1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,840 --> 00:00:12,760 Speaker 2: I do not believe that Richard Blossop is innocent. I 3 00:00:12,800 --> 00:00:14,920 Speaker 2: believe him to be guilty, but I believe him to 4 00:00:14,920 --> 00:00:16,280 Speaker 2: not have been given a fair trial. 5 00:00:17,160 --> 00:00:20,720 Speaker 3: This week, the Supreme Court threw out the murder conviction 6 00:00:20,880 --> 00:00:24,640 Speaker 3: and death sentence of Richard Glossop. It was an extremely 7 00:00:24,840 --> 00:00:27,920 Speaker 3: rare victory for a death row inmate at the court, 8 00:00:28,160 --> 00:00:32,800 Speaker 3: but then Glossop's case was extraordinary in many respects. The 9 00:00:32,880 --> 00:00:36,720 Speaker 3: state of Oklahoma appeared on the same side as the defendant, 10 00:00:37,000 --> 00:00:40,879 Speaker 3: arguing that his nineteen ninety seven murder conviction and capital 11 00:00:41,000 --> 00:00:46,479 Speaker 3: sentence should be reversed because of prosecutorial misconduct. The Oklahoma 12 00:00:46,520 --> 00:00:51,120 Speaker 3: Attorney General, Gentner Drummond, who supports the death penalty, had 13 00:00:51,200 --> 00:00:55,680 Speaker 3: made an extraordinary concession known as a confession of error, 14 00:00:55,960 --> 00:01:00,920 Speaker 3: after investigating the case, including the documents that prosecutors had 15 00:01:00,960 --> 00:01:04,520 Speaker 3: withheld from Glossop's attorney. He was represented at the court 16 00:01:04,560 --> 00:01:07,840 Speaker 3: by former US Solicitor General Paul Clement. 17 00:01:08,160 --> 00:01:12,520 Speaker 1: And General Drummond reached the conclusion regretfully, but reached the 18 00:01:12,600 --> 00:01:16,400 Speaker 1: conclusion our prosecutors elicited perjury here and a man's going 19 00:01:16,400 --> 00:01:18,360 Speaker 1: to go to his death. We can't allow that to happen. 20 00:01:18,800 --> 00:01:22,600 Speaker 3: The Supreme Court agreed that the prosecution had violated its 21 00:01:22,760 --> 00:01:27,920 Speaker 3: constitutional obligation to correct the false testimony of its star witness, 22 00:01:28,160 --> 00:01:31,960 Speaker 3: something that would have affected his credibility as justice is 23 00:01:32,000 --> 00:01:36,560 Speaker 3: Elena Kagan and Brett Kavanaugh pointed out during the oral arguments. 24 00:01:36,440 --> 00:01:39,360 Speaker 4: That seems pretty material to me. I mean, it's just 25 00:01:39,560 --> 00:01:42,360 Speaker 4: your one witness has been exposed as a liar. 26 00:01:43,880 --> 00:01:46,279 Speaker 5: Would have made the conviction more likely if the jury 27 00:01:46,319 --> 00:01:49,480 Speaker 5: knows that not only does he have an incentive to lie, 28 00:01:49,480 --> 00:01:53,080 Speaker 5: that he's lied on the stand in that he's bipolar, 29 00:01:53,320 --> 00:01:59,040 Speaker 5: therefore creating all sorts of avenues for questioning his credibility. 30 00:01:59,120 --> 00:02:03,160 Speaker 3: Richard Glossop has faced nine execution dates during his more 31 00:02:03,200 --> 00:02:06,600 Speaker 3: than twenty seven years on death row, and came within 32 00:02:06,760 --> 00:02:10,920 Speaker 3: hours of being executed in twenty fifteen, but prison officials 33 00:02:10,960 --> 00:02:14,799 Speaker 3: discovered they've been given the wrong mix of lethal drugs. 34 00:02:15,080 --> 00:02:18,360 Speaker 3: He'll remain in prison as the state decides whether to 35 00:02:18,440 --> 00:02:21,799 Speaker 3: retry him. Join me as Cliff Sloan. He's a professor 36 00:02:21,800 --> 00:02:25,840 Speaker 3: of criminal justice at Georgetown Law who's argued death penalty 37 00:02:25,880 --> 00:02:30,160 Speaker 3: cases before the Supreme Court Cliff. This conservative court denies 38 00:02:30,520 --> 00:02:35,680 Speaker 3: virtually all execution appeals. In this case, two conservatives, the 39 00:02:35,760 --> 00:02:40,200 Speaker 3: Chief Justice and Brett Kavanaugh, sided with the liberal justices 40 00:02:40,280 --> 00:02:43,600 Speaker 3: to make up the majority. The Oklahoma ag said he 41 00:02:43,800 --> 00:02:47,160 Speaker 3: wasn't surprised by the ruling. Were you surprised? 42 00:02:47,639 --> 00:02:50,760 Speaker 6: No, I wasn't surprised by it, but I was heartened 43 00:02:50,880 --> 00:02:54,000 Speaker 6: by it. I wasn't surprised by it because I thought 44 00:02:54,080 --> 00:02:58,280 Speaker 6: on the merits, the case for glossop in the Supreme 45 00:02:58,320 --> 00:03:02,760 Speaker 6: Court was so strong, and it seemed in the oral 46 00:03:02,880 --> 00:03:07,800 Speaker 6: argument Thatsisis were clearly favoring classops claim a couple of 47 00:03:07,840 --> 00:03:11,520 Speaker 6: themis Thomas and Alito were clearly hostile. And then there 48 00:03:11,520 --> 00:03:15,720 Speaker 6: were a few that we couldn't really tell exactly. But 49 00:03:16,240 --> 00:03:19,400 Speaker 6: as you said, the Supreme Court has been extremely hostile 50 00:03:19,960 --> 00:03:24,079 Speaker 6: to claims raised by death row defendants in recent years. 51 00:03:24,160 --> 00:03:28,640 Speaker 6: I think unfortunately so, and I think unjustifiably so. And 52 00:03:28,680 --> 00:03:32,079 Speaker 6: so it was far from a sure thing that the 53 00:03:32,120 --> 00:03:36,080 Speaker 6: Supreme Court was going to reach this decision. 54 00:03:36,640 --> 00:03:40,760 Speaker 3: Tell us about the majority opinion by Justice Sonia Sotomayor, 55 00:03:40,880 --> 00:03:45,800 Speaker 3: where she focused on the state not correcting perjury by 56 00:03:45,840 --> 00:03:49,560 Speaker 3: its star witness. The admitted hit man who got life 57 00:03:49,560 --> 00:03:52,800 Speaker 3: in prison in exchange for his testimony. 58 00:03:53,160 --> 00:03:57,440 Speaker 6: One thing that's very unusual about Golssops case is that 59 00:03:57,480 --> 00:04:03,080 Speaker 6: you had the Republican Attorney General of Oklahoma, who generally 60 00:04:03,160 --> 00:04:06,720 Speaker 6: is very much in favor of the death penalty, very 61 00:04:06,800 --> 00:04:10,400 Speaker 6: strongly saying that he did not get a fair trial 62 00:04:10,680 --> 00:04:13,520 Speaker 6: and that he should have a new trial, and that 63 00:04:13,720 --> 00:04:19,159 Speaker 6: gossip was right that there had been prosecutorial misconduct that 64 00:04:19,360 --> 00:04:23,400 Speaker 6: prevented him from having a fair trial and that required 65 00:04:23,600 --> 00:04:27,080 Speaker 6: setting aside this conviction and the death center and getting 66 00:04:27,120 --> 00:04:30,680 Speaker 6: a new trial. So you had a consensus by both 67 00:04:30,760 --> 00:04:35,720 Speaker 6: Glossop and by the state. And yet even with that 68 00:04:36,000 --> 00:04:40,000 Speaker 6: consensus view, and even with the strength of their reasons 69 00:04:40,040 --> 00:04:43,480 Speaker 6: for that, the Oklahoma Court of Criminal Appeals, the highest 70 00:04:43,480 --> 00:04:47,560 Speaker 6: court in Oklahoma on criminal matters, rejected that position and 71 00:04:47,640 --> 00:04:51,400 Speaker 6: said that the conviction is going to stand and he's 72 00:04:51,440 --> 00:04:53,640 Speaker 6: going to be executed. And so it was a sort 73 00:04:53,640 --> 00:04:59,120 Speaker 6: of remarkable situation where you had the state court rejecting 74 00:04:59,560 --> 00:05:02,560 Speaker 6: the view it was even of the prosecutor, which was 75 00:05:02,680 --> 00:05:05,719 Speaker 6: sharing the view of the defendant. Now, this is not 76 00:05:05,839 --> 00:05:09,400 Speaker 6: the only time that this has happened in recent years, 77 00:05:09,600 --> 00:05:12,960 Speaker 6: and one that got a lot of attention. Last year 78 00:05:13,440 --> 00:05:16,960 Speaker 6: was the case of Marcellus Williams in Missouri, who had 79 00:05:17,000 --> 00:05:22,400 Speaker 6: a strong innocence claim and the office that had prosecuted 80 00:05:22,480 --> 00:05:26,000 Speaker 6: him and secured the death sentence agreed that he should 81 00:05:26,000 --> 00:05:30,680 Speaker 6: not be executed, and yet the Missouri courts rejected that 82 00:05:30,880 --> 00:05:33,480 Speaker 6: and the Supreme Court did not intervene, And that has 83 00:05:33,520 --> 00:05:37,240 Speaker 6: happened in some other circumstances also. It actually reflects the 84 00:05:37,320 --> 00:05:41,320 Speaker 6: kind of pervasive problem that we have right now when 85 00:05:41,600 --> 00:05:47,360 Speaker 6: state courts are rejecting the consensus view of prosecutors and 86 00:05:47,440 --> 00:05:51,359 Speaker 6: defendants that the individual didn't get a fair trial or 87 00:05:51,400 --> 00:05:55,480 Speaker 6: didn't get a death sentence fairly imposed, and the state 88 00:05:55,560 --> 00:06:01,280 Speaker 6: court just barrel ahead, upholding the conviction and ordering the execution. 