looking to, you know,
Speaker 1: what's the justification, trying to come up with some explanation
Speaker 1: for that. But on the other hand, what trouble to
Speaker 1: me too is that why is an Apartment of Justice
Speaker 1: having to rely upon a congressional committee to assist to
Speaker 1: them in their investigation. Why is it that the Congressional
Speaker 1: committee is taking the lead on this rather than the
Speaker 1: Department of Justice should be the other way around. Should
Speaker 1: be a Department of Justice that should be moving forward
Speaker 1: at at a more assertive, aggressive manner with respect to
Speaker 1: these serious, serious allegations. They shouldn't be reliant on on
Speaker 1: any congressional committee to assist them in their investigation. I mean,
Speaker 1: look at the resources, look at the look at the manpower,
Speaker 1: look at the the assets, you know, the FBI and
Speaker 1: d o J prosecutors that are available to assist in
Speaker 1: this investigation. And so I I don't find very I'm
Speaker 1: not very sympathetic to d o j's criticism that, oh,
Speaker 1: somehow their investigation is being delayed because the January six
Speaker 1: Committee is not fully complying. They should be taking the
Speaker 1: lead on this, and they shouldn't be relying upon a
Speaker 1: congre national committee to do their work. Good point, Thanks
Speaker 1: so much, Jimmy. That's Professor Jimmy Garule of Notre Dame
Speaker 1: Law School. The Senate has passed legislation to enshrine federal
Speaker 1: protection for same sex marriages, with a bipartisan vote that
Speaker 1: demonstrates the dramatic cultural shift in this country on the issue.
Speaker 1: The six to thirty six vote on Tuesday was a
Speaker 1: victory for Democrats, who have raised concerns that the conservative
Speaker 1: leaning Supreme Court could overturn the right to same sex
Speaker 1: marriage in the same way that it overturned the constitutional
Speaker 1: right to abortion in the Jobs decision. President Joe Biden
Speaker 1: has repeatedly expressed concern over the implications of the decision.
Speaker 1: The reasoning of this decision has an impact much beyond
Speaker 1: row and to the right to privacy more generally. Joining
Speaker 1: me is Michael Dorff, a professor of constitutional law and
Speaker 1: Cornell Law School, to talk about his recent article, Well
Speaker 1: the Supreme Court respect the Respect for Marriage Act? Explain
Speaker 1: why despite what Justice Alito wrote in the majority opinion
Speaker 1: in Dabbs. You feel that Justice Thomas was correct that
Speaker 1: the logic of Dobbs threatens O Burgha fell. The primary
Speaker 1: argument offered by Justice Alito and the majority opinion in
Speaker 1: Dobbs is that abortion was not deeply rooted in history
Speaker 1: and tradition as a constitutional right, and therefore Roe v.
Speaker 1: Wade was not just wrongly decided, but egregiously. So. It's
Speaker 1: true that when he comes to distinguishing other rights, he
Speaker 1: says that those other rights do not destroy a human
Speaker 1: life or a potential human life, but that distinction is
Speaker 1: something of a non sequitur, because that's not his primary
Speaker 1: basis for rejecting the right to abortion. The primary basis
Speaker 1: for rejecting the right is the lack of deep historical roots.
Speaker 1: And one could certainly say the same thing about same
Speaker 1: sex marriage, and for that matter, other rights such as
Speaker 1: interracial marriage, such as contraception, etcetera. And therefore Justice Thomas
Speaker 1: I think, does have a point when he says in
Speaker 1: his concurring opinion, I agree with the majority, and we
Speaker 1: should apply this same rationale to those other precedents and
Speaker 1: overrule them as well. As you point out the justices
Speaker 1: in the Dobbs majority who were on the court in Roberts, Thomas,
Speaker 1: and Alito all dissented in O. Burger Fell. Does that
Speaker 1: give us pause to think that they'll be ready to
Speaker 1: overturn O. Berger Fell? I think probably not. With respect
Speaker 1: to Chief Justice Roberts, who I should say I characterized
Speaker 1: in a column as in the Dobbs majority, and he
Speaker 1: was in the adopts majority with respect to the outcome,
Speaker 1: but he didn't join Justice Alito's opinion. And more general,
Speaker 1: I don't think Chief Justice Roberts is especially opposed to
Speaker 1: the outcome of A Burgher felt. He is uh seemed
Speaker 1: to have made his peace with it. I do think
Speaker 1: Justices Thomas and Alito would be prepared to overrule A
Speaker 1: Burger Felt. Certainly. Justice Thomas said as much in his
Speaker 1: Dobb's concurrence, And while Justice Alito didn't say that, I
Speaker 1: think that all he was saying was that this case
Speaker 1: doesn't overrule a Burgher felt. If enough of his colleagues
Speaker 1: were willing to reconsider it, I don't doubt that he
Speaker 1: would be in the majority to overturn. Did Justice Thomas
Speaker 1: mentioned interracial marriage when he was talking about cases that
Speaker 1: might be reversed? He did not, But I think Justice
