Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: The Supreme Court justice is grapple with the original meaning
Speaker 1: of the word seizure in the Fourth Amendment in a
Speaker 1: case where a woman was shot in the back by
Speaker 1: police as she drove away in her car, an escape
Speaker 1: that can limit her legal options to sue the police
Speaker 1: for excessive force. There was a parade of hypotheticals from
Speaker 1: many of the geostice is who subscribed to originalism, that is,
Speaker 1: interpreting the Constitution based on its original meaning at the
Speaker 1: time was adopted. Here are jostice As, Clarence Thomas, Samuel Alito,
Speaker 1: and Neil Gorsuch. It's a baseball picture intentionally beans the batter.
Speaker 1: When we say, wow, that picture just seized the batter.
Speaker 1: If someone is hit with a projectile and does not stop,
Speaker 1: let's say a rock, a snowball as a stone, would
Speaker 1: that be uh an arrest on a seizure under your
Speaker 1: analysis or your approach. There were bazookas going off there.
Speaker 1: There's all sorts of mass of show of force. But
Speaker 1: he doesn't stop. He keeps going. He's blasting through a
Speaker 1: hundred miles an hour, and he blasts through and on
Speaker 1: he goes Zuoka is firing everywhere. Much of the questioning
Speaker 1: centered on a president Hodari v. California written by originalist
Speaker 1: icon Justice Anton and Scalia that said the application of
Speaker 1: physical force, whether or not it's subdued the arrestee, was
Speaker 1: sufficient for a seizure. Here are Justice is Brett Kavanaugh
Speaker 1: and Sonya So to mayor perspect to Hadari, I think
Speaker 1: there are two issues. First, was Justice Scalia right in
Speaker 1: the discussion? And then second is the precedent question on
Speaker 1: the first question whether he was right. Um, you're arguing,
Speaker 1: as I understand it, the Justice Scalia and really all
Speaker 1: nine justices in that case, we're wrong about the original
Speaker 1: meaning of the Fourth Amendment. Excuse me, counsel, No, you're
Speaker 1: asking us two reject the clear line drawn by Herdari
Speaker 1: and say that Justice Scalia was wrong about what the
Speaker 1: common law showed. My guest is former federal prosecutor George
Speaker 1: Newhouse of Richard's Carrington. George, the lower courts blocked the
Speaker 1: plaintiff from suing the police in this case, explain why
Speaker 1: the Fourth Amendment, which bars unreasonable searches and seizures, is
Speaker 1: so crucial to her case. Well, it's an interesting and
Speaker 1: unique question. And of course the ultimate legal question is
Speaker 1: did the police officer she's excessive forced in trying to
Speaker 1: stop her? But under the Fourth Amendment, is that a
Speaker 1: seizure when the police don't actually prevent you, stop you,
Speaker 1: they don't lay hands on you. In this case, they
Speaker 1: shot at her car thirteen times and hit her twice,
Speaker 1: but she didn't stop. She kept on driving, and she drove,
Speaker 1: in fact, for another seventy miles, stole another car, and
Speaker 1: didn't get to the hospital until the next day. So
Speaker 1: the argument before the Supreme Court was whether or not
Speaker 1: she had been seized within the definition of the Fourth Amendment.
Speaker 1: That makes a difference because if she has a Fourth
Speaker 1: Amendment claim, rather than to do process claim, she has
Speaker 1: an easier time establishing damages against the officers. So that's
Speaker 1: what the court was wrestling with, Is this a seizure?
Speaker 1: And there really is no case, no prior historical precedent
Speaker 1: that's on point. There were all kinds of unusual hypotheticals.
Speaker 1: What were they trying to get at? We're trying to
Speaker 1: make an interesting point where and Alito actually also asked
Speaker 1: whether a person shot by a sniper a thousand yards
Speaker 1: away has been seized when the bullet enters their body, suggesting,
Speaker 1: of course, that he couldn't possibly believe that the answer
Speaker 1: would be yet, these were rhetorical questions, but they're trying
Speaker 1: to get at is normally for there to be a seizure,
Speaker 1: and police have to either lay hands on you, physically
Speaker 1: restrain you for at least a moment, or issue an
Speaker 1: edict in halt, and you obey their command, and you are,
Speaker 1: in that sense detained or seized within the Fourth Amendment.