89 00:06:02,000 --> 00:06:06,479 Speaker 3: Justice Sonia Sotomayor wrote the majority opinion in Glossop, and 90 00:06:06,520 --> 00:06:10,960 Speaker 3: she focused on the state not correcting perjury by its 91 00:06:11,040 --> 00:06:15,159 Speaker 3: star witness, the admitted hitman who got life in prison 92 00:06:15,400 --> 00:06:17,200 Speaker 3: in exchange for his testimony. 93 00:06:17,600 --> 00:06:22,640 Speaker 6: Mister Gossops wasn't involved in the actual physical commission of 94 00:06:22,839 --> 00:06:26,960 Speaker 6: the murder, and the case against the Glossop depended entirely 95 00:06:27,440 --> 00:06:32,520 Speaker 6: on the testimony of an individual who said that Golssop 96 00:06:32,760 --> 00:06:37,680 Speaker 6: had recruited him to commit the murder, and there was 97 00:06:37,760 --> 00:06:42,480 Speaker 6: no other direct evidence that Gossip was involved in planning 98 00:06:42,520 --> 00:06:46,800 Speaker 6: the murder in any way. It came out later that 99 00:06:47,200 --> 00:06:53,719 Speaker 6: the individual whose testimony was so critical in implicating Glossop 100 00:06:54,120 --> 00:06:59,599 Speaker 6: he lied on the stand and that the prosecution knew 101 00:06:59,600 --> 00:07:02,239 Speaker 6: that it was false testimony, and what it was about 102 00:07:02,920 --> 00:07:07,480 Speaker 6: was that he had taken lithium, and he testified that 103 00:07:07,720 --> 00:07:11,840 Speaker 6: he had never been treated by a psychiatrist, and he 104 00:07:12,000 --> 00:07:16,280 Speaker 6: had no mental health problems, and that he had received 105 00:07:16,320 --> 00:07:19,920 Speaker 6: the lithium as a mistake when he had requested something 106 00:07:20,000 --> 00:07:22,360 Speaker 6: for a cold. And one of the things that came 107 00:07:22,400 --> 00:07:24,480 Speaker 6: out years later, and that was kind of the heart 108 00:07:24,560 --> 00:07:27,480 Speaker 6: of the case in the Supreme Court, was that the 109 00:07:27,480 --> 00:07:31,520 Speaker 6: prosecutor had in her notes of a conversation with him 110 00:07:31,800 --> 00:07:36,400 Speaker 6: a reference to lithium and to the name of the 111 00:07:36,400 --> 00:07:41,840 Speaker 6: psychiatrist at the facility where he was being incarcerated, and 112 00:07:42,000 --> 00:07:46,840 Speaker 6: the medical records reflected that he had been prescribed lithium 113 00:07:47,280 --> 00:07:52,480 Speaker 6: by a psychiatrist and had bipolar disorder, And this would 114 00:07:52,520 --> 00:07:56,720 Speaker 6: have been very very important for the jury to understand, 115 00:07:56,960 --> 00:08:00,840 Speaker 6: both in terms of his credibility and again, the entire 116 00:08:00,960 --> 00:08:04,000 Speaker 6: case against glossops depending on his credibility, and here he 117 00:08:04,120 --> 00:08:09,360 Speaker 6: blatantly lied about the circumstances of his receiving lithium and 118 00:08:09,400 --> 00:08:12,480 Speaker 6: whether he had ever been treated by a psychiatrist, and 119 00:08:12,600 --> 00:08:18,320 Speaker 6: also possible implications that they might draw about whether he 120 00:08:18,360 --> 00:08:21,640 Speaker 6: would have acted impulsively and whether it could have been 121 00:08:21,680 --> 00:08:27,000 Speaker 6: connected to his psychological difficulty. So it is extremely important evidence. 122 00:08:27,040 --> 00:08:29,920 Speaker 6: That was the view of the majority. And there's a 123 00:08:30,040 --> 00:08:33,560 Speaker 6: Supreme Court case going back to the nineteen fifties called Napu, 124 00:08:34,000 --> 00:08:38,800 Speaker 6: which says that the prosecution cannot knowingly put on false 125 00:08:38,880 --> 00:08:43,520 Speaker 6: testimony and that if there is a false testimony that 126 00:08:43,559 --> 00:08:46,960 Speaker 6: the prosecution knows about, it has to correct that before 127 00:08:47,000 --> 00:08:50,720 Speaker 6: the jury, and if not, it's a violation of the 128 00:08:50,760 --> 00:08:54,520 Speaker 6: defendant's constitutional rights, it's a violation of due process. And 129 00:08:54,559 --> 00:08:58,840 Speaker 6: so Gossop's argument in the Oklahoma Attorney General agreed this 130 00:08:58,920 --> 00:09:03,480 Speaker 6: is a classic and then shut Nateu violation. The only 131 00:09:03,559 --> 00:09:08,040 Speaker 6: witness against him gave false testimony. We've got this evidence 132 00:09:08,280 --> 00:09:12,080 Speaker 6: in the records that shows that the prosecutor she knew 133 00:09:12,200 --> 00:09:15,559 Speaker 6: it was false testimony, and yet she didn't do anything 134 00:09:15,880 --> 00:09:18,360 Speaker 6: to correct it. So that was the view of justice. 135 00:09:18,400 --> 00:09:20,640 Speaker 6: Soda mayor and the majority. 136 00:09:20,640 --> 00:09:23,640 Speaker 3: Justice Neil Gorsich recused himself from the case because it 137 00:09:23,679 --> 00:09:26,160 Speaker 3: had come before him when he was on the Tenth Circuit. 138 00:09:26,520 --> 00:09:30,440 Speaker 3: Justice amy Cony Barrett concurred in part and dissented in part, 139 00:09:30,800 --> 00:09:37,200 Speaker 3: and conservative Justices Clarence Thomas and Samuel Alito dissented, which 140 00:09:37,200 --> 00:09:38,320 Speaker 3: comes as no surprise. 141 00:09:38,760 --> 00:09:44,360 Speaker 6: Well, you know, they generally have been extremely hostile to 142 00:09:44,880 --> 00:09:50,520 Speaker 6: capital defendant, and even in a case where Justice Alito 143 00:09:51,200 --> 00:09:53,600 Speaker 6: did join almost all of the other members of the 144 00:09:53,679 --> 00:09:56,760 Speaker 6: court in ruling for a capital defendant, he wrote a 145 00:09:56,920 --> 00:10:00,760 Speaker 6: very narrow concurrence in the judgment where he based said, 146 00:10:00,960 --> 00:10:03,720 Speaker 6: you know, this case and this case only. But that 147 00:10:04,320 --> 00:10:07,160 Speaker 6: brings up a very important point about the Supreme Court 148 00:10:07,240 --> 00:10:11,360 Speaker 6: as a whole, because since the modern era of the 149 00:10:11,400 --> 00:10:15,560 Speaker 6: death penalty began in the mid nineteen seventies, there have 150 00:10:15,720 --> 00:10:20,640 Speaker 6: been two hundred people who have been exonerated on death row. 151 00:10:21,200 --> 00:10:27,160 Speaker 6: That is a deeply troubling fact. And yet the Supreme 152 00:10:27,280 --> 00:10:36,280 Speaker 6: Court very regularly is raising and constructing extremely complicated procedural 153 00:10:36,480 --> 00:10:42,079 Speaker 6: obstacles that make it very difficult and in some cases impossible, 154 00:10:42,480 --> 00:10:47,200 Speaker 6: for defendants to have federal courts examine the merits of 155 00:10:47,240 --> 00:10:51,839 Speaker 6: their constitutional claims, even when those claims relate to innocence. 