Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: Voters and advocacy groups in more than half the states
Speaker 2: are fighting to remove former President Donald Trump from state
Speaker 2: ballots under the disqualification clause of Section three of the
Speaker 2: fourteenth Amendment, which states that no person shall hold office
Speaker 2: if they have previously taken an oath as a member
Speaker 2: of Congress or as an officer of the United States,
Speaker 2: and engaged in insurrection or rebellion against the Constitution. But
Speaker 2: secretaries of state like Minnesota's Steve Simon, say they can
Speaker 2: enforce the fourteenth Amendment on their own.
Speaker 3: The ones who are going to make the legal cause
Speaker 3: about who engaged in what conduct and whether it rises
Speaker 3: to the level of constitutional disqualification, that's what a court
Speaker 3: will do.
Speaker 2: But so far courts in Colorado, Michigan, and Minnesota have
Speaker 2: refused to disqualified Trump. In fact, after a five days trial,
Speaker 2: Colorado Judge Sarah Wallace found that Trump did engage in
Speaker 2: insurrection during the January sixth attack on the US Capitol,
Speaker 2: but said he was not covered by Section three. Here
Speaker 2: to help explain it all is elections law expert Richard Brofald,
Speaker 2: a professor at Columbia Law School, Rich tell us about
Speaker 2: these legal challenges under Section three of the fourteenth Amendment.
Speaker 4: So there is a series of challenges of being brought
Speaker 4: to former President Trump's eligibility to be a candidate for
Speaker 4: president because of his actions during the course of the
Speaker 4: January sixth and attack on the Capitol and the real
Speaker 4: questions whether or not that is an insurrection. This has
Speaker 4: to do with a provision of the Fourteenth Amendment that
Speaker 4: was adopted in the aftermath of the Civil War that
Speaker 4: was intended to keep former US officials who then joined
Speaker 4: the Confederacy from being eligible to serve in US office again.
Speaker 4: It specifically says that for certain people, and one question
Speaker 4: is who's covered by it engaged in insurrection, that's the
Speaker 4: key language. If they engage in insurrection against the Constitution
Speaker 4: of the United States, they are ineligible to hold certain
Speaker 4: offices in the United States. And so number of people
Speaker 4: have argued that former President Trump, because of his activities
Speaker 4: and inactivities on January sixth, falls within that prohibition of
Speaker 4: being eligible to be president again. And so this has
Speaker 4: led to extended academic arguments and now a series of lawsuits.
Speaker 4: And these lawsuits raise a bunch of questions is what
Speaker 4: happened on January sixth and insurrection? Did the President engage
Speaker 4: in the insurrection by various speeches he gave, in statements
Speaker 4: he made, and actions he took and didn't take going
Speaker 4: up to and on January sixth, And another question that
Speaker 4: turns out to be surprisingly complicated is whether he's one
Speaker 4: of the people who is prohibited from holding office again,
Speaker 4: because the language section three of the fourteenth of them
Speaker 4: and uses is no person shall be a senator or
Speaker 4: representative in Congress, or an elector for president to vice president,
Speaker 4: or hold any office under the United States. And the
Speaker 4: question that has come up as with the president is
Speaker 4: somebody who holds an office under the United States. And
Speaker 4: although it may seem pretty obvious that the president obviously
Speaker 4: holds an office under the United States, many people have
Speaker 4: argued that the presidency is distinct and is not simply
Speaker 4: an office under the United States, but is its own thing.
Speaker 2: This Colorado Judge Wallace issued the first legal ruling that
Speaker 2: concluded that the former president had incited insurrection through his
Speaker 2: actions on January sixth, and that the First Amendment doesn't
Speaker 2: protect his actions. But then she went on to find
Speaker 2: that Section three doesn't cover presidents.
Speaker 4: That's correct, that's right. So yes, that's absolutely right. She
Speaker 4: basically said that what happened on January sixth was an insurrection,
Speaker 4: which is a violent attack on the government the United States,
Speaker 4: an official action the United States, which is counting the
Speaker 4: electoral votes. That President Trump engaged in the insurrection through
Speaker 4: the speeches he gave in citing the activity and his
Speaker 4: general build up in the days before January sixth of
Speaker 4: a sense amongst his supporters that something needs to be
Speaker 4: done to block accounting the electoral vote. And yes, the
Speaker 4: various statements he made, she concluded were not protected by
Speaker 4: the First Amendment because they were intended to incite violence.
