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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

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Speaker 2: About a month ago, the US Attorney for DC, Janine Pierro,

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Speaker 2: professed that she didn't care that Senator Tom Tillis was

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Speaker 2: opposing her controversial criminal investigation into Federal Reserve Chair Jerome Powell.

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Speaker 2: She was moving forward.

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Speaker 3: You know, honestly, I don't know, and I don't care.

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Speaker 3: And I'll tell you why. I am in a legal lane.

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Speaker 3: All of the rest is white noise. I don't care

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Speaker 3: what they say. I have a job. I have the

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Speaker 3: ability to go into a grand jury. There are questions

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Speaker 3: that the American public and people in DC are entitled

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Speaker 3: to know where a billion dollars has gone.

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Speaker 2: And on Wednesday, Piero doubled down and again vowed to

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Speaker 2: continue the investigation into building renovation cost over by the FED,

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Speaker 2: and to appeal a judge's order quashing her two grand

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Speaker 2: jury subpoenas.

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Speaker 4: This investigation continues.

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Speaker 3: I am in the legal lane.

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Speaker 4: There are others who are in the political lane. I

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Speaker 4: don't intersect those two lanes.

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Speaker 3: I am going forward.

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Speaker 4: We are appealing the decision of Judge Bosburg.

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Speaker 2: But then on Friday, in a stunning reversal. Pierro said

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Speaker 2: in a social media post that her office was closing

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Speaker 2: the investigation on Powell, but that quote this morning, the

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Speaker 2: Inspector General for the Federal Reserve has been asked to

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Speaker 2: scrutinize the building costs overruns. In fact, the IG's investigation

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Speaker 2: began last year. Does the end of Piero's investigation clear

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Speaker 2: the way for the confirmation of Kevin Walsh as FED chair?

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Speaker 2: Even though Piero added in her post quote note well, however,

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Speaker 2: that I will not hesitate to restart a criminal investigation

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Speaker 2: should the facts warn't doing so. Joining me is Elliott

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Speaker 2: Stein Bloomberg Intelligence Senior litigation analyst, Elliott What do you

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Speaker 2: make of Piro's abrupt reversal. Is it due to the

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Speaker 2: lack of evidence or pressure to clear the way for

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Speaker 2: Walsh's confirmation?

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Speaker 1: Probably a combination. I mean, you know, the whole point

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Speaker 1: of Judge Bosberg's opinion quashing the subpoenas was that, you know,

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Speaker 1: there's very little evidence of a crime versus a lot

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Speaker 1: of evidence, that this is all a pretext to go

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Speaker 1: after Powell for nonlawering interest rates. But then you also

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Speaker 1: have this whole Senator Tillis dynamic, and he has been

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Speaker 1: very forceful in saying that he's not going to allow

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Speaker 1: Warsh to be confirmed until the investigation is wrapped up.

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Speaker 1: And you know, they're coming up on May fifteenth deadline,

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Speaker 1: which is when Chair Powell's term ends as Federal Reserve Chair,

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Speaker 1: and so I think they want to move things along.

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Speaker 1: They want to get Warsh in there, and this is

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Speaker 1: sort of the quickest path to doing that. Although you know,

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Speaker 1: Jenny and Piro did leave an opening for opening the

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Speaker 1: investigation down the road. So it's unclear right now if

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Speaker 1: this is going to be enough for Senator Tillis. I

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Speaker 1: suspect it probably is, But if I'm Jerome Powell, I

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Speaker 1: would want a little more assurance in the form of

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Speaker 1: perhaps an immunity agreement of some sort.

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Speaker 2: Piero appeared to be trying to gloss over the implications

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Speaker 2: of dropping the investigation by saying that the Inspector General

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Speaker 2: was now going to be the one scrutinizing the cost

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Speaker 2: overruns end quote. I expect a comprehensive report in short

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Speaker 2: order and am confident the outcome will assist in resolving

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Speaker 2: once and for all the questions that led this office

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Speaker 2: to issue subpoenas, but in fact, the IG has already

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Speaker 2: reviewed the project twice and started another review last year

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Speaker 2: because Powell had requested it. So does this seem like

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Speaker 2: sort of a dead end, right?

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Speaker 1: But yeah, I mean it was sort of where we

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Speaker 1: were before the investigation started, right that it's still with

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Speaker 1: the Inspector General and that's what they do. And you know,

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Speaker 1: it sounds like Jennine Piro is sort of trying to

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Speaker 1: appease two camps here right on the ones, she obviously

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Speaker 1: reports to President Trump, who has been adamant about going

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Speaker 1: after Jerome Powell for several years now, and he wants

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Speaker 1: him out of the board completely. On the other hand,

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Speaker 1: she needs to satisfy Senator Tillis, who has said, you know,

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Speaker 1: he's going to block the confirmation of Kevin Warrish until

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Speaker 1: the investigation is wrapped up. So you know, her tweet

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Speaker 1: sort of seems to try to navigate right through both

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Speaker 1: those sides in that narrow passageway, and we'll see if

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Speaker 1: it's enough. I don't think we've heard anything from Senator

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Speaker 1: Tillis yet, but I suspect maybe we will soon.

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Speaker 2: Let's back up for a moment, Elliott, what is she

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Speaker 2: investigating the cost overruns and possible perjury by Powell.

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Speaker 1: Right, those are the two things. I think the testimony

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Speaker 1: to me sort of seemed to be more of the

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Speaker 1: impetus for her investigation, because the Inspector General is already

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Speaker 1: investigating the cost overruns for one. And you know, they

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Speaker 1: tried to accuse Powell of essentially lying in his testimony

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Speaker 1: to the Senate last summer. But you know, it seemed

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Speaker 1: very nitpicky and sort of a matter of semantics. Nothing.

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Speaker 1: Approaching a federal crime.

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Speaker 2: And proving perjury is not easy. You have to prove

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Speaker 2: that someone knowingly and willfully made a false statement under

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Speaker 2: oath about a material matter.