156 00:10:52,280 --> 00:10:55,640 Speaker 3: In Glossop's case, the next step will be for Oklahoma 157 00:10:55,760 --> 00:10:59,320 Speaker 3: to decide whether to retry him. Here's what the AG 158 00:10:59,480 --> 00:11:00,920 Speaker 3: said about that the. 159 00:11:00,880 --> 00:11:03,040 Speaker 2: Facts are well developed at this point, but we need 160 00:11:03,080 --> 00:11:06,319 Speaker 2: to look back on the evidence and see what evidence 161 00:11:06,320 --> 00:11:08,400 Speaker 2: we actually have that we can go forward on and 162 00:11:08,520 --> 00:11:12,480 Speaker 2: what witness recollection there is to make a determination on 163 00:11:12,520 --> 00:11:13,920 Speaker 2: the efficacy of. 164 00:11:13,880 --> 00:11:14,559 Speaker 5: A jury trial. 165 00:11:14,880 --> 00:11:17,400 Speaker 3: How do you try a case twenty eight years later 166 00:11:17,520 --> 00:11:20,520 Speaker 3: when there was never any physical evidence to begin with. 167 00:11:20,679 --> 00:11:23,880 Speaker 3: Now there's new evidence that the state's star witness led 168 00:11:23,960 --> 00:11:27,520 Speaker 3: on the stand, wanted to recount his testimony so he 169 00:11:27,600 --> 00:11:29,400 Speaker 3: can be impeached. I mean, how do you try a 170 00:11:29,440 --> 00:11:30,040 Speaker 3: case like that. 171 00:11:30,440 --> 00:11:32,960 Speaker 6: I think it's going to be extremely difficult for them 172 00:11:33,040 --> 00:11:35,760 Speaker 6: to try the case, and we'll see what charges they 173 00:11:35,800 --> 00:11:38,800 Speaker 6: would bring for the reasons that you mentioned. Of course, 174 00:11:38,840 --> 00:11:41,320 Speaker 6: it's a long time ago, but also it's the very 175 00:11:41,400 --> 00:11:46,080 Speaker 6: reason why this information was so important, because the fact 176 00:11:46,120 --> 00:11:50,080 Speaker 6: that the only witness against him blatantly lies, you know, 177 00:11:50,160 --> 00:11:53,240 Speaker 6: he is subject to impeachment on that basis, and so 178 00:11:53,360 --> 00:11:56,559 Speaker 6: I would think there'll be enormous problems in trying the case. 179 00:11:56,800 --> 00:11:59,960 Speaker 3: We'll see what Oklahoma decides. Thanks so much, Cliff. That's 180 00:12:00,040 --> 00:12:04,040 Speaker 3: Professor Cliff Sloan of Georgetown Law. Coming up next. The 181 00:12:04,080 --> 00:12:08,320 Speaker 3: Court turns away cases on abortion buffer zones. I'm June Grosso. 182 00:12:08,360 --> 00:12:09,679 Speaker 3: When you're listening to Bloomberg. 183 00:12:10,640 --> 00:12:15,280 Speaker 7: At long last, this national nightmare that we're going through 184 00:12:15,800 --> 00:12:20,839 Speaker 7: will be over. Women will be happy, healthy, confident, and free. 185 00:12:21,520 --> 00:12:25,360 Speaker 7: You will no longer be thinking about abortion because it 186 00:12:25,480 --> 00:12:28,640 Speaker 7: is now where it always had to be, with the 187 00:12:28,720 --> 00:12:31,000 Speaker 7: states and with the vote of the people. 188 00:12:31,240 --> 00:12:35,120 Speaker 3: But the so called national nightmare is far from over. 189 00:12:35,400 --> 00:12:38,440 Speaker 3: In fact, the fight over abortion rights is still front 190 00:12:38,480 --> 00:12:42,640 Speaker 3: and center, as several states introduce bills to charge women 191 00:12:42,679 --> 00:12:47,080 Speaker 3: who get abortions with murder, others introduce bills to classify 192 00:12:47,160 --> 00:12:52,440 Speaker 3: the most commonly used abortion drugs as dangerous controlled substances, 193 00:12:52,800 --> 00:12:57,240 Speaker 3: and the decades long fight over abortion buffer zones continues. 194 00:12:57,640 --> 00:13:00,880 Speaker 3: This week, the Supreme Court delta set back to anti 195 00:13:01,000 --> 00:13:05,880 Speaker 3: abortion activists by refusing to reconsider a two thousand decision 196 00:13:06,240 --> 00:13:10,240 Speaker 3: that let states and cities create those protective zones to 197 00:13:10,320 --> 00:13:15,280 Speaker 3: shield patients from being approached near clinic entrances. The justices 198 00:13:15,320 --> 00:13:18,680 Speaker 3: turned away appeals over laws in New Jersey and Illinois 199 00:13:19,080 --> 00:13:22,760 Speaker 3: that argued the buffer zones violate the free speech rights 200 00:13:22,800 --> 00:13:25,960 Speaker 3: of abortion opponents who want to talk to women as 201 00:13:26,000 --> 00:13:28,880 Speaker 3: they enter the clinics. Joining me is an expert in 202 00:13:28,880 --> 00:13:32,320 Speaker 3: the law of reproductive rights, Mary Ziegler, a professor at 203 00:13:32,440 --> 00:13:36,040 Speaker 3: UC Davis Law School. Mary tell us about that decision 204 00:13:36,160 --> 00:13:39,719 Speaker 3: in two thousand that these cases are trying to get overturned. 205 00:13:40,440 --> 00:13:42,960 Speaker 8: So this was part of this series of rulings on 206 00:13:42,960 --> 00:13:47,560 Speaker 8: this topic called Hill versus Colorado. Hill was about a 207 00:13:47,600 --> 00:13:51,480 Speaker 8: Colorado law that was kind of prototypical of the era 208 00:13:51,600 --> 00:13:54,800 Speaker 8: that made it unlawful for anyone who is within one 209 00:13:54,880 --> 00:13:58,200 Speaker 8: hundred feet of a healthcare facility's entrance to knowingly come 210 00:13:58,240 --> 00:14:01,520 Speaker 8: within eight feet of another person unless the person they 211 00:14:01,520 --> 00:14:05,880 Speaker 8: were approaching consented and the idea was either to you know, 212 00:14:06,320 --> 00:14:08,559 Speaker 8: show them a sign or talk to them or whatever. 213 00:14:08,880 --> 00:14:12,400 Speaker 8: And a group of anti abortion protesters thought that this 214 00:14:12,640 --> 00:14:17,200 Speaker 8: violated the First Amendment and they sued, and the US 215 00:14:17,320 --> 00:14:20,440 Speaker 8: Supreme Court, in a six to three ruling, held that 216 00:14:20,640 --> 00:14:25,560 Speaker 8: Colorado's restrictions on this kind of speech related conduct were constitutional. 217 00:14:25,760 --> 00:14:29,720 Speaker 8: So this was a bid by the new generation of 218 00:14:29,720 --> 00:14:32,520 Speaker 8: abortion opponents to get rid of this prior ruling. 219 00:14:32,840 --> 00:14:34,120 Speaker 3: I mean, I've wanted to get rid of it for 220 00:14:34,160 --> 00:14:36,640 Speaker 3: a long time. This was the first time this has 221 00:14:36,680 --> 00:14:40,520 Speaker 3: come up since the Court overturned the right to abortion. 222 00:14:41,000 --> 00:14:43,720 Speaker 8: Yeah, it was so. The Court had kind of narrowed 223 00:14:44,000 --> 00:14:47,800 Speaker 8: the protections that it afforded medical facilities in a twenty 224 00:14:47,840 --> 00:14:51,840 Speaker 8: fourteen decision out of Massachusetts called McCullen, but the issue 225 00:14:51,840 --> 00:14:54,440 Speaker 8: hadn't really returned to the court in a meaningful way 226 00:14:54,520 --> 00:14:54,960 Speaker 8: since then. 227 00:14:55,280 --> 00:14:59,160 Speaker 3: As usual, the Court gave no explanation for why it 228 00:14:59,240 --> 00:15:02,080 Speaker 3: wasn't taking the cases. But do you think they just 229 00:15:02,160 --> 00:15:04,240 Speaker 3: want to avoid another abortion case. 230 00:15:04,800 --> 00:15:07,200 Speaker 8: It's hard to say. It may be that they didn't 231 00:15:07,240 --> 00:15:09,680 Speaker 8: want to take another abortion case, and maybe that this 232 00:15:09,880 --> 00:15:13,200 Speaker 8: was not the ideal case to take because Carbondale, which 233 00:15:13,240 --> 00:15:15,360 Speaker 8: was the site of one of the ordinances that was 234 00:15:15,400 --> 00:15:18,920 Speaker 