Speaker 1: Thomas would say, as probably most of the justices in
Speaker 1: the majority would say, that the right interracial marriage recognize
Speaker 1: in Loving against Virginia can be independently justified as a
Speaker 1: matter of equal protection. So Justice Thomas has said that
Speaker 1: he doesn't think there's any constitutional right to marry at all,
Speaker 1: but I think he would probably say that if the
Speaker 1: state does recognize marriages, it can't discriminate on the basis
Speaker 1: of race because that would deny equal protection. So I
Speaker 1: don't think that interracial marriage is really at risk because
Speaker 1: it's independently protected by a different constitutional right. Now, explain
Speaker 1: what the Respect for Marriage Act does. The Second Marriage
Speaker 1: Act does three main things. First, it says that the
Speaker 1: definition of marriage for purposes of federal law, for example,
Speaker 1: federal income tax law, depends on whether a couple are
Speaker 1: married under state law. So if a same sex couple
Speaker 1: is married under Massachusetts law and they live in Massachusetts,
Speaker 1: then on their federal taxes, they're married for federal purposes.
Speaker 1: The second thing it does is it says that even
Speaker 1: if the state doesn't want to recognize same sex marriage
Speaker 1: on its own, it must give recognition to same sex
Speaker 1: marriages of people who were married in another state, and
Speaker 1: that includes both couples who lived in another state where
Speaker 1: same sex marriage was legal and then moved to the
Speaker 1: new state. Let's say they moved from New York to Louisiana.
Speaker 1: If Louisiana were to outlast same sex marriage after a
Speaker 1: burgher Fell were overruled, they would have to be treated
Speaker 1: as married by Louisiana, and so would a couple from
Speaker 1: Louisiana who went to New York to get married there. So,
Speaker 1: in that sense, it effectively makes it possible to have
Speaker 1: a same sex marriage anywhere in the country, at least
Speaker 1: if one is willing to travel to another state to
Speaker 1: get married and one has the wherewithal to do it.
Speaker 1: The third thing it does, and this is different in
Speaker 1: the Senate version that just passed from the original House version,
Speaker 1: is it includes a provision that allows nonprofit religious organizations
Speaker 1: to decline to provide services, accommodations, goods, et cetera to
Speaker 1: the wedding that of a same sex couple. The Respect
Speaker 1: from Marriage Act, why doesn't it require states to recognize
Speaker 1: same sex marriage no matter where the marriage is performed.
Speaker 1: Probably because it's not clear that Congress has the power
Speaker 1: to do that. The powers of Congress are set out
Speaker 1: in the Constitution, mostly in Article one, Section eight, but
Speaker 1: a few other places, and family law is generally deemed
Speaker 1: a matter of state law that is reserved to the
Speaker 1: states by the Tenth Amendment. So Congress probably doesn't have
Speaker 1: the affirmative power to create a nationwide law of marriage
Speaker 1: in the same way that it doesn't have the affirmative
Speaker 1: power to create a nationwide law of divorce or child
Speaker 1: custody or any of a number of other things. That's
Speaker 1: not to say there isn't federal power in the area, right,
Speaker 1: And so when federal power is being exercised, as for example,
Speaker 1: with respect to the tax code, and it implicates marriage,
Speaker 1: then the federal government can step in either with its
Speaker 1: own definition or as under the Respect for Marriage Act,
Speaker 1: and indeed under the current law by accepting the state definition.
Speaker 1: And why doesn't the full Faith and Credit clause require
Speaker 1: states to recognize marriages performed in other states even without
Speaker 1: this new law the r M A. Well, arguably it does,
Speaker 1: but there has long been a recognized exception to full
Speaker 1: faith and credit not expressly included in Article four of
Speaker 1: the Constitution, which is where that clause appears, but recognized
Speaker 1: by courts that states can refuse to recognize marriages and
Speaker 1: other provisions of state law where it violates the state's
Speaker 1: own public policy. To give us you have a relatively
Speaker 1: uncontroversial example. Imagine that a state recognizes child marriage, as
Speaker 1: California actually does, with the consent of parents. And so
Speaker 1: you have a twelve year old or a thirteen year
Speaker 1: old who's married in California, and then they move move
Speaker 1: to a state that sets as a minimum age for
Speaker 1: marriage sixteen or eighteen or something like that. The state
Speaker 1: would be entitled to use its public policy exception to say, well,
Speaker 1: you might be married in California, but here we regard
Speaker 1: that as against our public policy. So the key way
Speaker 1: in which the r m A is lacking then is
Speaker 1: that it doesn't give the protection that oh Burgherfel gives
Speaker 1: two marriages performed anywhere in the country. Yes, that's right.