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Speaker 1: Yeah, it's very hard to prove intent in one of

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Speaker 1: these types of cases.

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Speaker 2: And we know that as late as a month ago,

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Speaker 2: Piro's office essentially had no evidence that Powell had committed

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Speaker 2: a crime because during a closed door hearing with Judge Boseburg,

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Speaker 2: the judge who quashed their subpoenas, they acknowledged they had

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Speaker 2: no evidence but said they wanted to go ahead with

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Speaker 2: the investigation anyway.

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Speaker 1: Right, I mean, you know, in most cases that's sort

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Speaker 1: of the purpose for the subpoena, right when you don't

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Speaker 1: have all these other things going on that suggests it's

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Speaker 1: a pretext.

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Speaker 4: Right.

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Speaker 1: If you have, you know, reasonable suspicion or probable cause

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Speaker 1: that a crime was committed, then you issue subpoenas to

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Speaker 1: develop the evidence further. But yet to your point, the

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Speaker 1: judge found, you know, not only is there no evidence yet,

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Speaker 1: and not only did the Justice Department concede that you

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Speaker 1: have to balance that with the other side of the

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Speaker 1: equation that the subpoenas were issued for the purpose of

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Speaker 1: harassing your own Powell because he's not lowering interest rates

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Speaker 1: fast enough. And the evidence of that was overwhelming, according

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Speaker 1: to the judge.

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Speaker 2: Yeah, Judge Boseburg said there was no evidence whatsoever that

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Speaker 2: Powell had committed any crime, but there was a mountain

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Speaker 2: of evidence that the investigation was intended to pressure Powell

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Speaker 2: to lower rates or resign. And this isn't the first

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Speaker 2: time that Ziro's office has had trouble moving forward on

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Speaker 2: an indictment. Several times DC grand juries have refused to indict,

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Speaker 2: disproving the old adage that a prosecutor can get a

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Speaker 2: grand jury to indict a ham sandwich. They couldn't get

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Speaker 2: a grand jury to indict the guy who threw the

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Speaker 2: salami sandwich at an officer. And there are other instances,

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Speaker 2: including a federal grand jury unanimously rejecting charges against six

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Speaker 2: members of Congress for making that video reminding the military

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Speaker 2: that they don't have to follow illegal.

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Speaker 1: Orders, right, And it's not just her in DC, I

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Speaker 1: think it was also in the Eastern District of Virginia.

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Speaker 1: You had subpoenas issued and investigations opened against Tisha James

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Speaker 1: James Comey. Those were also essentially quest or the grand

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Speaker 1: jury's refused to indict. And you know this case too

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Speaker 1: against their own Powell. If it had proceeded, it looked

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Speaker 1: like it was on a to also not lead to

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Speaker 1: an indictment. So it does seem that, you know, they

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Speaker 1: are bringing weak cases. They're obviously going after President Trump's

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Speaker 1: perceived political enemies, and you know, if that's a justification,

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Speaker 1: it's an explanation for why there's not evidence of a crime.

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Speaker 2: What also strikes me about this is that Piero dropped

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Speaker 2: the investigation by social media post, but she held a

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Speaker 2: press conference to announce that Judge Bosberg had quashed the subpoenas.

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Speaker 2: A lost Many people would not want to broadcast.

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Speaker 1: I remember watching that press conference, and at the time

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Speaker 1: it really felt very performative. It felt like she was defensive,

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Speaker 1: and you know, I'm sure some of it was knowing

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Speaker 1: that President Trump was watching and that she wanted him

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Speaker 1: to know that she was continuing to pursue this case

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Speaker 1: aggressively against Jerome Powell, who the President you know, is

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Speaker 1: not happy with, hasn't been happy with for a while.

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Speaker 1: But what's interesting is they filed a motion to reconsider

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Speaker 1: that opinion. They lost that on April third. They haven't

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Speaker 1: appealed those decisions to the DC's circuit at all, and

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Speaker 1: you would think that if they really wanted to move

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Speaker 1: the case along and continue to prosecute it, they would

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Speaker 1: have done that. We haven't seen that. The deadline is

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Speaker 1: two months from that April third date where the motion

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Speaker 1: to reconsider was denied. I mean, they do have until

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Speaker 1: June third. Obviously, we don't expect that to happen now

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Speaker 1: that they're dropping the probe, but it may be a

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Speaker 1: date that gives Jerome Powell some comfort. If it comes

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Speaker 1: and goes and it results in no appeal being filed,

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Speaker 1: it may give him some comfort that the investigation really

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Speaker 1: is being dropped. Because they're not going to be able

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Speaker 1: to really revive those subpoenas. I suppose in theory they

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Speaker 1: could issue new subpoenas that cover different subject matter and

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Speaker 1: different terrain, but it's hard to envision what that looks like.

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Speaker 1: But I mean, the real question of people that you

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Speaker 1: really need to get inside the heads of at this

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Speaker 1: point right now are Senator Tillis and her own Powell

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Speaker 1: and whether Janin Piro's tweets are enough to give them

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Speaker 1: assurance that the investigation is not going to be relaunched

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Speaker 1: at some point down the road after Kevin Watris gets

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Speaker 1: confirmed in the coming weeks.

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Speaker 2: And in other FED news, we are still waiting for

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Speaker 2: the Supreme Court's decision on President Trump's attempts to fire

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Speaker 2: Fed Reserve Governor Lisa Cook over unproven mortgage fraud allegations.

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Speaker 2: Those oral arguments were in January, and every time there's

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Speaker 2: an announcement of decisions by the Supreme Court, we keep

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Speaker 2: expecting that the Cook decision will be among them.