8: being challenged, no longer was enforcing its ordinance, so there 235 00:15:19,000 --> 00:15:21,280 Speaker 8: was an argument that this was no longer a real, 236 00:15:21,400 --> 00:15:24,480 Speaker 8: live dispute. If the justices do want to take up 237 00:15:24,480 --> 00:15:26,440 Speaker 8: an abortion case, they may not want to take up 238 00:15:26,480 --> 00:15:31,040 Speaker 8: a case that features protesters and potentially vigilantes right as 239 00:15:31,040 --> 00:15:34,520 Speaker 8: opposed to abortion opponents who are claiming to interpret laws 240 00:15:34,520 --> 00:15:37,440 Speaker 8: on the books rather than resist them. So It's hard 241 00:15:37,480 --> 00:15:39,280 Speaker 8: to know how much to read into this. It may 242 00:15:39,320 --> 00:15:41,440 Speaker 8: not be a sign that the Court's reluctant to get 243 00:15:41,440 --> 00:15:44,000 Speaker 8: into the abortion debate at all. It may simply be 244 00:15:44,320 --> 00:15:45,760 Speaker 8: something unique to this case. 245 00:15:46,440 --> 00:15:50,440 Speaker 3: So the conservative justices Clarence Thomas and Samuel Alito said 246 00:15:50,440 --> 00:15:53,760 Speaker 3: they would have heard both cases, and Thomas said in 247 00:15:53,800 --> 00:15:58,360 Speaker 3: a descending opinion that Hill has been seriously undermined, if 248 00:15:58,400 --> 00:16:02,720 Speaker 3: not completely eroded, and our refusal to provide clarity is 249 00:16:02,760 --> 00:16:04,880 Speaker 3: an abdication of our judicial duty. 250 00:16:05,240 --> 00:16:08,160 Speaker 8: I think that Thomas's argument was that the court's subsequent 251 00:16:08,200 --> 00:16:12,280 Speaker 8: decisions after Hill had afforded more protection for the speech 252 00:16:12,400 --> 00:16:15,400 Speaker 8: of anti aborshion protesters, and I think Thomas was also 253 00:16:15,400 --> 00:16:18,840 Speaker 8: stressing what had happened in Dobbs, the decision overruling Roe. 254 00:16:18,880 --> 00:16:21,880 Speaker 8: So parts of Dobbs complained about what abortion opponents call 255 00:16:22,000 --> 00:16:25,960 Speaker 8: abortion distortion, the idea that Roe had kind of deformed 256 00:16:26,000 --> 00:16:29,080 Speaker 8: other areas of the law that weren't theoretically closely related 257 00:16:29,080 --> 00:16:32,160 Speaker 8: to abortion. And one of the areas that Dobbs flagged 258 00:16:32,360 --> 00:16:36,160 Speaker 8: was First Amendment doctrine and cited Hill as an example 259 00:16:36,200 --> 00:16:39,120 Speaker 8: of this distortion. So Thomas pointed to this language in 260 00:16:39,160 --> 00:16:42,000 Speaker 8: Dobbs and said, well, we already suggested that Hill was 261 00:16:42,040 --> 00:16:44,680 Speaker 8: a distortion, so why don't we overrule it. That was 262 00:16:44,720 --> 00:16:48,200 Speaker 8: the other I think inconsistency. Justice Thomas was trying to flag. 263 00:16:48,560 --> 00:16:50,920 Speaker 3: It takes four votes to take the case, and you 264 00:16:50,960 --> 00:16:55,480 Speaker 3: had two other conservative justices Neil Gorsuch and Amy Cony Barrett, 265 00:16:55,480 --> 00:16:59,360 Speaker 3: who had previously joined Thomas in criticizing the Hill ruling, 266 00:16:59,400 --> 00:17:01,560 Speaker 3: so that would have made four votes. It seems odd 267 00:17:01,600 --> 00:17:02,440 Speaker 3: that they didn't take it. 268 00:17:02,720 --> 00:17:04,440 Speaker 8: Yeah, I mean, like I said, there are any number 269 00:17:04,440 --> 00:17:07,320 Speaker 8: of reasons. We know historically that the justices have sometimes 270 00:17:07,400 --> 00:17:11,359 Speaker 8: been more uncomfortable with clinic blockaders and protesters than they 271 00:17:11,400 --> 00:17:14,880 Speaker 8: are with other anti abortion arguments, especially because there has 272 00:17:14,960 --> 00:17:17,600 Speaker 8: been sort of a flavor sometimes from those protesters of 273 00:17:17,880 --> 00:17:21,080 Speaker 8: answering to a higher law rather than to the Supreme Court. 274 00:17:21,400 --> 00:17:23,800 Speaker 8: We also know again that this case had some sort 275 00:17:23,840 --> 00:17:27,320 Speaker 8: of weird procedural issues that might have made some of 276 00:17:27,359 --> 00:17:29,760 Speaker 8: the justices who weren't eager to get into this arena 277 00:17:29,840 --> 00:17:32,800 Speaker 8: again anyway, might have given them an excuse to wait. 278 00:17:33,119 --> 00:17:35,359 Speaker 8: So we might not know for sure, but again, I 279 00:17:35,440 --> 00:17:37,520 Speaker 8: think it's much too early to say we won't see 280 00:17:37,520 --> 00:17:40,119 Speaker 8: the Court get involved in another abortion case in the 281 00:17:40,160 --> 00:17:40,640 Speaker 8: near term. 282 00:17:41,200 --> 00:17:44,679 Speaker 3: So then is this a real setback for abortion opponents 283 00:17:44,760 --> 00:17:45,040 Speaker 3: or not. 284 00:17:45,640 --> 00:17:48,240 Speaker 8: It's certainly a setback. I think there was a feeling 285 00:17:48,320 --> 00:17:51,639 Speaker 8: that abortion opponents had when the Court first decided Dabbs 286 00:17:51,760 --> 00:17:54,520 Speaker 8: that it was kind of open season and that any 287 00:17:54,920 --> 00:17:58,240 Speaker 8: precedent on abortion rights could be challenged and quickly done 288 00:17:58,280 --> 00:18:02,879 Speaker 8: away with. And that's certainly not the impression that this gives. 289 00:18:02,960 --> 00:18:06,760 Speaker 8: It seems that, you know, if, for example, plaintiffs don't 290 00:18:06,800 --> 00:18:10,360 Speaker 8: have standing, or if a case has defects like this 291 00:18:10,400 --> 00:18:12,800 Speaker 8: one does, that the justices may just pass on it. 292 00:18:13,080 --> 00:18:15,680 Speaker 8: I think it is a setback. But how significant is setback, 293 00:18:15,720 --> 00:18:18,040 Speaker 8: I think is challenging to determine. 294 00:18:18,359 --> 00:18:22,720 Speaker 3: I mean, are there a lot of prosecutions of protesters 295 00:18:22,840 --> 00:18:25,120 Speaker 3: outside abortion clinics these days? 296 00:18:25,520 --> 00:18:28,359 Speaker 8: One of the I think, obviously features of this is 297 00:18:28,400 --> 00:18:31,880 Speaker 8: that there were relatively few, but there were some prosecutions 298 00:18:31,960 --> 00:18:35,680 Speaker 8: under the Federal Freedom of Access to Clinic Entrances Act, 299 00:18:36,080 --> 00:18:42,640 Speaker 8: and they're relatively small percentage of prosecutions per protests, and 300 00:18:43,600 --> 00:18:45,959 Speaker 8: of course, you know, we expect to see more of 301 00:18:46,000 --> 00:18:49,159 Speaker 8: them because the Trump administration announced that they would not 302 00:18:49,280 --> 00:18:54,119 Speaker 8: be enforcing the FACE Act against abortion opponents during the 303 00:18:54,119 --> 00:18:56,680 Speaker 8: Trump administration sort of regardless. 304 00:18:56,080 --> 00:18:56,840 Speaker 6: Of what happens. 305 00:18:57,040 --> 00:19:00,359 Speaker 8: So there already are protests, and we'd expect to see 306 00:19:00,440 --> 00:19:03,359 Speaker 8: more to some degree. They're also more concentrated, of course, 307 00:19:03,440 --> 00:19:06,600 Speaker 8: because there are fewer places where it's possible to get 308 00:19:06,600 --> 00:19:09,880 Speaker 8: a legal abortion of thus fewer clinics, so protesters can 309 00:19:09,960 --> 00:19:13,040 Speaker 8: kind of concentrate on the remaining locations. 