Speaker 1: It doesn't mandate that every state legalize same sex marriage
Speaker 1: performed in that state, but it effectively reproduces much of
Speaker 1: that except as I say, and this is perhaps a
Speaker 1: pretty big exception, except for couples who can't afford to
Speaker 1: travel to another state, potentially a distant one. Because states
Speaker 1: tend to clump geographically with respect to social issues. So
Speaker 1: if they can't afford to travel to a state where
Speaker 1: the same six marriage is recognized, then they can't get
Speaker 1: married in their home state. So in that sense that
Speaker 1: that is a big difference. So now that the sane
Speaker 1: focus of your piece is whether the Supreme Court would
Speaker 1: respect the Respect for Marriage Act, So tell us about
Speaker 1: your conclusions there. Well, my conclusion is that if you
Speaker 1: straightforwardly apply the existing precedent, the answer is yes with
Speaker 1: respect to all three of the key elements of the
Speaker 1: r m A. First, Congress has wide latitude to define
Speaker 1: the meaning of terms in federal statutes, and sometimes it
Speaker 1: expressly does that. There's an actually a federal statute that
Speaker 1: goes by the name of the Dictionary Act that defines
Speaker 1: various words in all federal statutes unless particular context suggests otherwise.
Speaker 1: But it's also quite common that federal law will piggyback
Speaker 1: on state law in the way that the r m
Speaker 1: A does. I think there's a very little chance of
Speaker 1: the Supreme Court would say that that's unconstitutional. I think
Speaker 1: there's also very little chance that the Court would say
Speaker 1: that the provision giving religious nonprofit organizations are right to
Speaker 1: opt out of providing services is unconstitutional. Indeed, the only
Speaker 1: way this issue would arise is if the Supreme Court
Speaker 1: overrules a burgher Fell, and if a court that would
Speaker 1: be willing to do that would welcome such an exception.
Speaker 1: The only place where there is the tiniest bit of
Speaker 1: wiggle room, I suppose, is with respect to the obligation
Speaker 1: of states to recognize out of state same sex marriages.
Speaker 1: And they're most of the cases involving limits on full
Speaker 1: faith and credit have involved divorced and there are other
Speaker 1: contexts in which Congress has exercised its power to, as
Speaker 1: it says an article for decide the effect of full
Speaker 1: faith and credit or out of state acts. But there's
Speaker 1: not a whole lot of law on that, And so
Speaker 1: one could imagine a sort of willful Supreme Court that
Speaker 1: really really doesn't like same sex marriage, denying Congress the
Speaker 1: power to mandate interstate recognition. I don't think that's likely.
Speaker 1: I also don't think it's likely that the Supreme Court
Speaker 1: would over rule a burgher Felt. But I make that
Speaker 1: judgment based mostly on the psychology of the particular justices,
Speaker 1: And if I'm wrong about the psychology with respect to
Speaker 1: their wanting to over rule a burgh Felt, I could
Speaker 1: be wrong about how faithful they would be to existing
Speaker 1: precedent regarding full faith and credit. Tell us a little
Speaker 1: bit more about the psychology of the different justices. Well,
Speaker 1: you know, what we're really asking is to what extent
Speaker 1: is oh burgher Felt a reflection of the values of
Speaker 1: the justices. I think it's fair to say that when
Speaker 1: Chief Justice Robert's dissented in obergha Fell, he wasn't saying
Speaker 1: and he wasn't acting on a view that opposes the
Speaker 1: same sex marriage as a policy matter. I take him
Speaker 1: at his word when he says that he thinks this
Speaker 1: is probably, you know, a perfectly fine development, and he
Speaker 1: has he has no difficulty with it. To put it differently,
Speaker 1: it's not really a culture warrior. He was dissenting on
Speaker 1: jurisprudential principles. On the other hand, I think that some
Speaker 1: of the justices, especially Justices Thomas and Alito, regard same
Speaker 1: sex marriage in much the way that other social conservatives do.