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Speaker 1: Yeah, exactly. I was on the soccer fields down in

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Speaker 1: North Carolina this last Friday at ten am when it

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Speaker 1: was a Supreme colurid opinion date, and I have one

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Speaker 1: eye on my daughter plan I have one eye on

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Speaker 1: my phone, and I was just so relieved when it

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Speaker 1: was not that decision. I think one of the reasons

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Speaker 1: that may be taking longer than people anticipated is that

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Speaker 1: it's sort of wrapped up with the Slaughter case Rebecca

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Speaker 1: Slaughter if he recalls the FTC commissioner who also challenged

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Speaker 1: her termination, and the cases are all sort of wrapped

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Speaker 1: up together because the Supreme Court has indicated that even

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Speaker 1: though the President likely has the authority to remove most

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Speaker 1: agency commissioners at will, and that four cause removal restrictions

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Speaker 1: as to them is unconstitutional, the Federal Reserve is situated

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Speaker 1: differently because it's sort of quasi private. It's not really

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Speaker 1: part of the executive branch. And as a result, the

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Speaker 1: four cause removal restriction in the Federal Reserve Act is

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Speaker 1: likely constitutional. The only question is what does it actually entail.

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Speaker 2: Maybe next Supreme Court opinion day, the Cook decision will

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Speaker 2: come out. Thanks so much for joining me today, Elliott.

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Speaker 2: That's Bloomberg Intelligence Senior litigation analyst Elliott Stein coming up next,

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Speaker 2: Revelations from behind the Curtain at the Supreme Court. I'm

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Speaker 2: June Grosso and this is Bloomberg. Chief Justice John Roberts

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Speaker 2: has long cultivated an image of the Supreme Court as

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Speaker 2: an institution above politics, nine justices who reached their decisions

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Speaker 2: based on the law alone.

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Speaker 5: Well, I think the important thing to understand is that

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Speaker 5: there are three branches of government, and two of them

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Speaker 5: are political.

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Speaker 6: And if you don't like.

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Speaker 5: What the Congress is doing, you're congressman. You can throw

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Speaker 5: them out of office. If you don't like what the

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Speaker 5: president is doing, can throw him out of office. If

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Speaker 5: you don't like what I'm doing, it's just too bad.

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Speaker 6: And now most people would.

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Speaker 5: Say, how can that be? You do the cases are

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Speaker 5: pretty important and you need to understand. Well, it's because

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Speaker 5: the Framers didn't want the courts to be making political decisions.

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Speaker 2: And Roberts famously compare justices to umpires at his confirmation

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Speaker 2: hearings more than twenty years ago.

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Speaker 6: Judges are like umpires. Umpires don't make the rules, they

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Speaker 6: apply them. The role of an and a judge is critical.

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Speaker 6: They make sure everybody plays by the rules, but it

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Speaker 6: is a limited role. Nobody ever went to a ballgame

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Speaker 6: to see the umpire, but.

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Speaker 2: The New York Times has published leaked confidential memos between

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Speaker 2: the justices, and they reveal a very different side of Roberts,

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Speaker 2: certainly not an umpire calling balls and strikes, but rather

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Speaker 2: the driving force to block President Obama's signature environmental policy,

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Speaker 2: pushing the decision through in just five days, without oral arguments,

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Speaker 2: without briefings, and without input from lower court decisions. Why

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Speaker 2: because Obama's power plan, in Robert's words, was quote the

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Speaker 2: most expensive regulation ever imposed on the power sector. And

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Speaker 2: so on February ninth of twenty sixteen, in a five

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Speaker 2: to four vote along partisan lines, the Justice Is issued

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Speaker 2: a one pack paragraph ruling halting Obama's Clean Power Plan.

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Speaker 2: It was just the beginning of the Court's emergency or

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Speaker 2: shadow docket that has been repeatedly used to move President

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Speaker 2: Trump's agenda forward. My guest is an expert in constitutional law,

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Speaker 2: Harold Krant, a professor at the Chicago Kent College of Law.

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Speaker 2: How So, The New York Times has published these until

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Speaker 2: now secret memos about the five days before the Supreme

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Speaker 2: Court issued an order blocking President Obama's Clean Power Plan.

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Speaker 2: Tell us what happened.

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Speaker 7: So, the Court never blocked the power plant on the merits,

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Speaker 7: but rather used its power to stop the action before

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Speaker 7: they could even hear the case, and so they deployed

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Speaker 7: their power to basically protect individuals in the United States

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Speaker 7: from what they saw is overreaching by the Obama administration.

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Speaker 4: So this is an.

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Speaker 7: Overtly political move because they didn't like the power plan,

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Speaker 7: and the memos evinced the fact that they thought that

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Speaker 7: there shouldn't be this much of a drain on the

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Speaker 7: economy in order to protect the environment. And so the

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Speaker 7: way it reads is that the Supreme Court was overtly

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Speaker 7: political in deciding to resolve this case not on the merits,

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Speaker 7: but rather simply on the basis of its emergency docket,

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Speaker 7: thereby stopping the plant before it could be effectuated.

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Speaker 2: So this was pushed through in five days, and some

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Speaker 2: of the justices were in Europe, so it was all

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Speaker 2: done by exchanging memos. And from your reading of those memos,

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Speaker 2: did it seem like the Chief Justice was the one

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Speaker 2: really pushing it through.

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Speaker 7: And what astonishes me is that we know that for

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Speaker 7: years the Chief Justice stood and said, integrity of the

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Speaker 7: Court is my mission. This is the most important thing

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Speaker 7: to me. So we have stature. Yet it was the

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Speaker 7: Chief who decided to use the power of the Supreme

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Speaker 7: Court to try to attain his political ends. So this,

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Speaker 7: to me is what is so amazing, is that while

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Speaker 7: the Chief seemed to have this public persona of respect

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Speaker 7: and integrity of the court, he was the one that

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Speaker 7: instigated the unorthodox use of the court in order to

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Speaker 7: accomplish a political result.

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Speaker 2: Did it seem as if some of the justices didn't recognize,

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Speaker 2: you know, the importance of what was happening here.

