WEBVTT - Justice Alito Ridicules World Leaders 0:00:04.440 --> 0:00:09.240 This is Bloombird Law with June Bresso from Bloomberg Radio. 0:00:10.720 --> 0:00:14.040 In his first public remarks since authoring the opinion that 0:00:14.200 --> 0:00:19.080 wiped out the constitutional right to abortion, Justice Samuel Alito 0:00:19.160 --> 0:00:22.720 mocked the world leaders who criticized that opinion in a 0:00:22.800 --> 0:00:26.360 speech at a religious liberty summit in Rome. I had 0:00:26.440 --> 0:00:29.960 the honor this term of writing, I think the only 0:00:30.040 --> 0:00:34.320 Supreme Court decision in the history of that institution that 0:00:34.360 --> 0:00:38.680 has been land based by a whole string of foreign leaders. 0:00:39.320 --> 0:00:44.199 One of these was former Prime Minister Boris Johnson. But 0:00:44.280 --> 0:00:48.159 he paid the price. My guest is constitutional law scholar 0:00:48.280 --> 0:00:52.720 Kim Whaley, a professor at the University of Baltimore Law School. Kim, 0:00:52.720 --> 0:00:55.760 this seems so out of character for Supreme Court justice. 0:00:56.320 --> 0:01:00.360 I can't remember another justice or even a judge who 0:01:00.440 --> 0:01:05.120 ridiculed world leaders publicly. Well, I'm not entirely surprised, because 0:01:05.120 --> 0:01:08.760 he made a pretty shocking speech in to the Federal 0:01:08.920 --> 0:01:13.360 Society where he really crossed some lines of independence. But 0:01:13.440 --> 0:01:16.119 of course, you know, getting into sort of the international 0:01:16.200 --> 0:01:20.360 political arena in that way, so deliberately making fun of 0:01:20.640 --> 0:01:24.399 Boris Johnson and the royal family, etcetera. But what really 0:01:24.760 --> 0:01:28.039 bothered me about it is that he introduced the topic 0:01:28.120 --> 0:01:31.919 of saying he had quote the honor of writing unquote 0:01:32.200 --> 0:01:35.679 this opinion that is jobbed that was lambasted the honor, 0:01:35.959 --> 0:01:39.440 when meanwhile he seems to just shrug off the fact 0:01:39.720 --> 0:01:43.160 that tends, if not hundreds of thousands of women and 0:01:43.240 --> 0:01:47.480 girls are horrified by this, and many will be physically 0:01:47.880 --> 0:01:52.240 and emotionally and psychologically and personally deeply affected in negative 0:01:52.240 --> 0:01:55.240 ways by virtue of what he says was an honor. 0:01:55.360 --> 0:01:58.040 So that just rubbed me wrong as as a person 0:01:58.480 --> 0:02:02.160 tripping with sarcasm. He called it the decision whose name 0:02:02.280 --> 0:02:05.960 may not be spoken. It's such a contrast to the 0:02:06.040 --> 0:02:11.320 kind of careful, discreete speeches Supreme Court justices usually give. 0:02:11.760 --> 0:02:14.600 And he had to know that his remarks would be 0:02:14.639 --> 0:02:18.080 picked up around the world. Was that his intention or 0:02:18.120 --> 0:02:22.079 you know what was his intention? Well, I'm no psychologist, 0:02:22.240 --> 0:02:26.320 but the level of defensiveness and the sarcasm, to me 0:02:26.960 --> 0:02:31.600 reveals some deep insecurities as a personal matter, because people 0:02:32.120 --> 0:02:35.360 who are confident in their decision making, particularly when it 0:02:35.400 --> 0:02:38.320 comes to something so somber and important. You know, he 0:02:38.360 --> 0:02:42.160 opened his job's opinion talking about how abortion is a 0:02:42.240 --> 0:02:45.520 moral issue that he would address it in such a 0:02:45.560 --> 0:02:48.920 trivial way, take it so personally that people take issue 0:02:49.160 --> 0:02:52.320 with this, you know, landmark ruling that reverse fifty years 0:02:52.320 --> 0:02:55.240 of precedent and as I said, withdraws for the first 0:02:55.240 --> 0:02:59.040 time in American history and established individual constitutional right and 0:02:59.040 --> 0:03:01.120 effects women and girl. I think it was more of 0:03:01.120 --> 0:03:05.280 an insight into kind of how potentially small he feels 0:03:05.360 --> 0:03:07.320 as a person that he has to do that, rather 0:03:07.400 --> 0:03:11.000 than something that he can think be lauded for respected 0:03:11.040 --> 0:03:13.680 for it. You know, it makes me uncomfortable to even 0:03:14.040 --> 0:03:16.760 