310 00:19:13,320 --> 00:19:18,040 Speaker 3: Has the Trump administration made any other moves regarding abortion, 311 00:19:18,680 --> 00:19:19,280 Speaker 3: Not a lot. 312 00:19:19,400 --> 00:19:22,000 Speaker 8: So the Trump administration has made some of the kind 313 00:19:22,040 --> 00:19:24,840 Speaker 8: of standard moves we'd expect to see from a Republican 314 00:19:24,960 --> 00:19:30,360 Speaker 8: president on abortion, so for example, reinstituting limits on foreign 315 00:19:30,400 --> 00:19:36,160 Speaker 8: aid to NGOs that do abortion advocacy or referrals. We've 316 00:19:36,200 --> 00:19:39,600 Speaker 8: seen coded references to the idea of fetal personhood in 317 00:19:39,960 --> 00:19:43,640 Speaker 8: the Gender Executive Order that the Trump administration handed down. 318 00:19:43,760 --> 00:19:47,000 Speaker 8: As I mentioned, Trump and JD. Vance made clear that 319 00:19:47,040 --> 00:19:50,040 Speaker 8: there would be no more prosecutions under the face SAC 320 00:19:50,160 --> 00:19:54,000 Speaker 8: to protect access to abortion clinics or crisis pregnancy centers. Interestingly, 321 00:19:54,240 --> 00:19:56,600 Speaker 8: so we've seen that we haven't seen a lot of 322 00:19:56,600 --> 00:19:59,720 Speaker 8: the bigger moves that abortion opponents have been hoping for. 323 00:20:00,200 --> 00:20:02,320 Speaker 8: That doesn't mean we won't in the future. But Trump 324 00:20:02,320 --> 00:20:04,520 Speaker 8: has yet to take action on those fronts. 325 00:20:04,760 --> 00:20:09,120 Speaker 3: What are abortion opponents targeting right now is the abortion 326 00:20:09,240 --> 00:20:11,560 Speaker 3: film if a Pristone one of their targets. 327 00:20:11,960 --> 00:20:17,119 Speaker 8: The steps that they're primarily interested in are either imposing 328 00:20:17,200 --> 00:20:20,480 Speaker 8: new limits on mitha pristone through FDA or directly through 329 00:20:20,520 --> 00:20:25,360 Speaker 8: AHHS Secretary Robert F. Kennedy, or potentially even removing mythapristone 330 00:20:25,400 --> 00:20:30,600 Speaker 8: from the market altogether. There's also a potential push to 331 00:20:31,160 --> 00:20:34,119 Speaker 8: have the Trump Justice Department treat the Comstock Act as 332 00:20:34,160 --> 00:20:37,320 Speaker 8: a de facto ban on mailing abortion related items and 333 00:20:37,440 --> 00:20:40,480 Speaker 8: to start prosecutions. Those are I think the two things 334 00:20:40,480 --> 00:20:43,880 Speaker 8: that have captured the most attention. The other thing, of course, 335 00:20:43,880 --> 00:20:46,159 Speaker 8: that will have a major impact but won't be as 336 00:20:46,200 --> 00:20:48,480 Speaker 8: evident in the short term, is that Trump will continue 337 00:20:48,480 --> 00:20:52,840 Speaker 8: to fill judicial vacancies with conservative judges like Matthew Tasmeric 338 00:20:52,920 --> 00:20:57,640 Speaker 8: and James Hoe, who've issued pretty strongly conservative and sweeping 339 00:20:57,720 --> 00:21:02,240 Speaker 8: rulings on abortion since Trump dominated them during his last administration. 340 00:21:02,440 --> 00:21:05,520 Speaker 8: So I think the courts overall will probably be moving 341 00:21:05,880 --> 00:21:08,320 Speaker 8: significantly to the right on these issues, but those are 342 00:21:08,320 --> 00:21:10,600 Speaker 8: not impacts we'll see from the Trump administration in the 343 00:21:10,640 --> 00:21:13,040 Speaker 8: coming weeks. That's a longer term change. 344 00:21:13,240 --> 00:21:16,159 Speaker 3: As far as RFK Junior, is he a threat to 345 00:21:16,240 --> 00:21:17,520 Speaker 3: abortion rights. 346 00:21:17,720 --> 00:21:20,720 Speaker 8: It's difficult again to say so. RFK had telegraphed during 347 00:21:20,760 --> 00:21:25,080 Speaker 8: and after his confirmation hearing that he would be investigating 348 00:21:25,119 --> 00:21:28,720 Speaker 8: the safety of Miffa pristone at Donald Trump's request. Now, 349 00:21:28,800 --> 00:21:31,119 Speaker 8: abortion opponents, on the one hand, we're excited about this, 350 00:21:31,200 --> 00:21:34,040 Speaker 8: because there's no real need to studying MIFA pristone unless 351 00:21:34,080 --> 00:21:37,520 Speaker 8: you're telegraphing a move to limit it. Myra pristone's one 352 00:21:37,520 --> 00:21:40,399 Speaker 8: of the most studied and really regulated drugs in the 353 00:21:40,520 --> 00:21:42,880 Speaker 8: United States. On the other hand, of course, the Trump 354 00:21:42,920 --> 00:21:46,840 Speaker 8: administration has been perfectly capable of taking very quick action 355 00:21:47,200 --> 00:21:51,200 Speaker 8: to establish policies at wants, and the fact that it's 356 00:21:51,240 --> 00:21:54,560 Speaker 8: sort of slow walking these policies may mean that the 357 00:21:54,600 --> 00:21:57,560 Speaker 8: Trump administration is simply trying to buy time rather than 358 00:21:57,600 --> 00:22:00,560 Speaker 8: building toward a sweeping new abortion policy. So I think 359 00:22:00,600 --> 00:22:03,280 Speaker 8: it's just too early to say which of those we're seeing. 360 00:22:03,600 --> 00:22:06,560 Speaker 3: It does seem like there's potential now for red state 361 00:22:06,720 --> 00:22:11,200 Speaker 3: blue state abortion battles. There's the first criminal indictment since 362 00:22:11,320 --> 00:22:15,480 Speaker 3: Roe was overturned of a doctor who sent abortion pills 363 00:22:15,640 --> 00:22:16,920 Speaker 3: across state lines. 364 00:22:17,320 --> 00:22:19,120 Speaker 8: I don't care what the laws are in the state 365 00:22:19,160 --> 00:22:19,800 Speaker 8: of New York. 366 00:22:20,560 --> 00:22:23,600 Speaker 6: Laws in Louisiana matter, and we plan to enforce. 367 00:22:24,000 --> 00:22:29,280 Speaker 3: Louisiana District Attorney Tony Clayton has filed criminal charges against 368 00:22:29,320 --> 00:22:33,439 Speaker 3: New York doctor Margaret Carpenter, but New York Governor Kathy 369 00:22:33,520 --> 00:22:39,160 Speaker 3: Hochel rejected his extradition request in no uncertain terms, never 370 00:22:39,480 --> 00:22:42,640 Speaker 3: under any circumstances, Well, I sign an extradition agreement. 371 00:22:42,800 --> 00:22:48,200 Speaker 8: There are two crossworder disputes that have unfolded. Texas has 372 00:22:48,280 --> 00:22:53,240 Speaker 8: already had a civil judgment, a default judgment against doctor 373 00:22:53,280 --> 00:22:55,320 Speaker 8: Carpenter from New York that it's going to have to 374 00:22:55,400 --> 00:22:58,120 Speaker 8: try to enforce in the New York courts. And meanwhile, 375 00:22:58,200 --> 00:23:01,640 Speaker 8: Louisiana prosecutors are trying to extradite that same New York 376 00:23:01,680 --> 00:23:04,879 Speaker 8: doctor to Louisiana to face criminal charges. And we know 377 00:23:05,000 --> 00:23:07,679 Speaker 8: that New York Governor Kathy Hokl has made clear that 378 00:23:07,720 --> 00:23:10,880 Speaker 8: she has no plans to extradite doctor Carpenter. So both 379 00:23:10,920 --> 00:23:14,639 Speaker 8: of these cases seem likely to end up with disputes 380 00:23:14,640 --> 00:23:17,520 Speaker 8: in federal court that will probably eventually make their way 381 00:23:17,520 --> 00:23:18,400 Speaker 8: to the Supreme Court. 382 00:23:18,800 --> 00:23:22,240 Speaker 3: There must be a lot of doctors sending abortion pills 383 00:23:22,280 --> 00:23:24,680 Speaker 3: through the mail. Is there a reason why they went 384 00:23:24,760 --> 00:23:27,320 Speaker 3: after that doctor in particular. 