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Speaker 7: In retrospect, I think we can all tell this is

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Speaker 7: the start of the aggressive use by the Rabbers Court

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Speaker 7: of the shadow docket. But the justices at the time

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Speaker 7: didn't know that. They thought maybe this is a one off.

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Speaker 7: That the Court was not in session. They were in

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Speaker 7: various places around the world, and so they could have

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Speaker 7: said this is a one off, a unique response that

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Speaker 7: wouldn't create any kind of precedent.

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Speaker 4: That's what it seemed to me from reading the memos.

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Speaker 7: Obviously, now with the lens of history, we look back

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Speaker 7: and say we can see a linear progression. The use

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Speaker 7: of the power the Supreme Court from various political ends

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Speaker 7: has become much more common, but at that time it

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Speaker 7: was rare, and I don't think the justices realized what

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Speaker 7: a precedent this could create.

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Speaker 2: So the Chief Justice said that this was the most

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Speaker 2: expensive regulation ever imposed on the power sector, too big, costly,

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Speaker 2: and consequential for the Court not to act immediately. Yet

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Speaker 2: no justice, not a liberal, not a conservative, ever mentioned

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Speaker 2: the dangers on the opposite side of climate change.

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Speaker 4: There's no discussion of climate change.

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Speaker 7: There was no discussion of letting the challenges to the

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Speaker 7: regulation play out in court. This wasn't a discussion of

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Speaker 7: the usual legality of an administrative action. This was a

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Speaker 7: political reaction to the Obama administration saying this is too extensive,

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Speaker 7: too much, and no consideration of the equities on the

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Speaker 7: other side.

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Speaker 4: It's astonishing, the irony.

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Speaker 2: So Justice Kennedy figures that, you know, well, when we

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Speaker 2: take us on the merits docket, it's going to end

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Speaker 2: up being struck down anyway. But then Justice Scalia passed away,

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Speaker 2: and so the vote on the power Plan would most

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Speaker 2: likely have been four four, and so Obama's power Plan

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Speaker 2: would have gone into effect.

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Speaker 7: Likely obviously we don't know, because we're deprived of that

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Speaker 7: knowledge because of how history played out.

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Speaker 4: The other thing that's amazing about this is.

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Speaker 7: Why the leak, Now you know, is this a leak

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Speaker 7: from clerks who have orded this material for ten years.

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Speaker 7: Is this a leak from the Supreme Court justice that's

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Speaker 7: more and more frustrated with how the Court is acting.

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Speaker 7: We don't know, but it certainly suggests that tensions are

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Speaker 7: aflame within the Supreme Court building.

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Speaker 2: Well, we've seen that with the various justices. I mean,

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Speaker 2: we saw Sodo Mayor criticizing Kavanaugh and then coming out

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Speaker 2: with an apology. We saw Jackson and Kavanaugh quibbling about

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Speaker 2: the shadow in a public appearance, and Jackson giving an

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Speaker 2: hour long speech at Yale Law School basically taking the

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Speaker 2: shadow docket apart and criticizing it. So it seems like

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Speaker 2: the tensions are pretty much out in the open.

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Speaker 1: Yeah.

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Speaker 7: And this idea of, you know, the friendship between RBG

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Speaker 7: and Justice Scalia is you know, a thing of the

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Speaker 7: distant past. And obviously these justices don't like each other.

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Speaker 7: They're sniping at each other, and now they're arguably possibly

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Speaker 7: making leads. So we don't have a very unified or

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Speaker 7: collegial court.

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Speaker 2: I've asked you often in the past, how much are

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Speaker 2: the justices influenced by public discussions of the issues, public discourse,

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Speaker 2: And here they're relying on outside sources like a blog

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Speaker 2: post and television interviews to push their points.

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Speaker 7: We try to teach our students, you know, the Supreme

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Speaker 7: Court justices consider they deliberate, they're influenced by their predecessors.

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Speaker 7: They try to understand the integer of the legal process.

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Speaker 7: And then we're confronted by these memos, the disparate memos

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Speaker 7: that seem to suggest, oh, it's all about politics and

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Speaker 7: our knee jerk reaction to what we think is dangerous

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Speaker 7: for politics. So they're acting as politicians. So what then

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Speaker 7: differentiates the Court from the other institutions is getting a

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Speaker 7: little moneier here, And I think that's the real downside

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Speaker 7: of what they've done, is to sap the Supreme Court

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Speaker 7: of the respect that it should otherwise deserve in our

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Speaker 7: part time system.

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Speaker 2: Yeah, and how many times have we heard the Chief

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Speaker 2: Justice talk about the Supreme Court is not a political institution.

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Speaker 2: We're different from the political branches. And here it's all

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Speaker 2: about politics.

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Speaker 4: It is.

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Speaker 7: And again I can understand why people are disillusioned, because

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Speaker 7: if the Court is thinking about politics, you know, what

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Speaker 7: gives them the advantage as opposed to those in Congress.

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Speaker 2: Was this in any sense? Hence President Obama versus Chief

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Speaker 2: Justice Roberts, because I mean Obama was one of just

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Speaker 2: twenty two Senators who voted against roberts confirmation, and here

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Speaker 2: it seems like the Chief Justice is eager to assert

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Speaker 2: the authority of the Supreme Court against Obama.

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Speaker 7: I don't know how much of this is reaction to

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Speaker 7: the friction between Chief Justice Roberts and President Obama. I

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Speaker 7: think it's more about President Obama's policies that he just

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Speaker 7: thought that the Democrat was wrongheaded in trying to sort

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Speaker 7: of quickly change the ground in terms of climate change

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Speaker 7: and limiting pollution, and saw his responsibility as the Court

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Speaker 7: to do something about the rapid change that was at

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Speaker 7: play within the Environmental Protection Agency.

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Speaker 2: Do you think that there'll be any fallout from this

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Speaker 2: publication of these notes.