hear that, given his stature as a Supreme Court justice 0:03:16.760 --> 0:03:19.560 and know that someone is in that positions that had 0:03:19.639 --> 0:03:22.840 that kind of low self esteem. Frankly, Supreme Court Justice 0:03:23.000 --> 0:03:26.840 Alito has a history of not behaving with the decorum 0:03:26.880 --> 0:03:30.360 we'd expect of a Supreme Court justice. We all remember 0:03:30.400 --> 0:03:33.160 his shaking his head and mouthing the words not true 0:03:33.840 --> 0:03:37.360 during President Obama's State of the Union address when he 0:03:37.440 --> 0:03:41.720 criticized the Citizens United decision. And he also mocked the 0:03:41.800 --> 0:03:45.720 late Justice Ruth Bader Ginsburg by pursing his lips and 0:03:46.080 --> 0:03:48.640 shaking his head and rolling his eyes as she read 0:03:48.680 --> 0:03:53.400 a descent from the bench in so is this perhaps 0:03:53.480 --> 0:03:56.680 par for the course for him well as a constitutional 0:03:56.760 --> 0:04:00.080 law professor and thinker. If you look at act with 0:04:00.160 --> 0:04:02.200 the substance of what he said and again what he 0:04:02.240 --> 0:04:06.200 said in at this Federal Society speech, I mean, it 0:04:06.240 --> 0:04:11.280 looks like Justice Alito really believes that religion and I 0:04:11.320 --> 0:04:15.080 would guess, based on his comments Christianity, because he seemed 0:04:15.320 --> 0:04:18.279 aghast that a ten year old would not know who 0:04:18.440 --> 0:04:21.039 Jesus was, and talked about an image of Jesus in 0:04:21.080 --> 0:04:23.320 Germany and he was stunned that the child didn't know 0:04:23.360 --> 0:04:24.839 what that was. I mean, I think there are plenty 0:04:24.839 --> 0:04:28.320 of Christians that would not know iconic images from other religions, 0:04:28.360 --> 0:04:31.360 for example. It looks like he really has this personal 0:04:31.440 --> 0:04:35.760 sense that religion is under assault that is almost irrational, right. 0:04:35.920 --> 0:04:40.200 He talks about how people and he even sort of 0:04:40.320 --> 0:04:43.159 made a nod to his colleagues them assuming the progressives 0:04:43.320 --> 0:04:46.760 want no special protection for religion, he said, and he 0:04:46.880 --> 0:04:51.280 compared those who aren't staunch believers in you know, protecting 0:04:51.320 --> 0:04:54.599 religion even in the public sphere. That's his position. He 0:04:54.839 --> 0:04:57.720 compared them to you know, Green Bay packers fans, and 0:04:57.800 --> 0:05:01.360 the idea that people who don't adhere to his strong 0:05:01.480 --> 0:05:05.880 view of Christianity as central to American culture and society, 0:05:06.080 --> 0:05:09.400 as somehow thinking of religion as a sports team, and 0:05:09.440 --> 0:05:12.320 that's just not true. I think the other justices and 0:05:12.360 --> 0:05:15.920 people that care about this issue, and most Americans understand 0:05:15.920 --> 0:05:18.560 there's a there's a line to be drawn between the 0:05:18.640 --> 0:05:21.880 free exercise clause and what we know is the establishment clause. 0:05:21.920 --> 0:05:24.839 And in two cases this term, the court whittled down 0:05:24.880 --> 0:05:27.520 the establishment clause. I think what we're going to see, frankly, 0:05:28.000 --> 0:05:31.440 is religion back in government. And when you hear Justice Alito, 0:05:31.640 --> 0:05:34.480 he's doing more than calling balls and strikes under the law, 0:05:34.640 --> 0:05:37.080 which is really what the role of judges are in 0:05:37.120 --> 0:05:39.480 the federal system, because they're not elected, and he really 0:05:39.480 --> 0:05:42.839 believes he's on some bigger mission. He equated not having 0:05:42.880 --> 0:05:47.640 religion and government to potentiality for totalitarianism. He suggested little 0:05:47.640 --> 0:05:51.000 look at the Soviets. They pushed religion out and they fell. 0:05:51.360 --> 0:05:54.280 You know. Of course, he's ignoring places like Afghanistan and 0:05:54.320 --> 0:05:57.520 the Taliban, where religion has been used to justify tremendous 0:05:57.600 --> 0:06:00.520 human rights violation. And he spends a lot of time 0:06:00.560 --> 0:06:05.440 talking about the protections under International Code for certain individual 0:06:05.520 --> 0:06:08.000 rights and liberties, and he says, you know, religion is there, 0:06:08.080 --> 0:06:11.520 but what about girls and women's rights to bodily autonomy. 