Speaker 1: And here neither of those occurred. They shot at her
Speaker 1: and tried to stop her, but you might put it
Speaker 1: this way, it was more of an attempted seizure. Had
Speaker 1: they shot her in the cart up, then there clearly
Speaker 1: would have been a seizure within the context of the
Speaker 1: Fourth Amendo. So Chief Justice Roberts and Alito peppered the
Speaker 1: lawyer for the plaintiff with these interesting hypotheticals, including the
Speaker 1: one that if a batter is hit by a pitched ball,
Speaker 1: has the batter been seized? And of course the answer
Speaker 1: is non so for the original lists on the court.
Speaker 1: The plaintiff said that this is the ordinary meaning at
Speaker 1: the time of the Founders that back then seizure included
Speaker 1: seizures of goods and arrests. So why didn't the original
Speaker 1: lists on the court seem to buy that argument. Well,
Speaker 1: the problem is that you have a factual situation that
Speaker 1: was not typical indeed contemplated at the time of the Founders.
Speaker 1: So the discussion during the oral argument was over a
Speaker 1: common law issues about when bailiffs and merry Old England
Speaker 1: would try to enforce debts. In some cases they would
Speaker 1: reach in through a window and grab the debt or
Speaker 1: and in that sense to restrain them, so that would
Speaker 1: be a seizure. But here, as the Justice has pointed out,
Speaker 1: two years ago, there were no police and there were
Speaker 1: very few firearms being used in law enforcement. So this
Speaker 1: whole issue about when the police fire weapons and hits you,
Speaker 1: have you been seized within the definition of the Fourth
Speaker 1: Amendment seems clear to me based upon the oral argument
Speaker 1: that Aldo and the conservative textualists are going to be
Speaker 1: disinclined to accept this argument. They're going to say, look,
Speaker 1: there only sees if you stop and you obey the
Speaker 1: command or your physically disabled, and neither of those occurred. Here.
Speaker 1: A huge point of contention in This argument was over
Speaker 1: an opinion by Justice Scalia from thirty years ago, where
Speaker 1: his reasoning supports the conclusion that this shooting was a seizure.
Speaker 1: So was the question whether that was dicta that doesn't
Speaker 1: have to be followed. You're right that dicta, which is
Speaker 1: to say, is language in a court opinion that is
Speaker 1: not central or essential for beholding. And that's really the
Speaker 1: question about Scalia's opinion that odoris what happened in that case,
Speaker 1: of course, was a young and believed by the police
Speaker 1: to be engaged in a drug deal, and the police
Speaker 1: officer approached him, and like the woman in our case here,
Speaker 1: he took off running and the police officer ran after him, shouting,
Speaker 1: and he did not stop. And while he was fleeing,
Speaker 1: he reached genders pocket and through the the rock of
Speaker 1: cocaine down on the ground. And the question was was
Speaker 1: he sees at the time that they drugs were disposed of?
Speaker 1: And the holding there was he was not. So there's
Speaker 1: language in the opinion that everyone agreed seems to apply
Speaker 1: to the case. But Scale's reasoning is not necessarily binding
Speaker 1: on the court, just because the facts of that case
Speaker 1: are quite different. Really, as you know, Justice Scalia was
Speaker 1: a great example of a very conservative judge whose jurisprudence
Speaker 1: when it came to Fourth Amendment issues sometimes was very unpredictable.
Speaker 1: He would frequently rule against the police, and the Solicitor
Speaker 1: General's office was arguing in favor of the plaintiff and
Speaker 1: against the police officers. Here a remarkable turn and in fact,
Speaker 1: the Department of Justice position in Hodari was different than
Speaker 1: it was in this case. So the Justice has asked
Speaker 1: her about whether or not Department of Justice was changing
Speaker 1: its position, which is a remarkable turnaround. So what's your
Speaker 1: take on how the justices might rule? Very hard to
Speaker 1: predict based upon the question's asset or arguments, how the
Speaker 1: justices are going to come out. So my prediction is
Speaker 1: if they look at this and they say, what did
Speaker 1: the framers have in mind when they use the word seized.