385 00:23:27,359 --> 00:23:29,840 Speaker 8: I think it's largely just a function of what evidence 386 00:23:29,920 --> 00:23:33,080 Speaker 8: they find. In the Texas case, a partner of an 387 00:23:33,080 --> 00:23:36,080 Speaker 8: abortion patient who took her to the hospital when she 388 00:23:36,160 --> 00:23:40,160 Speaker 8: thought she was experiencing complications went home found the pills, 389 00:23:40,240 --> 00:23:43,360 Speaker 8: which doctor Carpenter had prescribed. Remember at this point in time, 390 00:23:43,400 --> 00:23:47,760 Speaker 8: New York wasn't allowing for anonymous prescriptions, and then reported 391 00:23:47,800 --> 00:23:52,360 Speaker 8: this to local law enforcement, which led to the complaint 392 00:23:52,359 --> 00:23:55,800 Speaker 8: filed against her. In Louisiana, it seems to have been 393 00:23:56,160 --> 00:24:02,000 Speaker 8: similarly coincidental. A woman ordered pills from doctor Carpenter for 394 00:24:02,200 --> 00:24:05,120 Speaker 8: her daughter, and when the daughter took the pills when 395 00:24:05,119 --> 00:24:08,720 Speaker 8: the mother wasn't home, she was worried about the bleeding 396 00:24:08,800 --> 00:24:11,200 Speaker 8: she was experiencing and called nine to one one, and 397 00:24:11,280 --> 00:24:14,320 Speaker 8: law enforcement again found the pills with doctor Carpenter's name 398 00:24:14,359 --> 00:24:17,280 Speaker 8: on them. So I think there will likely be a 399 00:24:17,320 --> 00:24:20,560 Speaker 8: certain amount of randomness in terms of who's targeted in 400 00:24:20,600 --> 00:24:23,520 Speaker 8: these kinds of cross border desputes, just depending on what 401 00:24:23,600 --> 00:24:25,640 Speaker 8: law enforcement can actually uncover. 402 00:24:26,240 --> 00:24:30,240 Speaker 3: And this month Governor Hokeel signed a law that shields 403 00:24:30,240 --> 00:24:34,479 Speaker 3: the identity of doctors in New York who prescribe abortion pills. 404 00:24:34,760 --> 00:24:36,920 Speaker 3: Thanks so much for coming on the show. Mary. That's 405 00:24:36,920 --> 00:24:40,840 Speaker 3: Professor Mary Ziegler of UC Davis Law School. Coming up 406 00:24:40,840 --> 00:24:43,720 Speaker 3: next on the Bloomberg Law Show, the Supreme Court. Here 407 00:24:43,800 --> 00:24:47,320 Speaker 3: is a case of reverse discrimination. I'm June Grosso and 408 00:24:47,359 --> 00:24:52,199 Speaker 3: you're listening to Bloomberg. Marlene Ain says she was denied 409 00:24:52,240 --> 00:24:55,280 Speaker 3: a promotion and then demoted from her position at the 410 00:24:55,320 --> 00:25:00,240 Speaker 3: Ohio Department of Youth Services because she's heterosexual, and that 411 00:25:00,320 --> 00:25:04,639 Speaker 3: her employer put less qualified gay people in those jobs instead. 412 00:25:04,960 --> 00:25:08,080 Speaker 3: But the Sixth Circuit Court of Appeals throughout her job 413 00:25:08,160 --> 00:25:12,280 Speaker 3: discrimination case under Title seven, ruling that as a member 414 00:25:12,280 --> 00:25:15,640 Speaker 3: of a so called majority group, Ames needed to show 415 00:25:15,800 --> 00:25:20,639 Speaker 3: background circumstances to support the suspicion that her employer is 416 00:25:20,720 --> 00:25:25,760 Speaker 3: that unusual employer who discriminates against members of the majority. 417 00:25:26,160 --> 00:25:29,400 Speaker 3: Here's how Justice Elaina Kagan described the opinion. 418 00:25:29,640 --> 00:25:33,320 Speaker 4: Jamyan, I think that that's the absolutely critical language in 419 00:25:33,359 --> 00:25:37,480 Speaker 4: this opinion. Because Ames is heterosexual, she must make a 420 00:25:37,520 --> 00:25:41,159 Speaker 4: showing in addition to the usual ones for establishing a 421 00:25:41,200 --> 00:25:46,000 Speaker 4: prima facia case. And then it says, you know, Ames's 422 00:25:46,080 --> 00:25:48,720 Speaker 4: prima facia case would have been easy to make had 423 00:25:48,720 --> 00:25:52,440 Speaker 4: she belonged to the relevant minority group. Here gay people. 424 00:25:52,520 --> 00:25:57,320 Speaker 3: Circuit courts covering twenty states imposed this additional requirement. When 425 00:25:57,359 --> 00:26:01,800 Speaker 3: members of a majority group, including men, groosexuals, and white people, 426 00:26:02,240 --> 00:26:06,359 Speaker 3: allege workplace bias under federal law, they have to show 427 00:26:06,480 --> 00:26:11,760 Speaker 3: background circumstances, for example here that LGBTQ people made the 428 00:26:11,800 --> 00:26:16,480 Speaker 3: decisions affecting aims, or statistical evidence showing a pattern of 429 00:26:16,520 --> 00:26:21,120 Speaker 3: discrimination against members of the majority group. Justices from across 430 00:26:21,160 --> 00:26:26,119 Speaker 3: the ideological spectrum question the requirement that members of majority 431 00:26:26,119 --> 00:26:30,240 Speaker 3: groups meet a higher standard to prove job discrimination than 432 00:26:30,359 --> 00:26:35,000 Speaker 3: minority groups that have historically faced discrimination. Even the Ohio 433 00:26:35,040 --> 00:26:40,160 Speaker 3: Solicitor General Elliott Gazer didn't defend the extra requirement under 434 00:26:40,240 --> 00:26:42,520 Speaker 3: questioning by Justice Amy Cony. 435 00:26:42,240 --> 00:26:45,240 Speaker 5: Barrett, we agree Ohio agrees that it's wrong to treat 436 00:26:45,240 --> 00:26:45,960 Speaker 5: people differently. 437 00:26:46,240 --> 00:26:47,440 Speaker 3: So if we said. 438 00:26:49,000 --> 00:26:52,640 Speaker 9: Someone like miss Ames who is a member, it doesn't 439 00:26:52,680 --> 00:26:55,600 Speaker 9: matter if she was gay or whether she was straight, 440 00:26:55,680 --> 00:26:58,320 Speaker 9: she would have the exact same burden and be treated 441 00:26:58,320 --> 00:27:00,439 Speaker 9: the exact same way under Title seven. And if she 442 00:27:00,560 --> 00:27:04,080 Speaker 9: sued as someone who was gay and argued that they 443 00:27:04,080 --> 00:27:06,840 Speaker 9: were discriminated against under Title seven same. 444 00:27:07,359 --> 00:27:09,399 Speaker 1: I think that she should have the same burden. 445 00:27:09,880 --> 00:27:14,080 Speaker 3: Justice Brett Kavanaugh suggested a straightforward way of resolving the 446 00:27:14,200 --> 00:27:16,960 Speaker 3: case to the attorney for Ames, So. 447 00:27:16,920 --> 00:27:18,960 Speaker 5: All you want for this case is a really short 448 00:27:19,000 --> 00:27:23,720 Speaker 5: opinion that says discrimination on the basis of sexual orientation, 449 00:27:23,880 --> 00:27:28,000 Speaker 5: whether it's because you're gay or because you're straight, is prohibited, 450 00:27:28,000 --> 00:27:31,399 Speaker 5: and the rules are the same whichever way that goes. 451 00:27:31,680 --> 00:27:34,120 Speaker 5: That's right, your honor. All we need to say. 452 00:27:34,200 --> 00:27:36,760 Speaker 3: It was, for the most part, a rather light hearted 453 00:27:36,920 --> 00:27:40,560 Speaker 3: argument that lasted, and this is the only shocking part 454 00:27:40,600 --> 00:27:44,920 Speaker 3: of it, five minutes under the scheduled time. Justice Neil 455 00:27:44,960 --> 00:27:46,160 Speaker 3: Gorsett summed. 456 00:27:45,840 --> 00:27:48,480 Speaker 5: It up, well, we agree that the court should say 457 00:27:48,480 --> 00:27:51,720 Speaker 5: that at the very very minimum, we're in radical agreement 458 00:27:51,760 --> 00:27:52,439 Speaker 5: today on that. 459 00:27:52,520 --> 00:27:55,840 Speaker 10: It seems to me the council before us seemed to 460 00:27:55,840 --> 00:27:56,840 Speaker 10: be in total agreement. 461 00:27:57,040 --> 00:27:59,920 Speaker 3: Joining me. Is an expert in employment law, such an 462 00:28:00,080 --> 00:28:03,040 Speaker 3: hand you a professor at the University of Connecticut School 463 00:28:03,080 --> 00:28:05,879 Speaker 3: of Law. Tell us about the facts of the case, 464 00:28:06,040 --> 00:28:08,480 Speaker 3: why the plaintiff was bringing this action. 