WEBVTT - Baseball, Snowballs and Scalia at SCOTUS Arguments

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<v Speaker 1>This is Bloomberg Law with June Grasso from Bloomberg Radio.

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<v Speaker 1>The Supreme Court justice is grapple with the original meaning

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<v Speaker 1>of the word seizure in the Fourth Amendment in a

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<v Speaker 1>case where a woman was shot in the back by

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<v Speaker 1>police as she drove away in her car, an escape

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<v Speaker 1>that can limit her legal options to sue the police

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<v Speaker 1>for excessive force. There was a parade of hypotheticals from

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<v Speaker 1>many of the geostice is who subscribed to originalism, that is,

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<v Speaker 1>interpreting the Constitution based on its original meaning at the

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<v Speaker 1>time was adopted. Here are jostice As, Clarence Thomas, Samuel Alito,

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<v Speaker 1>and Neil Gorsuch. It's a baseball picture intentionally beans the batter.

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<v Speaker 1>When we say, wow, that picture just seized the batter.

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<v Speaker 1>If someone is hit with a projectile and does not stop,

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<v Speaker 1>let's say a rock, a snowball as a stone, would

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<v Speaker 1>that be uh an arrest on a seizure under your

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<v Speaker 1>analysis or your approach. There were bazookas going off there.

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<v Speaker 1>There's all sorts of mass of show of force. But

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<v Speaker 1>he doesn't stop. He keeps going. He's blasting through a

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<v Speaker 1>hundred miles an hour, and he blasts through and on

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<v Speaker 1>he goes Zuoka is firing everywhere. Much of the questioning

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<v Speaker 1>centered on a president Hodari v. California written by originalist

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<v Speaker 1>icon Justice Anton and Scalia that said the application of

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<v Speaker 1>physical force, whether or not it's subdued the arrestee, was

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<v Speaker 1>sufficient for a seizure. Here are Justice is Brett Kavanaugh

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<v Speaker 1>and Sonya So to mayor perspect to Hadari, I think

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<v Speaker 1>there are two issues. First, was Justice Scalia right in

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<v Speaker 1>the discussion? And then second is the precedent question on

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<v Speaker 1>the first question whether he was right. Um, you're arguing,

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<v Speaker 1>as I understand it, the Justice Scalia and really all

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<v Speaker 1>nine justices in that case, we're wrong about the original

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<v Speaker 1>meaning of the Fourth Amendment. Excuse me, counsel, No, you're

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<v Speaker 1>asking us two reject the clear line drawn by Herdari

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<v Speaker 1>and say that Justice Scalia was wrong about what the

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<v Speaker 1>common law showed. My guest is former federal prosecutor George

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<v Speaker 1>Newhouse of Richard's Carrington. George, the lower courts blocked the

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<v Speaker 1>plaintiff from suing the police in this case, explain why

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<v Speaker 1>the Fourth Amendment, which bars unreasonable searches and seizures, is

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<v Speaker 1>so crucial to her case. Well, it's an interesting and

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<v Speaker 1>unique question. And of course the ultimate legal question is

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<v Speaker 1>did the police officer she's excessive forced in trying to

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<v Speaker 1>stop her? But under the Fourth Amendment, is that a

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<v Speaker 1>seizure when the police don't actually prevent you, stop you,

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<v Speaker 1>they don't lay hands on you. In this case, they

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<v Speaker 1>shot at her car thirteen times and hit her twice,

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<v Speaker 1>but she didn't stop. She kept on driving, and she drove,

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<v Speaker 1>in fact, for another seventy miles, stole another car, and

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<v Speaker 1>didn't get to the hospital until the next day. So

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<v Speaker 1>the argument before the Supreme Court was whether or not

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<v Speaker 1>she had been seized within the definition of the Fourth Amendment.