Speaker 1: That is, they oppose it, and so they would think
Speaker 1: that it's not just wrong as a matter of interpreting
Speaker 1: the Constitution, but that it leads to bad results. Now
Speaker 1: In deciding whether to overrule a decision, the Court takes
Speaker 1: account of how well reasoned the case was, but also
Speaker 1: somewhat intangible factors, like what they think of the prior president,
Speaker 1: whether they think it's a good idea bad idea, of
Speaker 1: harmful effects not harmful effect. On the current Court, I
Speaker 1: certainly count Chief Justice Roberts and Justice Gore Such as
Speaker 1: being perfectly fine with same sex marriage. I say that
Speaker 1: about Justice Course Such because he wrote the opinion of
Speaker 1: the Court in the Boss Dot case a couple of
Speaker 1: years ago, holding that the Federal Statutory Employment Discrimination Statute
Speaker 1: forbids sexual orientation discrimination and gender identity discrimination in virtue
Speaker 1: of its prohibition of sex discrimination. So I don't see
Speaker 1: him as having any kind of a beef with same
Speaker 1: sex marriage. And I think I make the same judgment
Speaker 1: probably about Justice Kavanaugh and Barrett. So I really only
Speaker 1: count two and maybe only one justice who are itching
Speaker 1: to over rule oor burgher Felt. But as I say,
Speaker 1: what I've just done is to sort of analyze the
Speaker 1: individual justices based on what I infer are their normative preferences,
Speaker 1: rather than just giving you an account of the logical
Speaker 1: implications of all the legal principles. And that's what I
Speaker 1: mean when I say this is a kind of psychological
Speaker 1: rather than a strictly legal analysis. So let me ask
Speaker 1: you another psychological question. Perhaps there's a great fear since
Speaker 1: the dabbs this vision that the super conservative majority on
Speaker 1: this court is going to lay waste to precedent in
Speaker 1: cases this term from you know, affirmative action, the Voting
Speaker 1: Rights Act giving state legislature's unprecedented power to up end
Speaker 1: federal elections. Do you think that people are right to
Speaker 1: be concerned? Yes, in each of the three cases you
Speaker 1: just identified, they're actually four because there are two affirmative
Speaker 1: action cases. I think that it is not only possible
Speaker 1: but likely that they will reach very conservative results. I
Speaker 1: think they will forbid all or almost all race based
Speaker 1: affirmative action. I think they will further constrain the Voting
Speaker 1: Rights Act. And I have somewhat less confident and I
Speaker 1: therefore I'm a little bit more hopeful with respect to
Speaker 1: what they're going to do in more against Harper, the
Speaker 1: case involving the so called independence date legislature theory. But
Speaker 1: I know that based on what various of the conservative
Speaker 1: justices of in other contexts that they're at least sympathetic
Speaker 1: to some version of this idea that a state legislature
Speaker 1: can decide for itself how to allocate its electors in
Speaker 1: a presidential election, or, as in this particular case, is involved,
Speaker 1: gets the final say over the drawing of district lines,
Speaker 1: notwithstanding the intervention of a state supreme court based on
Speaker 1: the state constitution. One last question. A New Market Law
Speaker 1: School poll finds only of adults approve of the job
Speaker 1: the Supreme Court is doing, while fifty disapprove. But those
Speaker 1: approval numbers are actually up a bit from September where
Speaker 1: approved and six disapproved. What's happened between September and now
Speaker 1: to lead to a bit more approval of the court.
Speaker 1: Public opinion polling about the Supreme Court is notoriously weird
Speaker 1: because people don't have a lot of information about the
Speaker 1: Supreme Court. They often don't really understand and the meaning
Speaker 1: of cases. If I had to guess, I would say
Speaker 1: that the decline in disapproval of the Supreme Court reflects
Speaker 1: the fact that more time has elapsed since the Dawb's opinion,
Speaker 1: which was the last very salient mention of the Supreme Court.
Speaker 1: It's also possible that it reflects us about affirmative action.
Speaker 1: Affirmative action has been unpopular for a couple of decades now,
Speaker 1: so that even blue states like Michigan and California number
Speaker 1: of years ago forbade it by ballot initiative. So insofar
Speaker 1: as there was news reporting that the Supreme Court is
Speaker 1: considering making affirmative action unlawful, I can see how that
Speaker 1: would lead to a slight uptick in approval rating for
Speaker 1: the Court. Thanks so much, Mike for those insights. That's
Speaker 1: Professor Michael Dorff of Cornell Law School. Remember you can
Speaker 1: always get the latest legal news on our Bloomberg Law podcast.
Speaker 1: You can find them on Apple Podcasts, Spotify and at
Speaker 1: ww doul you dot Bloomberg dot com, slash podcast Slash Law.
Speaker 1: I'm Jim Grosso, and you're listening to Bloomberg