Speaker 4: But then she concluded that he's not somebody subject to
Speaker 4: section three of a fourteenth Amendment because Section three the
Speaker 4: fourteenth Amendment refers to a senator, a representative in Congress,
Speaker 4: an elector for a president, or any other office civil
Speaker 4: or military under the United States or under any state.
Speaker 4: And the question comes up is whether or not the
Speaker 4: presidency is an office under the United States. And although
Speaker 4: intuitively it might seem that presidency of the ultimate office
Speaker 4: under the United States, she concluded that the the presidency
Speaker 4: is not, and she gave a couple of reasons for that.
Speaker 4: One is the way the Amendment is written and kind
Speaker 4: of written by naming some specific offices and kind of
Speaker 4: level of seniority for senator than representative, and sort it's
Speaker 4: noteworthy it doesn't actually stay president. And then she notes
Speaker 4: that there are several other provisions in the Constitution that
Speaker 4: distinguished between the president as a distinctive position and various
Speaker 4: kinds of offices in civil offices, and so she concluded
Speaker 4: that the presidency is itself not covered by the Fourteenth
Speaker 4: Amendment Section three.
Speaker 2: Trump's lawyer Scott Goessler, referring to the judge's conclusion that
Speaker 2: Trump engaged in insurrection, said it was a little bit
Speaker 2: unusual for her to spend a lot of time talking
Speaker 2: about that and then at the end rule that the
Speaker 2: Fourteenth Amendment didn't apply.
Speaker 4: It is interesting the opinion is one hundred and two
Speaker 4: pages long, and some of that is just there of
Speaker 4: procedural stuff, but she doesn't actually get to this question
Speaker 4: whether or not the presidency is an office under the
Speaker 4: United States or in office covered by section three of
Speaker 4: the Fourteenth Amendment until about page ninety five of this
Speaker 4: one hundred and two page opinion. So it does seem
Speaker 4: a bit odd. I guess you could say that obviously
Speaker 4: she's not the final say she is just the lower
Speaker 4: court judge. It's going to go up through the Colorado
Speaker 4: court system and maybe ultimately to the US Supreme Court.
Speaker 4: And so maybe in defense of what she did is
Speaker 4: she basically says, well, if you reverse me on the
Speaker 4: question of whether or not the presidency is an office
Speaker 4: covered by this, I've made findings on everything else that's relevant.
Speaker 4: Because other people have argued either that January sixth didn't
Speaker 4: rise at the level of an insurrection. It was a
Speaker 4: riot but not as serious an insurrection, or that President
Speaker 4: Trump didn't engage in the insurrection, that all he did
Speaker 4: was give speeches by make statements, but he didn't actually
Speaker 4: engage in the insurrection. So she basically said, you know,
Speaker 4: in some sense, if you look at the text of
Speaker 4: the amendment, it really requires thinks that there be an insurrection,
Speaker 4: that the person had to be engaged in it, and
Speaker 4: that it applied to the presidency. And so she has
Speaker 4: made rulings that it was an insurrection and that he
Speaker 4: did engage in it, but that the Fourteenth Amendment doesn't
Speaker 4: apply to him. So conceivably a higher court, an appeals court,
Speaker 4: or the Colorado Supreme Court or the US Supreme Court
Speaker 4: could conclude that the presidency is covered, in which case
Speaker 4: they'd have her findings on the other two issues.
Speaker 2: All the cases, you know, trying to get him off
Speaker 2: the ballot via the fourteenth Amendment, have they all failed?
Speaker 4: They're all at the early stages that maybe it's more
Speaker 4: accurate to say none has succeeded. Okay, but they're all
Speaker 4: at fairly early stages. I mean, the elections coming up soon,
Speaker 4: and right now the only real question is is being
Speaker 4: on the primary ballot. And some people have argued, well,
Speaker 4: the primary is premature. It's really on about the general election.
Speaker 4: But yeah, there are there are challenges percolating in a
Speaker 4: number of states. Certainly, nothing has succeeded yet, but I
Speaker 4: don't think there's has been a definitive ruling by the
Speaker 4: highest court of any state yet either.
Speaker 2: And does this seem like something the Supreme Court should
Speaker 2: take up.
Speaker 4: It's obviously an incredibly important question at the moment, given
Speaker 4: the lack of any law on this. You know, some
Speaker 4: great usually only comes in after there's been a you know,
Speaker 4: a final lower court judgment, and especially if there's been
Speaker 4: some disagreement, this is something that they might want to settle.