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Speaker 7: Well, we saw that the first Jobs decison, if you remember,

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Speaker 7: was released by someone, and we knew what the top

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Speaker 7: decision was going to say overruling their right to an abortion,

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Speaker 7: and tighter security was imposed, but nothing really happened. Again,

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Speaker 7: we don't know if the leak is from now or

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Speaker 7: from ten years ago. There may be some more security,

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Speaker 7: but I think now in this age, there won't be

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Speaker 7: too many more steps that can be undertaken by the

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Speaker 7: Court to prevent this kind of leaking. But the leaking

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Speaker 7: isn't good for the court. Clearly, this is a court

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Speaker 7: that has lost its civility but also its ability to

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Speaker 7: be collegial.

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Speaker 2: And also I'm wondering if, since now we have this

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Speaker 2: huge leak you mentioned the leak before, whether the justices

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Speaker 2: will be more reluctant to put things into writing that

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Speaker 2: can be leaked.

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Speaker 4: Oh.

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Speaker 7: Absolutely, I think that if you know that your rough

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Speaker 7: draft in your comments, Snyder or otherwise may end up

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Speaker 7: in the New York Times, you're going to think twice

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Speaker 7: before you write that down. And that's also not good

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Speaker 7: the court. Right, Sometimes it's really important to have a

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Speaker 7: sharply worded memo, some kind of comments about the wisdom

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Speaker 7: of a particular argument that another justice may write, and

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Speaker 7: the justices will be more restrained in showing candor for

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Speaker 7: fear of the disclosure.

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Speaker 2: And hell, I want to get your reaction to this

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Speaker 2: speech by Justice Thomas, ostensibly to commemorate the two hundred

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Speaker 2: and fiftieth anniversary of the Declaration of Independence, but it

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Speaker 2: devolved into an attack on progressivism.

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Speaker 6: Progressivism seeks to replace the basic premises of the Declaration

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Speaker 6: of Independence and hence our form of government.

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Speaker 2: Thomas said that Stalin, Hitler, Mussolini, and Mao were all

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Speaker 2: intertwined with the rise of progressivism, as was racial segregation, eugenics,

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Speaker 2: and other evils.

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Speaker 7: I do think there's a tie here, both with the

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Speaker 7: Roberts decision and with Thomas. There is such a deep

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Speaker 7: seated hatred for the administrative state and Justice Thomas calls

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Speaker 7: it progressivism. What he's talking about is this idea of

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Speaker 7: these experts and government, and both Chief Justice Roberts and

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Speaker 7: Justice Thomas sort of events a real distrust for anybody

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Speaker 7: who believes in bureaucratic government, anybody who relies on the

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Speaker 7: government to actually respond to our nation's woes and to

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Speaker 7: try to help up the country.

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Speaker 2: Well, the Roberts Court's attacks on the administrative state have

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Speaker 2: been pretty clear, Thanks Hal. That's Professor Harold Krant to

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Speaker 2: the Chicago Kent College of Law coming up next, and

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Speaker 2: Appellate Court rules it's okay to force schools to post

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Speaker 2: the Ten Commandments in classrooms. I'm June Grosso and you're

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Speaker 2: listening to Bloomberg. President Trump cheered laws requiring the Ten

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Speaker 2: Commandments to be displayed in schools. While speaking to a

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Speaker 2: group of evangelical Christians as he campaigned in twenty twenty four.

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Speaker 7: Who likes the Ten Commandment by the way going up

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Speaker 7: in the school. They think it's such a bad thing,

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Speaker 7: I said, Has anyone read the thou shalt not steal?

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Speaker 2: Thou shalt?

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Speaker 1: I mean, has anybody read this incredible stuff?

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Speaker 4: It's just incredible.

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Speaker 1: They don't want it to go up.

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Speaker 2: And Now, in a significant win for conservatives who've been

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Speaker 2: trying to inject more religion into classrooms, the Fifth Circuit

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Speaker 2: Court of Appeals has ruled that Texas can force public

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Speaker 2: schools to display the Ten Commandments in classrooms. A nine

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Speaker 2: to eight decision of the Full Appellate Court, considered the

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Speaker 2: most conservative circuit court in the country, found that the

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Speaker 2: Texas law doesn't violate the separation of church and state.

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Speaker 2: Challenges of the law had argued that displaying the Ten

441
00:25:48,480 --> 00:25:53,760
Speaker 2: Commandments in classrooms amounts to proselytizing and violates the rights

442
00:25:53,760 --> 00:25:57,200
Speaker 2: of parents to decide when, how and if to provide

443
00:25:57,240 --> 00:26:01,480
Speaker 2: religious instruction to their children. Case is expected to end

444
00:26:01,560 --> 00:26:05,240
Speaker 2: up at the Supreme Court, where the conservative majority has

445
00:26:05,359 --> 00:26:09,680
Speaker 2: steadily been expanding religious rights. My guest is an expert

446
00:26:09,680 --> 00:26:13,440
Speaker 2: in the First Amendment, Caroline Malacorbin, a professor at the

447
00:26:13,520 --> 00:26:17,119
Speaker 2: University of Miami Law School. Caroline, to put this case

448
00:26:17,280 --> 00:26:20,920
Speaker 2: into context, tell us about the Texas law and Supreme

449
00:26:20,960 --> 00:26:21,840
Speaker 2: Court precedent.