465 00:28:09,000 --> 00:28:11,120 Speaker 10: The long and sort of it was that the plaintiff 466 00:28:11,160 --> 00:28:14,879 Speaker 10: here brought a lawsuit alleging that she was denied a 467 00:28:14,920 --> 00:28:19,520 Speaker 10: promotion because she was heterosexual, that the promotion to a 468 00:28:19,560 --> 00:28:21,720 Speaker 10: bear chief position was in favor of a gay woman, 469 00:28:22,200 --> 00:28:24,920 Speaker 10: and then later she was demoted from her own position 470 00:28:25,359 --> 00:28:27,879 Speaker 10: in favor of a gay man. There's some other claims 471 00:28:27,920 --> 00:28:29,640 Speaker 10: in the case as well, but this is the one 472 00:28:29,800 --> 00:28:32,600 Speaker 10: Title seven claim that has made it up to the 473 00:28:32,680 --> 00:28:33,399 Speaker 10: Supreme Court. 474 00:28:33,520 --> 00:28:39,560 Speaker 3: Tell us about this background circumstances requirement that Aims is challenging. 475 00:28:39,960 --> 00:28:43,520 Speaker 10: The background circumstances rule is a rule first adopted by 476 00:28:43,560 --> 00:28:46,960 Speaker 10: the DC Circuit and then adopted by other circuits in 477 00:28:47,080 --> 00:28:52,360 Speaker 10: evaluating the prima fascia case. In a situation where the 478 00:28:52,400 --> 00:28:56,880 Speaker 10: plaintiff is a member of a majority group, a white plaintiff, 479 00:28:57,000 --> 00:29:01,720 Speaker 10: for example, or in this particular case, a heterosexual plaintiff 480 00:29:01,920 --> 00:29:06,880 Speaker 10: who is alleging discrimination based upon that heterosexual status, the 481 00:29:06,960 --> 00:29:10,160 Speaker 10: courts in those cases say that you need something else, 482 00:29:10,360 --> 00:29:14,720 Speaker 10: and that what's that something else, some background circumstance, some 483 00:29:14,920 --> 00:29:18,920 Speaker 10: additional item of evidence which would support the inference that 484 00:29:18,960 --> 00:29:22,600 Speaker 10: this was a kind of case where the employer was 485 00:29:22,640 --> 00:29:26,440 Speaker 10: discriminating against the member of a majority group. When this 486 00:29:26,680 --> 00:29:30,880 Speaker 10: plaintiff in the Aims case argued and provided some evidence 487 00:29:31,280 --> 00:29:34,320 Speaker 10: to say I want a jury trial on the question 488 00:29:34,440 --> 00:29:37,240 Speaker 10: of whether or not I was denied a promotion because 489 00:29:37,640 --> 00:29:41,200 Speaker 10: I'm a heterosexual woman and therefore discrimination on the basis 490 00:29:41,240 --> 00:29:45,320 Speaker 10: sexual orientation, just accorded in the Sixth Circuit quart appeal said, 491 00:29:46,000 --> 00:29:48,360 Speaker 10: you didn't make at your prima fastire case because you 492 00:29:48,400 --> 00:29:51,520 Speaker 10: are a member of a majority group. You had to 493 00:29:51,560 --> 00:29:55,040 Speaker 10: provide that additional background circumstances to show that this is 494 00:29:55,040 --> 00:29:59,520 Speaker 10: the kind of case where the employer was discriminating against 495 00:29:59,760 --> 00:30:03,400 Speaker 10: that or sexuals and in favor of gay people. And 496 00:30:03,680 --> 00:30:08,840 Speaker 10: that reason the Sixth Currict gave for refusing to let 497 00:30:09,040 --> 00:30:12,880 Speaker 10: Ames's case go to trial is what she's challenging up 498 00:30:12,880 --> 00:30:13,800 Speaker 10: at their Usupreme Court. 499 00:30:14,000 --> 00:30:16,520 Speaker 3: Did it seem as if a majority of the justices 500 00:30:17,080 --> 00:30:22,520 Speaker 3: were ready to throw out that background circumstances test. 501 00:30:22,160 --> 00:30:25,000 Speaker 10: Well, I can't read their minds, and I'm always a 502 00:30:25,000 --> 00:30:28,280 Speaker 10: little bit wary of using what they say in oral 503 00:30:28,360 --> 00:30:31,920 Speaker 10: argument as a crystal ball. It's not super predictive of much. 504 00:30:32,280 --> 00:30:35,960 Speaker 10: But if I were to guess, there's not a lot 505 00:30:36,040 --> 00:30:41,320 Speaker 10: of support on the court for keeping the background circumstances rule, 506 00:30:41,720 --> 00:30:46,440 Speaker 10: And it's really just a question of how narrowly or 507 00:30:46,480 --> 00:30:51,560 Speaker 10: how broadly they write the opinion that sends it back. 508 00:30:51,920 --> 00:30:54,200 Speaker 10: My best guess, if I were a betting man, was 509 00:30:54,480 --> 00:30:57,480 Speaker 10: to say that they're going to reject the background circumstances rule. 510 00:30:57,960 --> 00:31:01,560 Speaker 10: But do they, in the course of doing that, also 511 00:31:01,760 --> 00:31:06,880 Speaker 10: say some things about the scope of Title seven, which may, 512 00:31:07,000 --> 00:31:13,280 Speaker 10: for example, implicate recent debates over permissible DEI. You know, 513 00:31:13,480 --> 00:31:14,400 Speaker 10: that's an open question. 514 00:31:14,600 --> 00:31:18,680 Speaker 3: There was no discussion of DEI during the oral arguments, 515 00:31:18,760 --> 00:31:21,640 Speaker 3: and this comes at a time when there's a broad 516 00:31:22,080 --> 00:31:26,760 Speaker 3: legal and political attack on DEI. Did you expect to 517 00:31:26,760 --> 00:31:28,880 Speaker 3: hear some conversation about it. 518 00:31:29,360 --> 00:31:33,120 Speaker 10: I wouldn't have been surprised if there were, because, after all, 519 00:31:33,880 --> 00:31:38,240 Speaker 10: the key idea here on the part of the plaintiffs 520 00:31:38,760 --> 00:31:44,440 Speaker 10: is that Title seven shouldn't apply any differently depending upon 521 00:31:44,720 --> 00:31:49,920 Speaker 10: the identity of the plaintiffs seeking redressed. That is, it 522 00:31:49,960 --> 00:31:52,400 Speaker 10: doesn't matter whether you're a racial minority or a majority, 523 00:31:52,400 --> 00:31:54,120 Speaker 10: whether you're a woman or a man, whether you're a 524 00:31:54,720 --> 00:31:57,040 Speaker 10: minority plaintiffs. Could I imagine that they could write an 525 00:31:57,080 --> 00:32:01,440 Speaker 10: opinion that broadly which implicates the scope of DEI? Sure, 526 00:32:01,480 --> 00:32:05,960 Speaker 10: but I don't know that there's appetite to use this 527 00:32:06,160 --> 00:32:08,880 Speaker 10: case to make that point. 528 00:32:09,200 --> 00:32:12,120 Speaker 3: Just as Amy Cony Barrett asked whether there be a 529 00:32:12,160 --> 00:32:15,640 Speaker 3: flood of lawsuits if they get rid of this background 530 00:32:15,720 --> 00:32:17,400 Speaker 3: circumstances test. 531 00:32:17,360 --> 00:32:19,440 Speaker 9: Consel, What do you have to say to the Department's 532 00:32:19,480 --> 00:32:21,480 Speaker 9: contention that this is just going to throw the door 533 00:32:21,560 --> 00:32:25,760 Speaker 9: wide open to Title seven suits because now everybody can say, hey, 534 00:32:25,840 --> 00:32:28,280 Speaker 9: this was a discrimination on the basis of race, gender, 535 00:32:28,360 --> 00:32:28,800 Speaker 9: et cetera. 536 00:32:29,040 --> 00:32:32,640 Speaker 3: Do you think it would open the floodgates to more 537 00:32:32,720 --> 00:32:35,640 Speaker 3: lawsuits from members of majority groups? 538 00:32:36,080 --> 00:32:39,680 Speaker 10: The short answer is no. Opening the floodgates presupposes that 539 00:32:39,720 --> 00:32:43,080 Speaker 10: there's a lot of water waiting to go down the 540 00:32:43,080 --> 00:32:46,720 Speaker 10: stream once the gates are open, And I honestly don't 541 00:32:46,760 --> 00:32:52,680 Speaker 10: know how many majority group plaintiff lawsuits there actually are 542 00:32:52,760 --> 00:32:55,920 Speaker 10: waiting in the wings, because my assumption is that most 543 00:32:55,960 --> 00:33:00,239 Speaker 10: illegal discrimination occurs against the minority, not the majority. So 544 00:33:00,600 --> 00:33:03,719 Speaker 10: if you accept that assumption, then there isn't a floodgates 545 00:33:03,760 --> 00:33:06,200 Speaker 10: problem to worry about. 