Speaker 1: They didn't use the word struck, they didn't use other
Speaker 1: words that were broader, and the seizure again him the
Speaker 1: common law, the textualists would say, involves a direct touching
Speaker 1: of the officers or a command to stop that is obeyed,
Speaker 1: and lacking either of those two, this was not a seizure.
Speaker 1: It may have been an excessive use of force, but
Speaker 1: the Fourth Amendment requiring a seizure would not be implicated.
Speaker 1: And of course, at the moment the textualists have the votes.
Speaker 1: That's probably whey the Supreme Court will come out. Thanks George.
Speaker 1: That's George Newhouse of Richard's Carrington coming up next. Female
Speaker 1: Supreme Court advocates are finding an unusual route to the
Speaker 1: High Court. I'm Jim Gross and you're listening to Bloomberg.
Speaker 1: Still hear argument this morning in case the United States
Speaker 1: Patent and Trademark Office versus Booking Dot com Ms Ross,
Speaker 1: Mr Chief Justice, and may it please the Court? Thank
Speaker 1: you counsel, uh Miss Tableton, Mr Chifssice, and may it
Speaker 1: please the Court, Thank you counsel. Miss corkran three minutes
Speaker 1: for rebuttal, Thank you, your honor. So you hear the
Speaker 1: voices of more female attorneys at the Supreme Court than
Speaker 1: in past decades. Women advocates are still fairly rare at
Speaker 1: the Court, and the percentage of women attorneys has gone
Speaker 1: down since when it reached the highest in history. So
Speaker 1: many women are taking a less traditional route to the court.
Speaker 1: Joining me is Kimberly Strawbridge, Robinson, Bloomberg Law Supreme Court
Speaker 1: reporter Gimberally, women argued between twelve percent and of the
Speaker 1: time in recent terms. That does seem fairly low compared
Speaker 1: to the number of women attorneys there are. That does.
Speaker 1: And actually, one thing that I think really hits at
Speaker 1: home for me is the court hands out these day
Speaker 1: call chiefs, and it's just with all the attorneys that
Speaker 1: are going to be arguing in cases that day. And
Speaker 1: I remember there were more Jonathans who were arguing in
Speaker 1: the Supreme Court one day, there were three than women
Speaker 1: who are arguing just too. So I think that's just
Speaker 1: an example of how this really is kind of an
Speaker 1: imbalance between men and women in a place where it
Speaker 1: really doesn't seem like there should be. Now, why has
Speaker 1: the traditional launchpad for Supreme Court women advocates than the
Speaker 1: Solicitor General's Office, Well, it's because the Solicitor General's Office
Speaker 1: argued so many more cases than any other entity or
Speaker 1: law firm that comes before the justices. They tend to
Speaker 1: argue about half of the cases that come before the justices,
Speaker 1: and that's a lot of opportunities for arguments, and so
Speaker 1: we've seen traditionally that that's where men and women tend
Speaker 1: to get their first Spreme Court arguments is through that office,
Speaker 1: and that's maybe changing a little bit now. The number
Speaker 1: of cases argued by women has fallen in recent years.