Speaker 4: I mean, I think the real anxiety that many people
Speaker 4: have is what happens when let's say Trump wins, but
Speaker 4: members of Congress don't think that they should certify his
Speaker 4: election because there's some members of Congress think that he
Speaker 4: violated the fourteenth Amendment. And what happens if this becomes
Speaker 4: an issue. January sixth to twenty twenty five.
Speaker 2: Coming up next on the Bloomberg Lawn Show, I'll continue
Speaker 2: this conversation with Columbia Law School professor Richard Brofault, and
Speaker 2: we'll talk about the Eighth Circuit Startling decision that would
Speaker 2: be a death blow to the Voting Rights Act. I'm
Speaker 2: June Grosso and you're listening to Bloomberg. One of the
Speaker 2: most important pieces of civil rights legislation in our history,
Speaker 2: the Voting Rights Act, was signed into law in August
Speaker 2: of nineteen sixty five by President Lyndon Johnson.
Speaker 3: Today is a triumph for freedom, as huge as any
Speaker 3: victory that's ever been won on any battle field.
Speaker 2: But the Supreme Court gotted a core part of that
Speaker 2: landmark law in twenty thirteen and now are ruling by
Speaker 2: the Eighth Circuit Court of Appeals threatens to deal a
Speaker 2: death blow to the Act. I've been talking to Columbia
Speaker 2: Law School professor Richard breflt Rich. Would you say the
Speaker 2: Voting Rights Act is the most important piece of federal
Speaker 2: legislation protecting voting rights today?
Speaker 4: Oh? Yes, a Voting Rights Act of nineteen sixty five,
Speaker 4: as it meant in nineteen eighty two is the number
Speaker 4: one federal statute protecting voting rights.
Speaker 2: And tell us what happened in twenty thirteen and what's
Speaker 2: left of the Act before we get to what's happened
Speaker 2: to it recently.
Speaker 4: So the Voting Rights Act of sixty five has significally
Speaker 4: mind in eighty two had many preditions, but two of
Speaker 4: them really stood out. One was what's called Section five,
Speaker 4: which had this concept of preclearance, and it basically said
Speaker 4: that for certain problem jurisdictions of jurisdictions which have a
Speaker 4: serious track record of violating voting rights, as proven by
Speaker 4: certain tests in the statute, when they change their voting laws,
Speaker 4: that has to be pre approved, pre cleared, as the
Speaker 4: language the statue uses, either by the Department of Justice
Speaker 4: or by a federal court before they it comes into effect,
Speaker 4: and it kind of reverses the presumption. It says for
Speaker 4: those problem jurisdictions, they have to prove that their new
Speaker 4: law or their new change in voting practice or procedure
Speaker 4: does not burden minority voting rights. So the burden is
Speaker 4: actually on the state of the local government to show
Speaker 4: that they're not clicting any harm. In twenty thirteen, the
Speaker 4: Supreme Court struck down the part of the statute that
Speaker 4: provided the definition of the jurisdictions that were subject to
Speaker 4: this special treatment. They were called cover jurisdictions, and the
Speaker 4: Court said that Congress basically had failed to update the
Speaker 4: formula that decides what a cover jurisdiction is. It was
Speaker 4: last updated in the nineteen seventies, and the Court said
Speaker 4: it simply cannot be right that that's the right formula
Speaker 4: now in a statute which the substance of the statute
Speaker 4: was as most recently updated in two thousand and six.
Speaker 4: So what the Court said in twenty thirteen is that provision,
Speaker 4: that preclearance provision, it is technically still on the books,
Speaker 4: but it has nothing to operate on because the provision
Speaker 4: that it works with which is the definition of the
Speaker 4: cover jurisdictions is invalid. So with that decision in twenty thirteen,
Speaker 4: the Supreme Court eliminated clearance to Clarence is technically on
Speaker 4: the books, but there's nothing for it to do. The
Speaker 4: other major provision of the Act is called Section two,
Speaker 4: and that's the one that basically is used to challenge
Speaker 4: voting rules around the country which are either intentionally discriminatory
Speaker 4: or have a discriminatory impact. And really for the parts
Speaker 4: of the country that were never under Section five, section
Speaker 4: two is where the action was, and since twenty thirteen
Speaker 4: now is for all of the country. Section two is
Speaker 4: where the action is. Now. In Section two, the burden
Speaker 4: is on a plaintiff to show that a state or
Speaker 4: local law is discriminatory, either in intent or in effect
Speaker 4: against We're protected by the Act, which are primarily based
Speaker 4: on race or language minority status. But nonetheless Section two
Speaker 4: has been particularly after the twenty thirteen decision that's known
Speaker 4: as Shelby County. Section two is clearly the major, by far,
Speaker 4: the major provision of the Act for enforcing voting rights.