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<v Speaker 1>That makes a difference because if she has a Fourth

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<v Speaker 1>Amendment claim, rather than to do process claim, she has

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<v Speaker 1>an easier time establishing damages against the officers. So that's

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<v Speaker 1>what the court was wrestling with, Is this a seizure?

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<v Speaker 1>And there really is no case, no prior historical precedent

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<v Speaker 1>that's on point. There were all kinds of unusual hypotheticals.

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<v Speaker 1>What were they trying to get at? We're trying to

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<v Speaker 1>make an interesting point where and Alito actually also asked

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<v Speaker 1>whether a person shot by a sniper a thousand yards

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<v Speaker 1>away has been seized when the bullet enters their body, suggesting,

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<v Speaker 1>of course, that he couldn't possibly believe that the answer

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<v Speaker 1>would be yet, these were rhetorical questions, but they're trying

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<v Speaker 1>to get at is normally for there to be a seizure,

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<v Speaker 1>and police have to either lay hands on you, physically

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<v Speaker 1>restrain you for at least a moment, or issue an

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<v Speaker 1>edict in halt, and you obey their command, and you are,

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<v Speaker 1>in that sense detained or seized within the Fourth Amendment.

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<v Speaker 1>And here neither of those occurred. They shot at her

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<v Speaker 1>and tried to stop her, but you might put it

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<v Speaker 1>this way, it was more of an attempted seizure. Had

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<v Speaker 1>they shot her in the cart up, then there clearly

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<v Speaker 1>would have been a seizure within the context of the

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<v Speaker 1>Fourth Amendo. So Chief Justice Roberts and Alito peppered the

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<v Speaker 1>lawyer for the plaintiff with these interesting hypotheticals, including the

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<v Speaker 1>one that if a batter is hit by a pitched ball,

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<v Speaker 1>has the batter been seized? And of course the answer

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<v Speaker 1>is non so for the original lists on the court.

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<v Speaker 1>The plaintiff said that this is the ordinary meaning at

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<v Speaker 1>the time of the Founders that back then seizure included

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<v Speaker 1>seizures of goods and arrests. So why didn't the original

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<v Speaker 1>lists on the court seem to buy that argument. Well,

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<v Speaker 1>the problem is that you have a factual situation that

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<v Speaker 1>was not typical indeed contemplated at the time of the Founders.

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<v Speaker 1>So the discussion during the oral argument was over a

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<v Speaker 1>common law issues about when bailiffs and merry Old England

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<v Speaker 1>would try to enforce debts. In some cases they would

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<v Speaker 1>reach in through a window and grab the debt or

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<v Speaker 1>and in that sense to restrain them, so that would

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<v Speaker 1>be a seizure. But here, as the Justice has pointed out,

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<v Speaker 1>two years ago, there were no police and there were

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<v Speaker 1>very few firearms being used in law enforcement. So this

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<v Speaker 1>whole issue about when the police fire weapons and hits you,

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<v Speaker 1>have you been seized within the definition of the Fourth

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<v Speaker 1>Amendment seems clear to me based upon the oral argument

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<v Speaker 1>that Aldo and the conservative textualists are going to be

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<v Speaker 1>disinclined to accept this argument. They're going to say, look,

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<v Speaker 1>there only sees if you stop and you obey the

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<v Speaker 1>command or your physically disabled, and neither of those occurred. Here.

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<v Speaker 1>A huge point of contention in This argument was over

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<v Speaker 1>an opinion by Justice Scalia from thirty years ago, where

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<v Speaker 1>his reasoning supports the conclusion that this shooting was a seizure.