0:06:11.560 --> 0:06:15.080 He's really kind of almost off kilter, frankly, in terms 0:06:15.120 --> 0:06:17.440 of what should sound like from a Supreme Court justice 0:06:17.480 --> 0:06:22.839 as neutral, thoughtful, unemotional, un ideological assessment of the law 0:06:22.920 --> 0:06:25.919 and the fact his reference his little tale about the 0:06:25.960 --> 0:06:30.080 crucifix was particularly jarring to me because it seems so 0:06:30.200 --> 0:06:34.360 out of touch with, you know, where the world is nowadays. 0:06:34.360 --> 0:06:38.839 An atheist activist group Freedom from Religion Foundation called his 0:06:38.960 --> 0:06:43.919 comments disturbing. They said Alito appeared to single out nonbelievers 0:06:44.080 --> 0:06:48.960 as implied enemies of religious freedom. Is it appropriate for 0:06:49.080 --> 0:06:53.000 a Supreme Court justice to be sort of proselytizing like that. 0:06:53.600 --> 0:06:55.640 I mean, I agree with that comment. I think that 0:06:55.800 --> 0:06:57.840 is the tone of his remarks is that, you know, 0:06:58.320 --> 0:07:01.400 boo on the people that are not religious, and that's 0:07:01.400 --> 0:07:04.520 a problem for America, that it's religiosity is not as 0:07:04.560 --> 0:07:07.360 fun as center as he would like. Of course, it's inappropriate. 0:07:07.600 --> 0:07:11.840 Of course it's problematic. And it's problematic because the Supreme Court, 0:07:11.880 --> 0:07:15.680 when it construes ambiguous language and the constitution that functions 0:07:15.960 --> 0:07:19.280 like an amendment to the Constitution unless there is an 0:07:19.280 --> 0:07:23.400 actual amendment which requires supermajorities of both Houses of Congress 0:07:23.480 --> 0:07:28.560 and state legislatures. So voters, right voters. It's virtually impossible 0:07:28.600 --> 0:07:31.320 to amend the Constitution through the electoral process. But when 0:07:31.360 --> 0:07:34.400 Justice Alito, you know, and his colleagues get five people 0:07:34.760 --> 0:07:37.840 that are unelected and then they're there for life to 0:07:37.920 --> 0:07:41.160 agree with his interpretation of something like the First Amendment 0:07:41.200 --> 0:07:44.080 or the due process, cause that binds the rest of us. 0:07:44.120 --> 0:07:47.720 And it's inherently antidemocratic, you know, in its worst form, 0:07:47.800 --> 0:07:51.360 it is a recipe for the very totalitarianism that he 0:07:51.440 --> 0:07:54.920 pretends to be rejecting, because there's no accountability. You know, 0:07:55.280 --> 0:07:57.760 people talk a lot these days about January six and 0:07:57.800 --> 0:08:01.160 Donald Trump and how, you know, we're losing our democracy, 0:08:01.160 --> 0:08:03.360 and I'm one of those who say that. But really 0:08:03.400 --> 0:08:06.360 the biggest threat from where I stand is what's happening 0:08:06.360 --> 0:08:08.920 on the United States Supreme Court. That is, these people 0:08:09.120 --> 0:08:12.920 believe that they have this some kind of mandate. And 0:08:13.000 --> 0:08:17.080 maybe for Justice Alito, it's divine to reshape America through 0:08:17.120 --> 0:08:22.400 constitutional interpretation with no buying and no accountability through the voters, 0:08:22.480 --> 0:08:25.960 And in my mind, that's inherently undemocratic rights. The founding 0:08:26.000 --> 0:08:29.920 generations fought and died to not have a single sovereign 0:08:29.920 --> 0:08:33.200 state anymore and to have the people decide. And that's 0:08:33.200 --> 0:08:35.600 not what's happening on this court. These folks are really 0:08:35.640 --> 0:08:38.600 taking you know, it's not a surgical knife, it's a 0:08:38.640 --> 0:08:43.120 machete to longstanding constitutional principles. And so when he feels 0:08:43.160 --> 0:08:46.040 that he can say these things publicly, it just demonstrates 0:08:46.080 --> 0:08:49.199 the belief I think on this majority that's whatever they do, 0:08:49.280 --> 0:08:52.520 there's nothing anyone can do about it. And they're probably right. 0:08:53.160 --> 0:08:56.480 Americans seem to be losing confidence in the Supreme Court. 