Speaker 2: Now, I would say, out of the blue, a two
Speaker 2: to one ruling of the Eighth Circuit by a Trump
Speaker 2: appointee and a George W. Bush appointe with another Bush
Speaker 2: appoint in descent says that only the federal government can
Speaker 2: bring suits to vindicate voting rights under Section two.
Speaker 1: Right where did this come from?
Speaker 4: So their argument is that Section two, which makes all
Speaker 4: sorts of voting practices and procedures illegal, doesn't explicitly say
Speaker 4: that people who are injured by these practices and procedures
Speaker 4: have a right to bring a lawsuit what's known as
Speaker 4: a private right of action. The statute prohibits that basically
Speaker 4: declares that various kinds of voting practices and procedures which
Speaker 4: are discriminatory are illegal, but it doesn't explicitly literally say
Speaker 4: that people who are injured by that can bring a lawsuit. Now,
Speaker 4: since the time of the enactment of this statute, especially
Speaker 4: since it was beefed up. The statute was actually significantly
Speaker 4: beaced up by Congress in reaction to a Supreme Court
Speaker 4: decision in nineteen eighty two, this statue has been used
Speaker 4: for private claims. I don't know it's hundreds of times,
Speaker 4: which have been adjudicated by courts, including by the Supreme
Speaker 4: Court as recently as earlier this year, the Allen b.
Speaker 4: Milligan decision. So it has been used many, many, many,
Speaker 4: many times. But according to the Eighth Circuit majority, the
Speaker 4: Supreme Court has never literally said that there's a private
Speaker 4: right of action. They've just assumed it. And in that
Speaker 4: Allen case, Justice Thomas in his descent also raised this
Speaker 4: as a question about whether or not there really is
Speaker 4: a private right of action. So I think he in
Speaker 4: that case in some earlier cases, may have planted the
Speaker 4: seeds of doubt. But as I say, until now, I
Speaker 4: think there have been hundreds of cases in the district
Speaker 4: courts and the courts of appeals which have assumed that
Speaker 4: there's a private right of action, and even at least
Speaker 4: a number of cases, and it's probably, I'm not sure
Speaker 4: if it's single digits or double digits of cases in
Speaker 4: the Supreme Court which have assumed a private right of action.
Speaker 4: And this is the first case that has literally said, no,
Speaker 4: we don't think it's there. And the fact that there
Speaker 4: have been these many, many, many cases assuming that it's there,
Speaker 4: we don't care about those because nobody ever literally worked
Speaker 4: it through and held that there's a private right of action.
Speaker 2: And Justice Gorsich has also referred to whether private plaintiffs
Speaker 2: could sue under section two as quote an open question.
Speaker 2: Wendy Wiser of the Brendan Center for Justice has called
Speaker 2: these comments by the two justices bats signals that they're
Speaker 2: open to considering novel theories to undermine voting rights. And
Speaker 2: maybe the lower court judge, a Trump appointee, who came
Speaker 2: up with this, got the signal. Now, are these judges
Speaker 2: claiming that they're following precedent because this wasn't specifically addressed,
Speaker 2: even though you know there's case after case after case
Speaker 2: after case where private groups sue.
Speaker 4: Right, I think I would rephrase that to say they
Speaker 4: claim that they're following the text of the statute, the
Speaker 4: text of the statute and nothing more, and that they're
Speaker 4: not bound by any inconsistent precedent because there's no precedent
Speaker 4: that literally says the statute does create a private right
Speaker 4: of action. So I think that's how they would put it.
Speaker 4: This is consistent with kind of the dominant approach to
Speaker 4: statue interpretation in the current Supreme Court in federal courts,
Speaker 4: which is what's called textualism. We're just going to read
Speaker 4: the statute and see what's there and they don't see
Speaker 4: this literal language there as opposed to seeing that the
Speaker 4: structure of the statute. It's the purpose of the statue
Speaker 4: was designed to enable people to protect their voiding rights.
Speaker 4: Their view, there is not a specific little bit of
Speaker 4: text that says it.
Speaker 2: It seems like a very very narrow argument that ignores
Speaker 2: everything going around.