450
00:26:22,200 --> 00:26:26,920
Speaker 8: The Texas law is pretty straightforward. It basically required that

451
00:26:27,040 --> 00:26:31,800
Speaker 8: in every single public school classroom there had to be

452
00:26:32,000 --> 00:26:36,719
Speaker 8: a Ten Commandments poster. It had to be sufficiently large,

453
00:26:37,119 --> 00:26:40,639
Speaker 8: easy to read, easy to see, there couldn't be anything

454
00:26:40,640 --> 00:26:44,280
Speaker 8: else around it, and they dictated the particular version of

455
00:26:44,280 --> 00:26:48,640
Speaker 8: the Ten Commandments. Now, it's not surprising that this mandatory

456
00:26:48,760 --> 00:26:52,800
Speaker 8: scripture on the wall triggered an Establishment Clause violation. The

457
00:26:52,920 --> 00:26:56,000
Speaker 8: Establishment Clause, of course, is that part of the First

458
00:26:56,040 --> 00:27:00,520
Speaker 8: Amendment of the US Constitution, which required some separation between

459
00:27:00,600 --> 00:27:03,879
Speaker 8: church and state. Texas was not the first state to

460
00:27:04,000 --> 00:27:08,000
Speaker 8: mandate Ten Commandments in the public schools. Kentucky had tried

461
00:27:08,040 --> 00:27:10,720
Speaker 8: the same thing about forty five years ago, and the

462
00:27:10,760 --> 00:27:14,199
Speaker 8: Supreme Court had already made a decision about it in

463
00:27:14,240 --> 00:27:15,680
Speaker 8: a case known as Stone v.

464
00:27:15,800 --> 00:27:16,200
Speaker 1: Graham.

465
00:27:16,520 --> 00:27:20,439
Speaker 8: The Supreme Court held, this is a blatant violation of

466
00:27:20,800 --> 00:27:25,520
Speaker 8: the Establishment Clause. There is no secular purpose for mandating

467
00:27:25,640 --> 00:27:30,000
Speaker 8: biblical texts on schoolroom walls when you're not even incorporating

468
00:27:30,040 --> 00:27:35,040
Speaker 8: it into any kind of secular education, it is unconstitutional.

469
00:27:35,280 --> 00:27:38,800
Speaker 8: So there is a case directly on point that holds

470
00:27:38,840 --> 00:27:43,000
Speaker 8: this kind of law violates the Establishment Clause. Unfortunately, the

471
00:27:43,160 --> 00:27:47,760
Speaker 8: precedent doesn't stop there, because the Roberts Court has been

472
00:27:47,960 --> 00:27:52,479
Speaker 8: very busy trying to dismantle protections of the Establishment Clause.

473
00:27:52,840 --> 00:27:56,919
Speaker 8: And one way it's been doing that is by rejecting

474
00:27:57,240 --> 00:28:00,840
Speaker 8: earlier tests that the Supreme Court has relied on. And

475
00:28:01,119 --> 00:28:04,879
Speaker 8: the doctrine that was part of the decision in the

476
00:28:05,080 --> 00:28:08,760
Speaker 8: earlier ten Commandment's case was something known as the Lemon test,

477
00:28:09,400 --> 00:28:12,800
Speaker 8: and the Lemon test said, listen, you're violating the Establishment

478
00:28:12,800 --> 00:28:16,800
Speaker 8: Clause if your law doesn't have a primarily secular purpose

479
00:28:16,960 --> 00:28:20,200
Speaker 8: or it doesn't have a primarily secular effect. And the

480
00:28:20,280 --> 00:28:24,879
Speaker 8: Roberts Court has said, this is no longer the test

481
00:28:24,960 --> 00:28:29,000
Speaker 8: we're going to use in the Establishment Clause. Instead, the

482
00:28:29,320 --> 00:28:33,240
Speaker 8: touchstone for an Establishment Clause analysis is to look to

483
00:28:33,920 --> 00:28:38,800
Speaker 8: history and original understandings, and so this is what faced

484
00:28:38,840 --> 00:28:40,600
Speaker 8: the Fifth Circuit Court of Appeals.

485
00:28:41,000 --> 00:28:44,680
Speaker 2: Only the Supreme Court can overturn its own precedent, So

486
00:28:45,080 --> 00:28:48,440
Speaker 2: isn't strong. The Gram still the precedent.

487
00:28:49,120 --> 00:28:53,200
Speaker 8: Now, the courts below had said, listen, there's still a

488
00:28:53,240 --> 00:28:56,800
Speaker 8: Supreme Court case that's directly on point. It has not

489
00:28:56,920 --> 00:29:02,520
Speaker 8: been explicitly overruled, and therefore it still controls, and therefore

490
00:29:02,800 --> 00:29:06,400
Speaker 8: this is not a difficult case. The Fifth Circuit, on

491
00:29:06,440 --> 00:29:11,720
Speaker 8: the other hand, argued the precedent depended on a test

492
00:29:11,920 --> 00:29:15,640
Speaker 8: that has since been rejected, and not only did it

493
00:29:15,960 --> 00:29:21,240
Speaker 8: reject Stone free Gram as controlling precedent, it interpreted the

494
00:29:21,280 --> 00:29:27,400
Speaker 8: Supreme Court guidance to look to history and understanding in

495
00:29:27,440 --> 00:29:32,360
Speaker 8: a very narrow way. It basically adapted a concurrence from

496
00:29:32,480 --> 00:29:36,000
Speaker 8: Gorsuch that said, and this is the Fifth Circuit's new

497
00:29:36,120 --> 00:29:40,560
Speaker 8: rule for establishment clause challenges is if this does not

498
00:29:40,760 --> 00:29:46,960
Speaker 8: resemble something the original founders would consider a religious establishment,

499
00:29:47,360 --> 00:29:50,680
Speaker 8: then it doesn't violate the establishment clause. And there was

500
00:29:50,720 --> 00:29:51,640
Speaker 8: a short.

501
00:29:51,360 --> 00:29:52,320
Speaker 1: List of things.

502
00:29:52,560 --> 00:29:55,080
Speaker 8: It said, these are the things that the founders thought

503
00:29:55,240 --> 00:29:58,800
Speaker 8: was a religious establishment, and this does not resemble any

504
00:29:58,840 --> 00:30:03,360
Speaker 8: of them, and their it doesn't violate the adoption clause.