0:08:56.880 --> 0:09:00.800 According to a recent ap North Pole, forty three of 0:09:00.840 --> 0:09:04.120 Americans have hardly any confidence in the Court at all, 0:09:05.960 --> 0:09:09.960 have only some confidence. Should they take into account the 0:09:10.000 --> 0:09:13.480 fact that people are just losing confidence in the court 0:09:13.559 --> 0:09:19.240 with all these radical decisions that don't respect precedent, of course, 0:09:19.520 --> 0:09:21.760 and that's because it's part of why people talk a 0:09:21.800 --> 0:09:23.480 lot about the rule of law. And this also gets 0:09:23.520 --> 0:09:26.640 to the January sixth situation and the peaceful transfer of power. 0:09:26.760 --> 0:09:28.280 I mean, you know, think about if you've got a 0:09:28.360 --> 0:09:31.080 kid who's in a in a little league and your 0:09:31.120 --> 0:09:34.400 kids team loses, you take them out for pizza and 0:09:34.440 --> 0:09:37.120 you say, you know, next time at a boy it'll 0:09:37.160 --> 0:09:40.160 be better, um or at a girl. Right, um. But 0:09:40.480 --> 0:09:43.400 you don't leave the league. But if it turns out 0:09:43.440 --> 0:09:46.200 that the umpire it's fixed, that the rules of the 0:09:46.200 --> 0:09:49.360 game are unfair, that they're one sided, that their arbitrary, 0:09:49.360 --> 0:09:51.840 that they're ideological, you're not only going to be angry, 0:09:51.960 --> 0:09:55.200 you're gonna pull your kid out. And that's really the 0:09:55.320 --> 0:09:58.800 concern in this moment, and it's across the electoral process 0:09:58.880 --> 0:10:02.000 as well, after money, is that people lose faith in 0:10:02.040 --> 0:10:04.600 our institutions. You know, the Supreme Court doesn't have its 0:10:04.600 --> 0:10:07.120 own army to enforce what it says is the rule 0:10:07.160 --> 0:10:09.559 of law that it gave itself that authority in the 0:10:09.960 --> 0:10:13.000 nineteenth century in a landmark case called Marbury versus Madison. 0:10:13.240 --> 0:10:16.120 What happens if and when people say listen, I don't 0:10:16.160 --> 0:10:18.480 need to listen to the Supreme Court, they're a joke, 0:10:18.640 --> 0:10:21.600 they don't matter. Then what happens to the whole fabric 0:10:21.679 --> 0:10:24.200 and structure of our legal system? And when why do 0:10:24.240 --> 0:10:27.120 we care about that? Because we want to have an 0:10:27.200 --> 0:10:30.600 ordered society, We want to know we can walk outside 0:10:30.640 --> 0:10:34.119 our door and not just be violently sort of assaulted 0:10:34.160 --> 0:10:36.720 by by one of our enemies and have no accountability. 0:10:36.760 --> 0:10:38.880 We want to be people to stop at red lights 0:10:38.960 --> 0:10:40.920 so that our kids are safe when you know they 0:10:40.920 --> 0:10:43.360 get their license. Is succeeding, right. We want to get 0:10:43.360 --> 0:10:45.520 on a plane and not have it crashed into another 0:10:45.559 --> 0:10:49.079 plane or have it hijacked by some domestic terrorists because 0:10:49.120 --> 0:10:51.959 they don't think anything will happen. I mean, the implications 0:10:52.000 --> 0:10:55.160 of this cannot really be overstated. And this is why 0:10:55.480 --> 0:10:57.520 I think it's what people like you know, Justice Soda, 0:10:57.520 --> 0:11:00.240 Miller and Kig and are right have been sounding the 0:11:00.280 --> 0:11:02.320 alarm in some of their descents now for a few 0:11:02.400 --> 0:11:06.560 years that when you degrade the institutions, it's very hard 0:11:06.600 --> 0:11:09.160 to rebuild them. So that the damage that's being done 0:11:09.600 --> 0:11:12.360 I think, you know, by a lego speech, but also 0:11:12.720 --> 0:11:15.920 by what they're doing to the Constitution by rejecting these things. 0:11:16.040 --> 0:11:18.640 It's very very serious. Now, the upside might be that 0:11:18.679 --> 0:11:21.680 now leto speech is drawing attention to the problem on 0:11:21.720 --> 0:11:24.280 the court. Right, if they did this quietly, that might 0:11:24.320 --> 0:11:26.480 be under the radar. And as you know, I've written 0:11:26.800 --> 0:11:30.280 now three books on basic legal literacy. How to read 0:11:30.280 --> 0:11:32.520 the Constitution? Why you know what you need to know 0:11:32.520 --> 0:11:34.319 about body? And why? How do you think like a lawyer? 