Speaker 4: Yeah, it's a very technical or argument, but it is
Speaker 4: an argument that I'd say resonates with some of the
Speaker 4: arguments that have that have really persuaded the Streme Court
Speaker 4: in other areas not voting rights. This idea of the
Speaker 4: private right of actions that I mean this has come
Speaker 4: up in other settings where Congress passes a law that
Speaker 4: prohibits certain activity or provides for certain benefits, but doesn't
Speaker 4: literally give people the right to sue if those are denied.
Speaker 4: Maybe theerception is that the Attorney general will sue or
Speaker 4: that rel agency will sue. And for a long time,
Speaker 4: the Supreme Court was willing to imply private rights of
Speaker 4: actions as necessary to vindicate the rights provide the benefits
Speaker 4: that Congress authorized. In more recent years, the Supreme Court
Speaker 4: has cut back on that and has been less inclined
Speaker 4: to find a private right of action in a statute
Speaker 4: that doesn't literally say that.
Speaker 2: Now, if this decision is affirmed, it would leave it
Speaker 2: to the Justice Department or state agees to bring these cases.
Speaker 2: And in Republican states, it doesn't seem likely that an
Speaker 2: age would bring an action to enforce the Voting Rights Act.
Speaker 2: So does the Justice Department have enough people and resources
Speaker 2: to bring these kinds of actions?
Speaker 4: Right? I mean, it's not clear that the Just Department
Speaker 4: would have enough staff to bring it. And then there
Speaker 4: might be justice departments that are not interested, that their
Speaker 4: philosophy is not inclined to bring these cases. I can
Speaker 4: imagine that happening too. So, yeah, this is a real
Speaker 4: This is a real body blow to any effectiveness of
Speaker 4: the Voting Rights Act. If people can't sue if they
Speaker 4: believe that there's a violation, the opportunities to enforce these
Speaker 4: rights will be drastically diminished.
Speaker 1: What's the next step for the plaintiffs here?
Speaker 4: It's certainly likely that the plaintiffs in this case will
Speaker 4: ask for what's called an on bank, which is to
Speaker 4: say this was a panel of the Eighth Circuit. You know,
Speaker 4: the course of appeals generally have a dozen or fifteen
Speaker 4: or more judges, but they sit in groups of three,
Speaker 4: and so this was a group of three judges from
Speaker 4: the Eighth Circuit to split two to one on this.
Speaker 4: This is a kind of issue that certainly is likely
Speaker 4: or certainly is a great candidate to go to an
Speaker 4: on bank decision where the entire Eight Circuit sits and decides.
Speaker 4: This is a certainly sort of issue that go to
Speaker 4: the Supreme Court ultimately, but I think before it even
Speaker 4: gets to the Supreme Court, there's a good chance that
Speaker 4: it'll be subject to an on bank reviewed by the
Speaker 4: entire Rate Circuit.
Speaker 2: And the Eighth Circuit is a very conservative circuit, with
Speaker 2: sixteen of its seventeen judges being Republican appointees. Thanks so much,
Speaker 2: rich That's Professor Richard Rafault of Columbia Law School coming
Speaker 2: up next. Federal public defenders are combining their forces to
Speaker 2: make arguments at the Supreme Court. I'm Juan Grass when
Speaker 2: you're listening to Bloomberg, mis Radler.
Speaker 3: Mister Chief Justice, and may please the Court. The nine
Speaker 3: to twenty two g offense is what triggers Acus penalties.
Speaker 3: The government therefore agrees that courts must apply Acus criteria
Speaker 3: in effect at the time of the nine to twenty
Speaker 3: two g offense not the prior conviction.
Speaker 2: Assistant Federal public defender Andrew Adler made his third trip
Speaker 2: to the U. S. Supreme Court lectern on Monday to
Speaker 2: argue that his client, Eugene Jackson, should not be subject
Speaker 2: to a fifteen year mandatory minimum because of his previous
Speaker 2: state cocaine related conviction. Adler is just one of the
Speaker 2: federal public defenders who have argued more than once before
Speaker 2: the justices. That's because with the Supreme Court hearing fewer
Speaker 2: and fewer cases each term, the criminal defense attorneys, like
Speaker 2: most first time Supreme Court advocates, face a lot of
Speaker 2: pressure from elite law firms to turn over their cases
Speaker 2: to advocates who are more experienced before the court. Joining
Speaker 2: me is Bloomberg Law Supreme Court reporter Kimberly Strawbridge Robinson,
Speaker 2: who's written about this. Tell us about the pressure that
Speaker 2: federal public defenders and other first time advocates have to
Speaker 2: turn their Supreme Court cases over to experienced advocates.