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<v Speaker 1>So was the question whether that was dicta that doesn't

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<v Speaker 1>have to be followed. You're right that dicta, which is

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<v Speaker 1>to say, is language in a court opinion that is

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<v Speaker 1>not central or essential for beholding. And that's really the

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<v Speaker 1>question about Scalia's opinion that odoris what happened in that case,

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<v Speaker 1>of course, was a young and believed by the police

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<v Speaker 1>to be engaged in a drug deal, and the police

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<v Speaker 1>officer approached him, and like the woman in our case here,

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<v Speaker 1>he took off running and the police officer ran after him, shouting,

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<v Speaker 1>and he did not stop. And while he was fleeing,

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<v Speaker 1>he reached genders pocket and through the the rock of

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<v Speaker 1>cocaine down on the ground. And the question was was

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<v Speaker 1>he sees at the time that they drugs were disposed of?

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<v Speaker 1>And the holding there was he was not. So there's

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<v Speaker 1>language in the opinion that everyone agreed seems to apply

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<v Speaker 1>to the case. But Scale's reasoning is not necessarily binding

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<v Speaker 1>on the court, just because the facts of that case

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<v Speaker 1>are quite different. Really, as you know, Justice Scalia was

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<v Speaker 1>a great example of a very conservative judge whose jurisprudence

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<v Speaker 1>when it came to Fourth Amendment issues sometimes was very unpredictable.

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<v Speaker 1>He would frequently rule against the police, and the Solicitor

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<v Speaker 1>General's office was arguing in favor of the plaintiff and

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<v Speaker 1>against the police officers. Here a remarkable turn and in fact,

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<v Speaker 1>the Department of Justice position in Hodari was different than

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<v Speaker 1>it was in this case. So the Justice has asked

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<v Speaker 1>her about whether or not Department of Justice was changing

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<v Speaker 1>its position, which is a remarkable turnaround. So what's your

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<v Speaker 1>take on how the justices might rule? Very hard to

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<v Speaker 1>predict based upon the question's asset or arguments, how the

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<v Speaker 1>justices are going to come out. So my prediction is

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<v Speaker 1>if they look at this and they say, what did

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<v Speaker 1>the framers have in mind when they use the word seized.

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<v Speaker 1>They didn't use the word struck, they didn't use other

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<v Speaker 1>words that were broader, and the seizure again him the

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<v Speaker 1>common law, the textualists would say, involves a direct touching

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<v Speaker 1>of the officers or a command to stop that is obeyed,

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<v Speaker 1>and lacking either of those two, this was not a seizure.

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<v Speaker 1>It may have been an excessive use of force, but

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<v Speaker 1>the Fourth Amendment requiring a seizure would not be implicated.

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<v Speaker 1>And of course, at the moment the textualists have the votes.

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<v Speaker 1>That's probably whey the Supreme Court will come out. Thanks George.

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<v Speaker 1>That's George Newhouse of Richard's Carrington coming up next. Female

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<v Speaker 1>Supreme Court advocates are finding an unusual route to the

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<v Speaker 1>High Court. I'm Jim Gross and you're listening to Bloomberg.

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<v Speaker 1>Still hear argument this morning in case the United States

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<v Speaker 1>Patent and Trademark Office versus Booking Dot com Ms Ross,

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<v Speaker 1>Mr Chief Justice, and may it please the Court? Thank

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<v Speaker 1>you counsel, uh Miss Tableton, Mr Chifssice, and may it

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<v Speaker 1>please the Court, Thank you counsel. Miss corkran three minutes

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<v Speaker 1>for rebuttal, Thank you, your honor. So you hear the

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<v Speaker 1>voices of more female attorneys at the Supreme Court than

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<v Speaker 1>in past decades. Women advocates are still fairly rare at

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<v Speaker 1>the Court, and the percentage of women attorneys has gone

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<v Speaker 1>down since when it reached the highest in history. So

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<v Speaker 1>many women are taking a less traditional route to the court.

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<v Speaker 1>Joining me is Kimberly Strawbridge, Robinson, Bloomberg Law Supreme Court

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<v Speaker 1>reporter Gimberally, women argued between twelve percent and of the

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<v Speaker 1>time in recent terms. That does seem fairly low compared

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<v Speaker 1>to the number of women attorneys there are. That does.