0:11:34.320 --> 0:11:35.959 And why because if you had to pull a lot 0:11:35.960 --> 0:11:38.400 of Americans, they wouldn't really know what the Supreme Court 0:11:38.480 --> 0:11:41.760 does or how the Constitution works. You know, I think 0:11:41.800 --> 0:11:44.720 historically only a third of Americans could even name the 0:11:44.760 --> 0:11:48.200 three branches of government. So if this triggers greater civic literacy, 0:11:48.440 --> 0:11:50.079 you know, I think that's that's a light in the 0:11:50.160 --> 0:11:54.760 darkness here in this tunnel. Representative Alexandrio Casio Cortez has 0:11:54.800 --> 0:11:58.880 said that this speech, together with the leak of his opinion, 0:11:59.440 --> 0:12:02.520 is SUSPICI and you know, are we ever going to 0:12:02.559 --> 0:12:05.440 find out who leaked that? You know, I don't know. 0:12:05.520 --> 0:12:09.559 And honestly, that is not something that gets me particularly concerned. 0:12:10.160 --> 0:12:14.439 A much much much more concerned with the relationship between 0:12:14.600 --> 0:12:19.240 Jenny Thomas's connections with the anti democratic far right wing 0:12:19.280 --> 0:12:22.640 groups that were behind the carnage on January six and 0:12:22.640 --> 0:12:25.959 are still seeking to cancel elections in America to put 0:12:25.960 --> 0:12:29.640 a minority single party in power indefinitely. There's a lot 0:12:29.640 --> 0:12:33.440 of smoke there. Did she influence her husband in four 0:12:33.520 --> 0:12:37.640 cases involving the election in one in which he was 0:12:37.679 --> 0:12:40.679 the sole dissenter when all Congress wanted to do was 0:12:40.800 --> 0:12:43.960 to get official records from the National Archives, and he said, no, 0:12:44.480 --> 0:12:47.280 That to me is where the energy should go, because 0:12:47.320 --> 0:12:49.720 you know, leaking the opinion is probably not going to 0:12:49.800 --> 0:12:53.560 change the outcome. But having a justice make decisions based 0:12:53.640 --> 0:12:57.040 on influenced by radical groups through his wife, if that 0:12:57.160 --> 0:13:00.280 is the case, that doesn't affect the outcome. And as 0:13:00.280 --> 0:13:02.480 I said earlier, I mean if if he's a deciding 0:13:02.559 --> 0:13:06.160 vote on a revised construction of a critical provision of 0:13:06.200 --> 0:13:10.320 the Constitution that's in place forever and until there's a 0:13:10.320 --> 0:13:13.680 new configuration on the Court, until Congress decides to expand 0:13:13.679 --> 0:13:16.320 the quarter, until there's constitutional amendment, all of which are 0:13:16.320 --> 0:13:18.920 close to impossible. And you know the Court did accept 0:13:19.440 --> 0:13:23.680 this year, Sirchiroory in a case UM that would consider 0:13:23.840 --> 0:13:28.120 a radical view of the election system. UM, the independent 0:13:28.200 --> 0:13:32.160 Legislature's clause right where the idea would be, UM, And 0:13:32.240 --> 0:13:34.480 I think they're probably gonna rule yes, as my guest, 0:13:34.520 --> 0:13:37.839 they wouldn't take the case that only state legislatures can 0:13:37.960 --> 0:13:40.520 decide elections. It can't be state constitutions, it can't be 0:13:40.520 --> 0:13:43.040 state judges. It can't be from governors, it can't be 0:13:43.360 --> 0:13:47.319 anybody that's the legislature delegates authority to and we've got 0:13:47.400 --> 0:13:51.240 jerrymandered legislatures across the country. So that's just to me, 0:13:51.440 --> 0:13:54.480 that is, that's a much bigger issue than the leaked opinion. 0:13:54.520 --> 0:13:57.080 That is, you know, how is Thomas going to rule 0:13:57.640 --> 0:14:01.760 on something that important and the extent to which it's 0:14:01.760 --> 0:14:05.280 affected by Jenny Thomas, who was in contact with Mark 0:14:05.320 --> 0:14:09.080 Meadows and others are urging that they not acknowledge Joe 0:14:09.080 --> 0:14:13.199 Biden clear wind for the presidency. That is much more terrifying, 0:14:13.200 --> 0:14:17.240 and frankly, it's very troubling that the Democrats haven't even 0:14:17.240 --> 0:14:19.600 held hearings on that topic. That case is going to 0:14:19.640 --> 0:14:23.080 be next year's Dabbs. Thanks so much for your insights, Kim. 0:14:23.320 --> 0:14:27.120 That's Professor Kim Whalley of the University of Baltimore Law School. 