Speaker 5: Well, it's not a very good kept secret that whenever
Speaker 5: a case is granted by the Justices, the advocate, if
Speaker 5: they're not a sume Court veteran will face intense pressure.
Speaker 5: You know, they'll get calls, emails from large law firms
Speaker 5: from gootis veterans offering to take their case for free
Speaker 5: to help them out. But the help often means to
Speaker 5: argue the case. And so it's one way that you know,
Speaker 5: as the justices are granting and fewer cases, it's one
Speaker 5: way for advocates to you know, show their faces and
Speaker 5: for the justices frequently, and it's one that sometimes gets
Speaker 5: a lot of people to turn over their cases. But
Speaker 5: the federal defenders have tried to keep their cases when
Speaker 5: it makes sense within the offices themselves.
Speaker 1: There's even been criticism from some justices.
Speaker 2: You wrote about Justice Sonya Sotomayor in twenty fourteen said
Speaker 2: it was malpractice for any lawyer who thinks, this is
Speaker 2: my one shot before the Supreme Court and I have
Speaker 2: to take it. Have other justices commented as well.
Speaker 5: Yes, there was similar criticism from Justice Kagan around the
Speaker 5: same time, where she talked about, you know, the one
Speaker 5: group consistently who is getting or advocacy in front of
Speaker 5: the justices were criminal defendants, and that of course includes
Speaker 5: federal public defenders. She talked about the same thing that
Speaker 5: people wanting to have their one shot in front of
Speaker 5: the Supreme Court. And we've seen a lot of first
Speaker 5: time advocates, a lot of advocates of these criminal cases
Speaker 5: who do not do, you know, the best job for
Speaker 5: their clients. But that's not always the case. And again,
Speaker 5: you know, that's something that the federal defenders are trying
Speaker 5: to make sure it doesn't happen in their cases.
Speaker 2: And the Supreme Court bar is an elite group? Is
Speaker 2: it an elitist group too?
Speaker 5: Well, that's what you know, one of the federal defenders
Speaker 5: told me, is that there is a bit of elitism
Speaker 5: that goes on this idea that you know, only people
Speaker 5: can do this. I mean, you know, these federal defenders,
Speaker 5: they are appellate specialists, they are criminal specialists. They argue
Speaker 5: in from a lot of the other courts of appeals,
Speaker 5: so it's not as if they don't have experience. But
Speaker 5: one thing that they do often have is a real
Speaker 5: clear understanding of the criminal law and the way that
Speaker 5: happens practically. And we actually saw that in action when
Speaker 5: a federal defender took the lectern this week and argued
Speaker 5: a case he was able to give the justice. This
Speaker 5: is really a practical on the ground look about you
Speaker 5: know what it is that criminal defense attorneys advise their
Speaker 5: clients of and what sort of those interactions look like
Speaker 5: something that you know, a Supreme Court veteran, for all
Speaker 5: the wonderful things they can do, probably couldn't do.
Speaker 1: That was that Andrew Adler.
Speaker 5: That was yes. And this was actually his third time
Speaker 5: at the Supreme Court lecturn. So he's one of a
Speaker 5: few federal defenders that have gone to the Supreme Court
Speaker 5: and argued more than one.
Speaker 2: Yeah, and a few people mentioned that right off the
Speaker 2: bat he presented this hypothetical to the justices that really
Speaker 2: grab them.
Speaker 5: It did, and so you know, it was in his
Speaker 5: opening two minutes the Supreme Court. It doesn't sound like
Speaker 5: a long time, but the Supreme Court has said they're
Speaker 5: going to give advocates an uninterrupted two minutes, and it's
Speaker 5: kind of when the advocates can make their best arguments
Speaker 5: without getting interrupted. And in that two minutes he mentioned
Speaker 5: the specific hypothetical, and it came up again and again
Speaker 5: and again from the justices. They asked the other attorney
Speaker 5: about it. So he was really making good use of
Speaker 5: that first two minutes of uninterrupted time and you know, ultimately,
Speaker 5: I think it'll probably will be the way that the
Speaker 5: case goes and could end up in the opinions.
Speaker 1: And we will talk about that in a moment.
Speaker 2: So, Kimberly, do you think that there's an advantage? There
Speaker 2: are some advocates that have been up there so many times.
Speaker 2: The justices know them and perhaps know them even because
Speaker 2: you know, they attend functions with them and things like that.