Speaker 1: The high water mark was in sixteen and then it
Speaker 1: started plummeting in seventeen. Why Well, there were a number
Speaker 1: of women who left the Solicitor General's Office, longtime veterans
Speaker 1: like Sarah Harrington and Nicole's the Harskey who have argued
Speaker 1: between them dozens of cases, and they left right as
Speaker 1: the Obama administration was heading out and the Trump administration
Speaker 1: was heading in. It seems like the Trump administration had
Speaker 1: some difficulty from getting women to join the office, but
Speaker 1: it does seem like they are making some strides in
Speaker 1: that area. Now. We saw the first attorney to argue
Speaker 1: on behalf of the Solicitor General's Office this term was
Speaker 1: a woman making her first Supreme Court argument. So how
Speaker 1: are more private firms becoming a launchpad for women advocates
Speaker 1: at the Supreme Court. Well, we're seeing a handful of
Speaker 1: women advocates who are getting their first arguments not through
Speaker 1: the Solicitor General's Office but in firm. And the women
Speaker 1: I talked to who had gone this route, said that
Speaker 1: it was a mark of achievement because it's hard to
Speaker 1: get a case in a firm because you not only
Speaker 1: have to convince your bosses that you're up to the death,
Speaker 1: but also the clients in a way that you don't
Speaker 1: have to when you're in the Solicitor General's office. So
Speaker 1: if we do see women arguing more cases from law firms,
Speaker 1: but again the numbers are still really out of whack.
Speaker 1: Most attorneys who come from private practice are men and
Speaker 1: not women. I found this fascinating. The women you spoke
Speaker 1: to said, you not only need a mentor, but the
Speaker 1: mentor basically has to convince the client to let you
Speaker 1: argue that's right. And you know that was the one
Speaker 1: thing of all the women that I talked to you.
Speaker 1: They all said, you need to have a mentor, and
Speaker 1: you need to have a mentor who will be willing
Speaker 1: to go to bad for you with the clients and
Speaker 1: who will be willing to let you work closely enough
Speaker 1: with clients that when the time comes to make deploy,
Speaker 1: for you to make the argument that the client is
Speaker 1: comfortable with you and letting you take on very high
Speaker 1: stakes argument. Speaking about how difficult it is just to
Speaker 1: get a Supreme Court case. You spoke to Sarah Harris,
Speaker 1: who is going to have her first case before the
Speaker 1: Supreme Court next month, and she said that many Supreme
Speaker 1: Court practitioners would rather give up an appendage than an
Speaker 1: argument opportunity. So really you're fighting two different battles. It
Speaker 1: does seem that way. And a lot of times we'll
Speaker 1: see a men from a particular firm arguing three or
Speaker 1: four or five cases in the term, and there won't
Speaker 1: be any women or any other attorneys from that term
Speaker 1: who argue in that year, although there certainly are a
Speaker 1: lot of other attorneys working on those cases. But that
Speaker 1: does seem to be changing. We see a lot of
Speaker 1: men mentors who are really trying to change that, who
Speaker 1: understand that that is a problem and seek for ways
Speaker 1: to get other attorneys, not just women, to get arguments
Speaker 1: as well. Are many of the women who argued a
Speaker 1: lot of cases sort of the veterans, now are they
Speaker 1: mentoring women? They are so. One of the women that
Speaker 1: I talked to in particular, that she was mentoring women
Speaker 1: like crazy, that there were so few women partners around
Speaker 1: that they really was up to her on her shoulders
Speaker 1: to mentor more than her fair share of them, But
Speaker 1: I think they all see it as an honor and
Speaker 1: not really a duty. All of them want to see
Speaker 1: more women in the Supreme Court space, and all of
Speaker 1: them want to help young lawyers to get there. Does
Speaker 1: one firm stand out as having more women in its
Speaker 1: Supreme Court practice than others? While there are handful of
Speaker 1: law firms that seem to have gotten a leg up
Speaker 1: on this, and Williams and Connelly, which not only has
Speaker 1: Sarah Harris but has Leasa Black leading the way. We
Speaker 1: see Aaron Murphy from Kurt Crowne and Ellis who worked
Speaker 1: with the superstar of the Supreme Court, Paul Clement. And
Speaker 1: we see other places like Rick and Wilmer, Hale and
Speaker 1: Hoven and Level putting out not just women, but a
Speaker 1: lot of other diverse and young attorneys up at the
Speaker 1: Spreme Court. Thanks Kimberly. That's Bloomberg Law Supreme Court reporter
Speaker 1: Kimberly Strawbridge Robinson. I'm June Grosso. Thanks so much for listening,
Speaker 1: and please tune into The Bloomberg Law Show every weeknight
Speaker 1: at ten BM Eastern on Bloomberg Radio m HM HM