0:14:28.440 --> 0:14:31.440 In this day of the Mega merger, the Biden administration 0:14:31.520 --> 0:14:36.560 is cracking down on consolidation in industries. Indeed, President Joe 0:14:36.640 --> 0:14:39.880 Biden signed an executive order in July of last year 0:14:40.280 --> 0:14:45.000 directing federal government agencies to enforce the nation's antitrust laws 0:14:45.160 --> 0:14:49.800 and prevent companies from taking advantage of labor and potential competitors. 0:14:50.280 --> 0:14:54.560 I expect the federal agencies and they know this, to 0:14:54.680 --> 0:14:59.680 help restore competition so that we have lower prices, higher wages, 0:14:59.760 --> 0:15:03.560 more money, more options. And the Justice Department is doing 0:15:03.840 --> 0:15:07.360 just that, going to trial to block Penguin Random House, 0:15:07.440 --> 0:15:11.200 the largest US book publisher, from buying Simon and Schuster, 0:15:11.640 --> 0:15:15.480 the fourth largest, for two point eighteen billion dollars. My 0:15:15.520 --> 0:15:20.360 guest is Jennifer Ree, Bloomberg Intelligence senior litigation analyst. So, John, 0:15:20.440 --> 0:15:23.560 the Justice Department is using a rather novel theory here, 0:15:24.000 --> 0:15:27.480 focusing on the impact this merger will have on the 0:15:27.560 --> 0:15:31.640 livelihood of authors and choices for consumers, rather than a 0:15:31.680 --> 0:15:35.040 traditional focus on prices. You know, it's a very interesting 0:15:35.120 --> 0:15:37.960 argument because it is a bit different than a typical 0:15:38.240 --> 0:15:40.960 antitrust argument made to try to block a merger. So 0:15:41.080 --> 0:15:43.040 what they say here is that there will be an 0:15:43.080 --> 0:15:47.080 impact on labor, in other words, authors of anticipated top 0:15:47.120 --> 0:15:49.320 selling books. So these are the authors that come along 0:15:49.360 --> 0:15:51.760 you expect the book to be really big, and these 0:15:51.760 --> 0:15:54.280 publishers are bidding for the rights to that book, and 0:15:54.360 --> 0:15:56.200 you know, they bid against each other and the price 0:15:56.240 --> 0:15:58.840 goes up. And the authors are paid more. So they're 0:15:58.840 --> 0:16:01.320 saying that that kind of head to head competitions boost 0:16:01.360 --> 0:16:03.920 these authors pay, you know, and spurs the publishers to 0:16:04.040 --> 0:16:07.360 give better editorial and marketing services to get those book rights. 0:16:07.440 --> 0:16:10.640 They aren't arguing that people like me or like you 0:16:10.680 --> 0:16:12.360 that go out and buy a book are actually going 0:16:12.400 --> 0:16:14.920 to pay more for a book. That's a more traditional 0:16:14.960 --> 0:16:18.720 antitrust theory. This theory is about labor and what it's 0:16:18.720 --> 0:16:22.160 called as a monopsony theory too few buyers rather than 0:16:22.160 --> 0:16:26.120 too few sellers. So is this a theory that is 0:16:26.200 --> 0:16:28.600 so new the judge will have to decide whether or 0:16:28.640 --> 0:16:31.880 not to accept it? So interestingly, I think it's been 0:16:31.920 --> 0:16:34.800 called very new. I actually don't think of it as new. 0:16:35.160 --> 0:16:38.600 I think the monopsony aspect of mergers has always been 0:16:38.680 --> 0:16:41.320 something that the Department of Justice and Federal Trade Commission 0:16:41.320 --> 0:16:44.320 have thought about and looked at. Where it's new is 0:16:44.360 --> 0:16:47.680 that it's untested in courts. So, in other words, perhaps 0:16:47.680 --> 0:16:50.120 a deal in the past that was challenged that had 0:16:50.160 --> 0:16:52.960 monops in the aspects, really the front and center was 0:16:53.000 --> 0:16:55.960 the monopoly aspect and that was really what was tried, 0:16:56.040 --> 0:16:57.840 and the monops in the aspect was a little bit 0:16:57.880 --> 0:17:01.280 more besides show or where there were monopsony concerns, the 0:17:01.320 --> 0:17:03.880 companies were able to settle with some sort of concessions 0:17:03.960 --> 0:17:05.760 and then get the deal cleared and they never went 0:17:05.800 --> 