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<v Speaker 1>And actually, one thing that I think really hits at

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<v Speaker 1>home for me is the court hands out these day

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<v Speaker 1>call chiefs, and it's just with all the attorneys that

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<v Speaker 1>are going to be arguing in cases that day. And

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<v Speaker 1>I remember there were more Jonathans who were arguing in

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<v Speaker 1>the Supreme Court one day, there were three than women

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<v Speaker 1>who are arguing just too. So I think that's just

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<v Speaker 1>an example of how this really is kind of an

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<v Speaker 1>imbalance between men and women in a place where it

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<v Speaker 1>really doesn't seem like there should be. Now, why has

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<v Speaker 1>the traditional launchpad for Supreme Court women advocates than the

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<v Speaker 1>Solicitor General's Office, Well, it's because the Solicitor General's Office

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<v Speaker 1>argued so many more cases than any other entity or

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<v Speaker 1>law firm that comes before the justices. They tend to

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<v Speaker 1>argue about half of the cases that come before the justices,

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<v Speaker 1>and that's a lot of opportunities for arguments, and so

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<v Speaker 1>we've seen traditionally that that's where men and women tend

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<v Speaker 1>to get their first Spreme Court arguments is through that office,

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<v Speaker 1>and that's maybe changing a little bit now. The number

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<v Speaker 1>of cases argued by women has fallen in recent years.

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<v Speaker 1>The high water mark was in sixteen and then it

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<v Speaker 1>started plummeting in seventeen. Why Well, there were a number

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<v Speaker 1>of women who left the Solicitor General's Office, longtime veterans

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<v Speaker 1>like Sarah Harrington and Nicole's the Harskey who have argued

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<v Speaker 1>between them dozens of cases, and they left right as

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<v Speaker 1>the Obama administration was heading out and the Trump administration

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<v Speaker 1>was heading in. It seems like the Trump administration had

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<v Speaker 1>some difficulty from getting women to join the office, but

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<v Speaker 1>it does seem like they are making some strides in

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<v Speaker 1>that area. Now. We saw the first attorney to argue

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<v Speaker 1>on behalf of the Solicitor General's Office this term was

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<v Speaker 1>a woman making her first Supreme Court argument. So how

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<v Speaker 1>are more private firms becoming a launchpad for women advocates

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<v Speaker 1>at the Supreme Court. Well, we're seeing a handful of

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<v Speaker 1>women advocates who are getting their first arguments not through

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<v Speaker 1>the Solicitor General's Office but in firm. And the women

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<v Speaker 1>I talked to who had gone this route, said that

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<v Speaker 1>it was a mark of achievement because it's hard to

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<v Speaker 1>get a case in a firm because you not only

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<v Speaker 1>have to convince your bosses that you're up to the death,

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<v Speaker 1>but also the clients in a way that you don't

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<v Speaker 1>have to when you're in the Solicitor General's office. So

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<v Speaker 1>if we do see women arguing more cases from law firms,

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<v Speaker 1>but again the numbers are still really out of whack.

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<v Speaker 1>Most attorneys who come from private practice are men and

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<v Speaker 1>not women. I found this fascinating. The women you spoke

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<v Speaker 1>to said, you not only need a mentor, but the

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<v Speaker 1>mentor basically has to convince the client to let you

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<v Speaker 1>argue that's right. And you know that was the one

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<v Speaker 1>thing of all the women that I talked to you.