Speaker 1: I mean, do you think that's an advantage when.
Speaker 2: The Supreme Court knows who you are, like for example,
Speaker 2: former solicitor generals.
Speaker 5: You know, it can be. I think one of the
Speaker 5: things that people tell me it's the biggest advantage of
Speaker 5: you know, those repeat players at the Supreme Court is
Speaker 5: that they know what the justices are looking for. They
Speaker 5: know that you know, when a justice gives you a hypothetical,
Speaker 5: you don't fight the hypothetical. You answer their question no
Speaker 5: matter how ridiculous it is, no matter how much it
Speaker 5: hurst your argument, and you just sort of do the
Speaker 5: best you can. And so it's sort of like having
Speaker 5: a home field advantage. There's the way that one advocate
Speaker 5: put it to me is that you you just know
Speaker 5: what to expect from them and know what's going to
Speaker 5: be the most helpful to them.
Speaker 2: Tell us about the Defender Supreme Court Resource and Assistance Panel.
Speaker 1: What is it doing.
Speaker 5: So this is probably the the worst acronym name is
Speaker 5: called d scrap, But d scrap is really just a
Speaker 5: group of federal defenders that do have some high court experience.
Speaker 2: You know.
Speaker 5: It started out very informally, but after some of the
Speaker 5: criticism that we talked about, you know, from the justices,
Speaker 5: federal defenders from around the couindes sort of said, Okay,
Speaker 5: we need to do something about this. We need to
Speaker 5: make sure that we aren't you know, these people who
Speaker 5: the justices that are talking about giving poor advocacy, and so,
Speaker 5: you know, what they do is, to varying degrees, they
Speaker 5: will reach out to the person whose case got granted.
Speaker 5: They will help with strategizing a bit, they'll help with
Speaker 5: brief writing, they'll do moot courts and just sort of
Speaker 5: give advice to help them alleviate that home field advantage
Speaker 5: and let them know what it is that the justices expect.
Speaker 5: And so it's it's sort of like a homegrown support group.
Speaker 5: But if Andrew Adler's argument is any indication, it seems
Speaker 5: to be doing a really good job.
Speaker 2: You point out something which I hadn't thought about that
Speaker 2: it seems often like a David and Goliath situation because
Speaker 2: the federal public defenders are almost always facing attorneys from
Speaker 2: the Solicitor General's Office who get a lot of chances
Speaker 2: to argue they do.
Speaker 5: I mean, you know these are people. You know, there
Speaker 5: are maybe three or four people who currently argue at
Speaker 5: the Court who have argued more than one hundred cases,
Speaker 5: all of them spent time in the Solicitor General's office,
Speaker 5: because that's the place you go if you want to
Speaker 5: get a lot of experience with Supreme Court advocacy. You know,
Speaker 5: they can argue to three four cases in a term
Speaker 5: each individual attorney in that office, whereas you know, some
Speaker 5: advocates who are we consider veterans can go years without
Speaker 5: having a case before the Supreme Court. So it really
Speaker 5: is a lot like David Goliath in that sense.
Speaker 2: I know there are a lot of Supreme Court clinics
Speaker 2: at law schools around the country. Do any other clinics
Speaker 2: offer the same kind of help to federal public defenders?
Speaker 5: They do? And actually, you know Dscrap hooks up with
Speaker 5: a lot of these clinics, so you know, the case
Speaker 5: that we've been talking about, they hooked up with the
Speaker 5: Supreme Court Clinic out in Stanford, a lot of law
Speaker 5: firms to will office support. Sidley Austin, who actually argued
Speaker 5: the companion case to this case that we're talking about, often,
Speaker 5: you know, is involved with the scrap and federal defenders,
Speaker 5: so they get a lot of support from the outside
Speaker 5: as well. And you know, I think it's it's really
Speaker 5: about finding people who are willing to help you out,
Speaker 5: but not mean help, means take the argument away. So
Speaker 5: there is that outside help too.
Speaker 2: Yeah, I'm going to say the d scrap is for
Speaker 2: scrappy defense lawyers.
Speaker 1: That's what it stands for.
Speaker 2: Let's talk about the case that Andrew Adler argued in.
Speaker 2: And you know, the cases involving the Arm Career Criminal
Speaker 2: Act always seem to be so technical that I often.
Speaker 1: Ignore them, but they're important. Tell us about this one.
Speaker 1: What the issue was?