0:17:08.920 to court. So where this is new is we don't 0:17:08.960 --> 0:17:10.800 have precedent on it, so it's going to be new 0:17:10.840 --> 0:17:14.080 for this District Court judge. Then, is the market they're 0:17:14.240 --> 0:17:19.680 talking about, the market for anticipated best selling books. Yes, 0:17:19.840 --> 0:17:22.280 that's the market they're talking about, and they claim that 0:17:22.280 --> 0:17:26.080 that market really includes only the top five publishers, what 0:17:26.119 --> 0:17:28.280 they call the Big five, and among those Big five 0:17:28.320 --> 0:17:30.919 are Penguin, Random House and Simon and Schuster. So in 0:17:31.000 --> 0:17:34.960 their view, within this market for publishing rights to anticipated 0:17:35.040 --> 0:17:38.480 top selling authors, you have five competitors, and this will 0:17:38.520 --> 0:17:41.480 reduce the five to four. One analysts said it would 0:17:41.520 --> 0:17:46.199 reduce it to one and then three others right, And 0:17:46.200 --> 0:17:48.280 I think the reason for that is because when you 0:17:48.280 --> 0:17:51.240 look at the market shares as a result of the deal, 0:17:51.760 --> 0:17:54.240 this company will be a strong number one, So it 0:17:54.240 --> 0:17:56.200 will not only have the number one spot, as it 0:17:56.200 --> 0:17:59.240 will be pretty far away from the others. Now, according 0:17:59.280 --> 0:18:01.880 to other data I've seen, though, the combined company would 0:18:01.920 --> 0:18:06.920 have about share, And honestly, you know, that's not necessarily 0:18:07.040 --> 0:18:09.560 a share that's in thought in the past to confirm 0:18:09.640 --> 0:18:12.560 market power, you know, usually you're looking for something over 0:18:13.720 --> 0:18:16.560 that's kind of borderline in terms of whether there could 0:18:16.560 --> 0:18:20.240 be market power or anti competitive impact. So, even though 0:18:20.280 --> 0:18:22.439 it does create a big one, I think the d 0:18:22.520 --> 0:18:24.520 o J would be on a bit better footing here 0:18:24.560 --> 0:18:27.359 if that combined share was a little higher. So the 0:18:27.440 --> 0:18:31.560 judge will decide which market she uses exactly. I mean, 0:18:31.560 --> 0:18:33.399 the DJ has to come and I prove that the 0:18:33.440 --> 0:18:36.320 market they're defining is an appropriate market, that that is 0:18:36.359 --> 0:18:39.480 a market in which competition takes place, and it is 0:18:39.560 --> 0:18:43.520 different from let's say, smaller authors. It is a different 0:18:43.560 --> 0:18:46.159 market from the market that the midsize of the smaller 0:18:46.200 --> 0:18:48.760 publishers competence. They're going to have to prove that, and 0:18:48.760 --> 0:18:51.000 I think that could be the crux of it. That 0:18:51.080 --> 0:18:53.679 could be a difficult market to prove. They'll have to 0:18:53.720 --> 0:18:56.679 see what the evidence shows. These two companies claim that 0:18:56.880 --> 0:19:00.280 it's arbitrary and it's kind of a Jerryman or our ument, 0:19:00.560 --> 0:19:02.959 you know, And what the companies say is that in 0:19:03.080 --> 0:19:05.760 each of the past three years, three of the top 0:19:05.800 --> 0:19:09.359 ten highest selling authors were published by publishers outside of 0:19:09.400 --> 0:19:12.000 this big five, and that's one of the examples they 0:19:12.080 --> 0:19:14.600 lay out to say that this market doesn't really make 0:19:14.680 --> 0:19:18.520 sense because you have other smaller publishers that also compete 0:19:18.600 --> 0:19:21.879 for some of these big highest selling authors. Also in 0:19:21.920 --> 0:19:25.600 the defense argument is that this wouldn't lower the price 0:19:26.000 --> 0:19:30.960 that new authors get and wouldn't affect the price for consumers. Right, 0:19:31.160 --> 0:19:33.280 you know, obviously they're going to argue that they're going 0:19:33.320 --> 0:19:36.359 to say there is still sufficient competition out there such 0:19:36.400 --> 0:19:38.680 that when we're bidding for the publication rights for these 0:19:38.720 --> 0:19:41.200 top authors, there will still be plenty of other bidders 0:19:41.200 --> 0:19:43.359 against us, that that author will get the best price 0:19:43.400 --> 0:19:45.800 that