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<v Speaker 1>They all said, you need to have a mentor, and

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<v Speaker 1>you need to have a mentor who will be willing

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<v Speaker 1>to go to bad for you with the clients and

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<v Speaker 1>who will be willing to let you work closely enough

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<v Speaker 1>with clients that when the time comes to make deploy,

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<v Speaker 1>for you to make the argument that the client is

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<v Speaker 1>comfortable with you and letting you take on very high

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<v Speaker 1>stakes argument. Speaking about how difficult it is just to

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<v Speaker 1>get a Supreme Court case. You spoke to Sarah Harris,

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<v Speaker 1>who is going to have her first case before the

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<v Speaker 1>Supreme Court next month, and she said that many Supreme

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<v Speaker 1>Court practitioners would rather give up an appendage than an

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<v Speaker 1>argument opportunity. So really you're fighting two different battles. It

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<v Speaker 1>does seem that way. And a lot of times we'll

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<v Speaker 1>see a men from a particular firm arguing three or

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<v Speaker 1>four or five cases in the term, and there won't

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<v Speaker 1>be any women or any other attorneys from that term

0:12:28.520 --> 0:12:30.840
<v Speaker 1>who argue in that year, although there certainly are a

0:12:30.880 --> 0:12:33.560
<v Speaker 1>lot of other attorneys working on those cases. But that

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<v Speaker 1>does seem to be changing. We see a lot of

0:12:36.160 --> 0:12:38.959
<v Speaker 1>men mentors who are really trying to change that, who

0:12:39.160 --> 0:12:42.160
<v Speaker 1>understand that that is a problem and seek for ways

0:12:42.200 --> 0:12:44.840
<v Speaker 1>to get other attorneys, not just women, to get arguments

0:12:44.880 --> 0:12:47.920
<v Speaker 1>as well. Are many of the women who argued a

0:12:47.920 --> 0:12:51.199
<v Speaker 1>lot of cases sort of the veterans, now are they

0:12:51.320 --> 0:12:55.079
<v Speaker 1>mentoring women? They are so. One of the women that

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<v Speaker 1>I talked to in particular, that she was mentoring women

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<v Speaker 1>like crazy, that there were so few women partners around

0:13:01.160 --> 0:13:03.680
<v Speaker 1>that they really was up to her on her shoulders

0:13:03.760 --> 0:13:06.640
<v Speaker 1>to mentor more than her fair share of them, But

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<v Speaker 1>I think they all see it as an honor and

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<v Speaker 1>not really a duty. All of them want to see

0:13:11.840 --> 0:13:14.600
<v Speaker 1>more women in the Supreme Court space, and all of

0:13:14.640 --> 0:13:17.600
<v Speaker 1>them want to help young lawyers to get there. Does

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<v Speaker 1>one firm stand out as having more women in its

0:13:21.120 --> 0:13:24.880
<v Speaker 1>Supreme Court practice than others? While there are handful of

0:13:25.160 --> 0:13:27.480
<v Speaker 1>law firms that seem to have gotten a leg up

0:13:27.480 --> 0:13:29.600
<v Speaker 1>on this, and Williams and Connelly, which not only has

0:13:29.720 --> 0:13:32.560
<v Speaker 1>Sarah Harris but has Leasa Black leading the way. We

0:13:32.640 --> 0:13:35.640
<v Speaker 1>see Aaron Murphy from Kurt Crowne and Ellis who worked

0:13:35.640 --> 0:13:38.760
<v Speaker 1>with the superstar of the Supreme Court, Paul Clement. And

0:13:38.760 --> 0:13:42.120
<v Speaker 1>we see other places like Rick and Wilmer, Hale and

0:13:42.200 --> 0:13:44.560
<v Speaker 1>Hoven and Level putting out not just women, but a

0:13:44.559 --> 0:13:47.160
<v Speaker 1>lot of other diverse and young attorneys up at the

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<v Speaker 1>Spreme Court. Thanks Kimberly. That's Bloomberg Law Supreme Court reporter

0:13:51.040 --> 0:13:55.400
<v Speaker 1>Kimberly Strawbridge Robinson. I'm June Grosso. Thanks so much for listening,

0:13:55.679 --> 0:13:58.160
<v Speaker 1>and please tune into The Bloomberg Law Show every weeknight

0:13:58.200 --> 0:14:14.319
<v Speaker 1>at ten BM Eastern on Bloomberg Radio m HM HM