505
00:30:04,040 --> 00:30:08,280
Speaker 8: So that's what it held. It rejected the Supreme Court's

506
00:30:08,280 --> 00:30:13,080
Speaker 8: existing precedent. It interpreted the Supreme Court's turned to history

507
00:30:13,200 --> 00:30:17,080
Speaker 8: in a very particular narrow way and said this does

508
00:30:17,160 --> 00:30:20,400
Speaker 8: not resemble something that was an establishment at the time

509
00:30:20,640 --> 00:30:26,880
Speaker 8: of her country's origins, and therefore no problem whatsoever to

510
00:30:27,160 --> 00:30:31,600
Speaker 8: have a Protestant version of the Ten Commandments on every

511
00:30:31,640 --> 00:30:36,240
Speaker 8: single classroom in every single public school in Texas, regardless

512
00:30:36,280 --> 00:30:39,080
Speaker 8: of whether it's the science lab or the library, or

513
00:30:39,120 --> 00:30:41,880
Speaker 8: the music room or your English class Caroline.

514
00:30:41,920 --> 00:30:44,680
Speaker 2: What also struck me is that there was that Supreme

515
00:30:44,760 --> 00:30:47,680
Speaker 2: Court case my Mood that you and I discussed at

516
00:30:47,680 --> 00:30:52,000
Speaker 2: the time, saying that parents could opt their children out

517
00:30:52,080 --> 00:30:57,400
Speaker 2: of LGBTQ material that contradicted their religious beliefs, and tire

518
00:30:57,480 --> 00:31:01,200
Speaker 2: the Fifth Circuit said, the measure doesn't strict parents' right

519
00:31:01,280 --> 00:31:04,480
Speaker 2: to direct their children's religious upbringing. I mean, how do

520
00:31:04,560 --> 00:31:06,480
Speaker 2: they possibly distinguish that case.

521
00:31:06,960 --> 00:31:11,560
Speaker 8: So this is the case involving picture books with lgbt

522
00:31:11,760 --> 00:31:15,080
Speaker 8: characters in them that were part of the English curriculum

523
00:31:15,520 --> 00:31:20,440
Speaker 8: in some public schools, and some conservative religious folks claimed

524
00:31:20,960 --> 00:31:25,520
Speaker 8: that having their children hear these stories about same sex

525
00:31:25,600 --> 00:31:30,680
Speaker 8: marriage when that same sex marriage was not condemned, violated

526
00:31:30,720 --> 00:31:35,000
Speaker 8: their religious rights and therefore they had a free exercise

527
00:31:35,160 --> 00:31:38,040
Speaker 8: right to opt their children out of hearing their stories,

528
00:31:38,560 --> 00:31:43,960
Speaker 8: and the Supreme Court, always sympathetic to very conservative Christian concerns,

529
00:31:44,120 --> 00:31:48,560
Speaker 8: said absolutely, it's a violation of your free exercise rights

530
00:31:48,560 --> 00:31:52,640
Speaker 8: for your child to be exposed to same sex marriages

531
00:31:53,000 --> 00:31:56,479
Speaker 8: in a positive way, because that's contrary to your anti

532
00:31:56,520 --> 00:31:59,280
Speaker 8: same sex marriage beliefs, and you are out to opt out.

533
00:32:00,120 --> 00:32:04,080
Speaker 8: Is in this in even more direct affront to non

534
00:32:04,200 --> 00:32:09,960
Speaker 8: adherence beliefs, to be presented with the Ten Commandments everywhere

535
00:32:10,000 --> 00:32:13,239
Speaker 8: they turned, which is contrary to their own beliefs. Like

536
00:32:13,320 --> 00:32:17,040
Speaker 8: the clashes. Just like the same sex marriage clashes with

537
00:32:17,080 --> 00:32:21,120
Speaker 8: my beliefs, the Ten Commandment clashes even more directly because

538
00:32:21,160 --> 00:32:27,000
Speaker 8: they're religious, and surely the Mood case would support the

539
00:32:27,480 --> 00:32:31,080
Speaker 8: approach to the Ten Commandments as something problematic and something

540
00:32:31,120 --> 00:32:34,440
Speaker 8: that should not be allowed. The Fifth Circuit distinguished it

541
00:32:34,480 --> 00:32:39,600
Speaker 8: in two ways. They exaggerated the harm to the parents

542
00:32:39,680 --> 00:32:43,640
Speaker 8: in the Mood and they ignored the harms to the

543
00:32:43,720 --> 00:32:47,440
Speaker 8: parents who opposed the Ten Commandments. The other thing, as

544
00:32:47,520 --> 00:32:50,520
Speaker 8: one of the dissent points out, that they completely ignore,

545
00:32:51,200 --> 00:32:56,240
Speaker 8: is that the Supreme Court has historically been very mindful

546
00:32:57,080 --> 00:33:01,640
Speaker 8: of the establishment clause in the public school context for

547
00:33:01,720 --> 00:33:06,720
Speaker 8: several reasons. One the state requires children to be there,

548
00:33:07,240 --> 00:33:11,840
Speaker 8: so they're already using coercion and requiring their attendance. Second,

549
00:33:12,160 --> 00:33:15,800
Speaker 8: these are young children. These are impressionable children, and they're

550
00:33:15,920 --> 00:33:19,760
Speaker 8: very influenced by what happens in school. They're very influenced

551
00:33:19,760 --> 00:33:21,840
Speaker 8: by their teachers, by their peers. There's a lot of

552
00:33:21,960 --> 00:33:26,480
Speaker 8: pressure on them to conform. And Third, this whole idea

553
00:33:26,560 --> 00:33:30,880
Speaker 8: is parents are trusting them to schools on the understanding

554
00:33:30,920 --> 00:33:33,040
Speaker 8: that they're not going to try and conculcate them in

555
00:33:33,120 --> 00:33:36,920
Speaker 8: a religion not their own. And so even when the

556
00:33:36,960 --> 00:33:41,920
Speaker 8: Supreme Court was moving away from more protection under the

557
00:33:42,000 --> 00:33:47,920
Speaker 8: Establishment Clause, it has historically been especially careful when it

558
00:33:47,960 --> 00:33:52,080
Speaker 8: comes to children in public schools, and there was zero

559
00:33:52,320 --> 00:33:54,800
Speaker 8: mention of that in the majority's opinion.