they're going to get, and as a result, there 0:19:45.840 --> 0:19:48.399 won't be any impact on the ultimate consumers at the 0:19:48.480 --> 0:19:51.200 end of the line buying the books. And the Justice 0:19:51.200 --> 0:19:53.480 Department is simply going to have to have to prove 0:19:53.520 --> 0:19:55.879 that that is not the case. That there's a potential 0:19:56.080 --> 0:19:58.720 that with fewer bidders, the price won't be a bit 0:19:58.800 --> 0:20:01.200 up as high, and perhaps the result of that could 0:20:01.200 --> 0:20:04.120 be less paid to these authors and fewer books published, 0:20:04.160 --> 0:20:07.280 which would have an impact on consumers. The Justice Department's 0:20:07.400 --> 0:20:10.159 argument sounds logical. I don't know if they have the 0:20:10.240 --> 0:20:12.520 stats to back it up. This is an industry that's 0:20:12.520 --> 0:20:19.359 already undergone consolidation. Penguin Random House, that name shows consolidation, right, 0:20:19.480 --> 0:20:21.840 you know, I think that's one of the most important 0:20:21.840 --> 0:20:25.760 points here. In particular, the Department of Justice has said, 0:20:25.960 --> 0:20:28.040 you know, they really want to broaden out the kinds 0:20:28.080 --> 0:20:30.720 of deals that they challenge and broaden out the antitrust 0:20:30.720 --> 0:20:32.680 approach to mergers, and one of the things they want 0:20:32.720 --> 0:20:35.800 to think about more are just industries that have trended 0:20:35.840 --> 0:20:39.640 toward consolidation that as you see a trend toward consolidation, 0:20:39.680 --> 0:20:41.200 you kind of want to nip it in the bud 0:20:41.240 --> 0:20:44.720 before it gets too far and too consolidated under your nose. 0:20:44.960 --> 0:20:48.000 And you're exactly right. This is an industry that's had 0:20:48.080 --> 0:20:50.600 loads of consolidation in the last couple of years. And 0:20:50.640 --> 0:20:53.800 not only that, this top five companies that the d 0:20:53.880 --> 0:20:57.040 o J is talking about have been accused of colluding 0:20:57.119 --> 0:20:59.320 in the past. And that's another theory the d o 0:20:59.440 --> 0:21:01.800 J will have hate the fewer you have, the more 0:21:01.880 --> 0:21:03.919 likely it is that they can collude in the future. 0:21:04.359 --> 0:21:07.000 One of the first witnesses for the government was best 0:21:07.000 --> 0:21:12.199 selling horror author Stephen King, who testified against his own publisher. 0:21:12.480 --> 0:21:16.200 He said the five biggest publishers have largely squeezed out 0:21:16.240 --> 0:21:20.640 independence shops, making it harder for new authors to make 0:21:20.640 --> 0:21:24.160 it into print. Did the government call King to put 0:21:24.280 --> 0:21:28.280 some sort of celebrity pizzazz into the trial or for 0:21:28.400 --> 0:21:31.800 more substantive reasons. I think it's a little bit of both. 0:21:31.840 --> 0:21:33.840 But I think he can certainly add to the evidence. 0:21:33.840 --> 0:21:36.320 He's been out there publishing for many, many, many years 0:21:36.320 --> 0:21:40.159 before a lot of consolidation, and now after consolidation, he 0:21:40.200 --> 0:21:42.520 can talk about the impact that that's had on him 0:21:42.600 --> 0:21:45.760 or other colleagues that are also authors as the industry 0:21:45.760 --> 0:21:48.920 has become consolidated. But you know, obviously that's just one 0:21:48.960 --> 0:21:51.240 person testifying, and the judge is going to have to 0:21:51.240 --> 0:21:53.080 look at where the weight of the evidence is, and 0:21:53.119 --> 0:21:55.520 that's just a tiny percentage of what will be taken 0:21:55.520 --> 0:21:57.840 in in terms of other testimony as well as the 0:21:57.880 --> 0:22:00.760 company's documents and what those say. But certainly think that 0:22:00.800 --> 0:22:03.040 it's more than just, hey, you know, this makes a 0:22:03.119 --> 0:22:06.359 splash having Stephen King piband. Now if it were a 0:22:06.440 --> 0:22:11.160 jury trial, King's appearance might make more of a difference. Now, 0:22:11.280 --> 0:22:14.880 this has been described as a key test for the 0:22:14.920 --> 0:22:20.640 Biden administrations pushed to expand antitrust enforcement. Do you see 0:22:20.640 --> 0:22:23.119