546 00:33:07,040 --> 00:33:10,960 Speaker 3: In this case. The employer, the Ohio Department of Youth Services, 547 00:33:11,400 --> 00:33:14,680 Speaker 3: has already given a reason why they say Aims was 548 00:33:14,720 --> 00:33:18,680 Speaker 3: demoted from her administrator position. They said she wouldn't bring 549 00:33:18,720 --> 00:33:24,200 Speaker 3: a proactive approach to the department's increased emphasis on combating 550 00:33:24,280 --> 00:33:28,680 Speaker 3: sexual violence in the juvenile correction system. So what happens 551 00:33:28,720 --> 00:33:32,120 Speaker 3: if the Supreme Court has expected sends this back to 552 00:33:32,200 --> 00:33:33,080 Speaker 3: the lower court. 553 00:33:33,560 --> 00:33:37,200 Speaker 10: If and when this goes back to the lower courts, 554 00:33:37,760 --> 00:33:41,960 Speaker 10: the plaintiffs will have an opportunity to show that there's 555 00:33:42,360 --> 00:33:46,560 Speaker 10: enough evidence that the reason that they gave was a 556 00:33:46,640 --> 00:33:50,200 Speaker 10: pretext and that the real reason was discrimination, that they 557 00:33:50,400 --> 00:33:52,320 Speaker 10: ought to be able to get a jury trial on 558 00:33:52,400 --> 00:33:55,800 Speaker 10: that question. That's what the plaintiff wants here. This is 559 00:33:55,840 --> 00:33:58,400 Speaker 10: sort of not something that was talked about oral argument 560 00:33:58,800 --> 00:34:01,680 Speaker 10: because the Supreme Court or is likely to rule narrowly. 561 00:34:02,240 --> 00:34:04,200 Speaker 10: But just as Kavanaugh when he was on the DC 562 00:34:04,360 --> 00:34:09,160 Speaker 10: Circuit wrote an opinion that emphasized that if the employer 563 00:34:09,200 --> 00:34:14,400 Speaker 10: has already provided a reason, courts ought not to bother 564 00:34:15,040 --> 00:34:19,080 Speaker 10: making plaintiffs prove the Prima Fasher case, all they should 565 00:34:19,120 --> 00:34:21,280 Speaker 10: do is to say, is there enough evidence on summary 566 00:34:21,360 --> 00:34:24,640 Speaker 10: judgment that the plaintiff can prove that the reason was 567 00:34:24,680 --> 00:34:27,440 Speaker 10: a lion, that the real reason was the discrimination, that 568 00:34:27,480 --> 00:34:30,040 Speaker 10: they get to have a trial on the matter. All 569 00:34:30,040 --> 00:34:32,759 Speaker 10: this talk about the Prima Fasher case is secondary. I 570 00:34:32,760 --> 00:34:35,040 Speaker 10: don't know whether the Court's going to write an opinion 571 00:34:35,120 --> 00:34:38,640 Speaker 10: which goes that far, but it is certainly something. 572 00:34:38,320 --> 00:34:41,040 Speaker 11: That at least Justice Kavanaugh has written about how does 573 00:34:41,040 --> 00:34:45,240 Speaker 11: a plaintiff like Ames show that she was fired because 574 00:34:45,239 --> 00:34:48,840 Speaker 11: she was heterosexual and not because of the reasons given 575 00:34:48,920 --> 00:34:53,240 Speaker 11: by her employer in the absence of some blatant acts 576 00:34:53,360 --> 00:34:58,120 Speaker 11: by her employer, It seems like providing evidence of the 577 00:34:58,160 --> 00:34:59,520 Speaker 11: motive is difficult. 578 00:35:00,120 --> 00:35:02,799 Speaker 10: I think generally, discriminatory motive is a hard thing to 579 00:35:02,840 --> 00:35:06,759 Speaker 10: prove it when you don't have somebody saying it on 580 00:35:06,880 --> 00:35:11,320 Speaker 10: tape or something like that. Most kinds of discrimination claims 581 00:35:11,920 --> 00:35:17,480 Speaker 10: rely upon indirect evidence of motive. That is, that you 582 00:35:17,600 --> 00:35:21,120 Speaker 10: say that it's one reason, but your past conduct suggests 583 00:35:21,200 --> 00:35:23,759 Speaker 10: that it's not. It's something else. That you may have 584 00:35:23,880 --> 00:35:28,200 Speaker 10: treated people who are otherwise similar to the plaintiff more favorably, 585 00:35:28,719 --> 00:35:31,200 Speaker 10: the only difference being that those other people were of 586 00:35:31,200 --> 00:35:33,920 Speaker 10: a different race or gender. Those are the kinds of 587 00:35:33,960 --> 00:35:38,640 Speaker 10: evidence that you would expect a plaintiff's lawyer to try 588 00:35:38,680 --> 00:35:42,360 Speaker 10: and collect and at least try to persuade a jury, 589 00:35:42,719 --> 00:35:44,759 Speaker 10: or at least try to persuade a judge the lab 590 00:35:44,760 --> 00:35:48,960 Speaker 10: them persuade a jury of discriminatory motive. It's not easy 591 00:35:49,360 --> 00:35:52,360 Speaker 10: to prove discriminatory motive, but that's the kind of evidence 592 00:35:52,360 --> 00:35:54,480 Speaker 10: that they would be looking for and pointing to. 593 00:35:54,920 --> 00:36:00,279 Speaker 3: Will this decision by the Court have any implications for 594 00:36:00,920 --> 00:36:05,320 Speaker 3: what I mentioned before this attack we're seeing on DEI 595 00:36:05,520 --> 00:36:07,200 Speaker 3: policies and programs. 596 00:36:07,840 --> 00:36:12,000 Speaker 10: I think it depends on how narrowly or broadly the 597 00:36:12,160 --> 00:36:16,080 Speaker 10: Court writes the opinion. If they narrowly write the opinion 598 00:36:16,160 --> 00:36:22,319 Speaker 10: to say, going forward, when the plinktiff relies upon the 599 00:36:22,400 --> 00:36:27,440 Speaker 10: McDonald Douglass framework, they shouldn't be required to prove background 600 00:36:27,440 --> 00:36:29,839 Speaker 10: circumstances if they are a member of a majority group. 601 00:36:29,880 --> 00:36:32,839 Speaker 10: And if they just stop there, it's going to have 602 00:36:33,080 --> 00:36:37,480 Speaker 10: minimal effect on this larger conversation about the legality of 603 00:36:37,560 --> 00:36:42,560 Speaker 10: THEI program. However, if the Court writes a broader opinion 604 00:36:43,040 --> 00:36:49,600 Speaker 10: which stresses that Title seven doesn't apply any differently depending 605 00:36:49,680 --> 00:36:52,879 Speaker 10: upon whether you are a member of a majority group 606 00:36:52,960 --> 00:36:56,000 Speaker 10: or a minority group, and in the course of doing 607 00:36:56,160 --> 00:37:01,240 Speaker 10: so is critical of the key US Supreme Court Title 608 00:37:01,280 --> 00:37:07,120 Speaker 10: seven precedent which allows for some employer discretion to adopt 609 00:37:07,400 --> 00:37:10,160 Speaker 10: what are called DEI programs, that's the United Field Workers 610 00:37:10,280 --> 00:37:14,160 Speaker 10: versus webercase, then it might have some daring. But if 611 00:37:14,200 --> 00:37:18,600 Speaker 10: they stay away from implicitly or explicitly criticizing the Weber 612 00:37:18,600 --> 00:37:22,480 Speaker 10: opinion and write the opinion more narrowly. Then it's not 613 00:37:22,520 --> 00:37:25,040 Speaker 10: going to have I don't think that much reliance for 614 00:37:25,160 --> 00:37:26,280 Speaker 10: that ongoing today. 615 00:37:26,320 --> 00:37:29,400 Speaker 3: Thanks so much for joining me. That's Professor Sutchen Panja 616 00:37:29,440 --> 00:37:32,799 Speaker 3: of the University of Connecticut Law School, and that's it 617 00:37:32,880 --> 00:37:35,440 Speaker 3: for this edition of The Bloomberg Law Show. Remember you 618 00:37:35,480 --> 00:37:37,920 Speaker 3: can always get the latest legal news on our Bloomberg 619 00:37:38,040 --> 00:37:41,640 Speaker 3: Law Podcast. You can find them on Apple Podcasts, Spotify, 620 00:37:41,840 --> 00:37:46,879 Speaker 3: and at www dot Bloomberg dot com slash podcast Slash Law, 621 00:37:47,280 --> 00:37:49,880 Speaker 3: And remember to tune into The Bloomberg Law Show every 622 00:37:49,920 --> 00:37:53,800 Speaker 3: weeknight at ten pm Wall Street Time. I'm June Grosso 623 00:37:53,960 --> 00:37:55,560 Speaker 3: and you're listening to Bloomberg 624 00:38:00,080 --> 00:38:00,120 Speaker 4: M