560
00:33:55,200 --> 00:33:58,400
Speaker 2: Although the Supreme Court has allowed a high school football

561
00:33:58,480 --> 00:34:02,560
Speaker 2: coach to pray on them fifty yard line right after games,

562
00:34:03,120 --> 00:34:06,960
Speaker 2: saying his players wouldn't feel coerce to pray alongside him.

563
00:34:07,400 --> 00:34:11,280
Speaker 2: So not if. But when this gets to the Supreme Court,

564
00:34:11,800 --> 00:34:12,879
Speaker 2: how do you think they'll rule.

565
00:34:13,320 --> 00:34:17,080
Speaker 8: I have little confidence in a principal decision from the

566
00:34:17,120 --> 00:34:22,000
Speaker 8: current Supreme Court when it comes especially to issues involving

567
00:34:22,120 --> 00:34:25,839
Speaker 8: the rights of conservative Christians and doing what they want, right.

568
00:34:25,880 --> 00:34:28,040
Speaker 8: I think it's a white Christian nationalist court. I think

569
00:34:28,080 --> 00:34:31,600
Speaker 8: they'll decide whatever is favorable to the white Christian nationalists.

570
00:34:31,600 --> 00:34:35,799
Speaker 8: So I think that they would probably end up upholding

571
00:34:35,840 --> 00:34:39,440
Speaker 8: this law. Now, there are a lot of different tactics

572
00:34:39,440 --> 00:34:42,040
Speaker 8: that they might use to do it. They might not

573
00:34:42,320 --> 00:34:45,440
Speaker 8: do what the Fifth Circuit did. They might try and

574
00:34:45,520 --> 00:34:49,680
Speaker 8: dodge it by not finding standing. They might do it

575
00:34:49,800 --> 00:34:53,799
Speaker 8: by something I call secular washing. What they might try

576
00:34:53,840 --> 00:34:57,759
Speaker 8: to argue is that the Ten Commandments is not ultimately

577
00:34:57,920 --> 00:35:04,160
Speaker 8: a religious doctrine but secular item. It's not about inculcating

578
00:35:04,360 --> 00:35:09,240
Speaker 8: particular religious beliefs. It's about explaining or showing the role

579
00:35:09,480 --> 00:35:14,640
Speaker 8: of religion in our nation's history, trying to make clear

580
00:35:14,840 --> 00:35:18,840
Speaker 8: the origins of our political structure. None of that's true.

581
00:35:18,880 --> 00:35:21,879
Speaker 8: But one thing the Supreme Court has done in other

582
00:35:22,080 --> 00:35:27,320
Speaker 8: cases where there is some object that's obviously inherently religious

583
00:35:27,360 --> 00:35:31,680
Speaker 8: and therefore should be problematic under the establishment clause, is

584
00:35:31,680 --> 00:35:33,640
Speaker 8: the Court has said, no, no, no, this is not

585
00:35:33,719 --> 00:35:36,680
Speaker 8: actually religious like you think. So it's not a problem

586
00:35:36,760 --> 00:35:39,040
Speaker 8: like you think. And one particular case that comes to

587
00:35:39,120 --> 00:35:43,120
Speaker 8: mind is the challenge to the very large Latin Cross

588
00:35:43,160 --> 00:35:45,959
Speaker 8: monument in the middle of the highway, and you think

589
00:35:46,080 --> 00:35:49,600
Speaker 8: that's the pre eminent symbol of Christianity. And the Court

590
00:35:49,680 --> 00:35:52,360
Speaker 8: was like, no, no, no, no, no, no, it's not. You

591
00:35:52,360 --> 00:35:57,040
Speaker 8: don't understand. It's actually just a symbol of World War One,

592
00:35:57,760 --> 00:36:02,560
Speaker 8: and therefore there's no problem with it. And they've done

593
00:36:02,600 --> 00:36:05,200
Speaker 8: that with the Ten Commandments as well. They've already laid

594
00:36:05,239 --> 00:36:09,000
Speaker 8: the groundwork for arguing that the Ten Commandments, it's not

595
00:36:09,160 --> 00:36:13,200
Speaker 8: religious scripture, it's not trying to proselytize. It's an educational

596
00:36:13,280 --> 00:36:18,120
Speaker 8: document about our country's history and the origins of our

597
00:36:18,480 --> 00:36:19,960
Speaker 8: law and government.

598
00:36:20,160 --> 00:36:22,080
Speaker 2: Well, it will certainly be a while before this gets

599
00:36:22,160 --> 00:36:24,160
Speaker 2: up to the Supreme Court and we find out the

600
00:36:24,360 --> 00:36:27,960
Speaker 2: answer to that question. It's always great to have you on, Caroline,

601
00:36:27,960 --> 00:36:32,279
Speaker 2: Thanks so much. That's Professor Caroline Malacorbin of the University

602
00:36:32,280 --> 00:36:35,279
Speaker 2: of Miami Law School. And that's it for this edition

603
00:36:35,280 --> 00:36:37,920
Speaker 2: of the Bloomberg Law Show. Remember you can always get

604
00:36:37,960 --> 00:36:41,120
Speaker 2: the latest legal news on our Bloomberg Law Podcast. You

605
00:36:41,160 --> 00:36:45,200
Speaker 2: can find them on Apple Podcasts, Spotify, and at www

606
00:36:45,360 --> 00:36:49,640
Speaker 2: dot Bloomberg dot com, slash podcast Slash Law, and remember

607
00:36:49,680 --> 00:36:52,640
Speaker 2: to tune into the Bloomberg Law Show every weeknight at

608
00:36:52,640 --> 00:36:56,120
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609
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Speaker 2: listening to Bloomberg