Speaker 5: Sure, So the Arm Career Criminal Act, you know, has
Speaker 5: some really stiff senses for people who illegally possess a gun.
Speaker 5: So I think Sellen or somebody who is convicted of major,
Speaker 5: you know, drug crimes, and that's actually what's at issue here.
Speaker 5: Is that you know, if you are convicted of three quote,
Speaker 5: serious drug crimes and then you're convicted of illegally possessing
Speaker 5: a firearm under AKA, there's a fifteen year mandatory minimum,
Speaker 5: which is I mean, that's a lot. And so the
Speaker 5: question here is how do we decide who's eligible for
Speaker 5: that fifteen year minimum. And it's really a question a
Speaker 5: temporal question, you know, is the relevant time period that
Speaker 5: we're trying to see if these crimes are serious? Is
Speaker 5: it when those crimes were committed or is it now
Speaker 5: today as we're deciding your firearms case. So it is
Speaker 5: really a technical question, but at a very high level
Speaker 5: of generality that's that is too.
Speaker 2: And so the Justice has had basically three choices.
Speaker 5: They did, and you know, just to make it even
Speaker 5: more convoluted, all three of these choices are being employed
Speaker 5: to some extent in the lower Federal Pellet Court. So
Speaker 5: that's probably one of the major reasons that the court
Speaker 5: took this case was just to provide some clarity. But
Speaker 5: the different times it can either be, you know, do
Speaker 5: we look to see if this crime was serious when
Speaker 5: the drug crime occurred, or do we look to see
Speaker 5: if the crime is serious when the firearms conviction occurred,
Speaker 5: or do we look to see if the drug crime
Speaker 5: was serious at the time of the sentence thing? And
Speaker 5: as I said, all of those rules are sort of
Speaker 5: being employed, you know, throughout the country, and so the
Speaker 5: Supreme Court is going to have to pick one, and
Speaker 5: it really seems like they're not going to side with
Speaker 5: the government who was arguing for you know, the most
Speaker 5: backward facing that is looking at whether or not this
Speaker 5: was serious when the person committed the drug crime.
Speaker 2: And so it seems like they're not going to go
Speaker 2: for the most serious or the least, They're going to
Speaker 2: go in the middle.
Speaker 1: Is that the point that Adler was arguing.
Speaker 5: That was so you know, him and another attorney were
Speaker 5: sort of arguing on the same side, but for different standards.
Speaker 5: It looks like that's it is going to win. But
Speaker 5: which standard they choose, you know, it's probably going to
Speaker 5: be something that Justice has sort out in conference. One
Speaker 5: thing I thought was really interesting about the argument that
Speaker 5: Justice course has pointed out is that none of those
Speaker 5: rules are necessarily better for criminal defendants, because you know,
Speaker 5: the laws can change either favorably to defendants or they
Speaker 5: could change unfavorably to them. So you know, it's not
Speaker 5: as if one rule is better for criminal defendants as
Speaker 5: a whole, and as just as Cource has put it,
Speaker 5: you just kind of have to take the bidder with
Speaker 5: the suite.
Speaker 2: Is there a reason why the Arm Career Criminal Act
Speaker 2: comes up?
Speaker 1: There are so many issues about it.
Speaker 5: Yeah, the on Career Criminal Act, I mean every term
Speaker 5: we have, you know, several cases about it. The Supreme Court,
Speaker 5: you know, several years ago. Eventually it just kind of
Speaker 5: threw up its hand and said, look, this is so vague.
Speaker 5: We don't know what it means. It's just it's it's
Speaker 5: unconstitutional to a major part of the Act. You know,
Speaker 5: it's a really serious act. And you and I are
Speaker 5: talking right now about a case for their mandatory minimum
Speaker 5: of fifteen years. That's a lot of time and so
Speaker 5: got a lot of skin in the game to you know,
Speaker 5: bring these cases up to the Supreme Court. But you know,
Speaker 5: another thing that's changing is really the way that we
Speaker 5: view drug crimes and the you know, changes to federal
Speaker 5: and state drug laws are changing pretty rapidly. The Congress
Speaker 5: a couple of years past the bipartisan First Step Act,
Speaker 5: which changed a lot of the you know, these drunk crimes,
Speaker 5: and so a lot of that is tied into the
Speaker 5: Arm Career Criminal Act, which is about firearms but sort
Speaker 5: of touches on every bit of criminal law, particularly drug crimes.
Speaker 5: So I think that's why it's coming up, and I
Speaker 5: don't expect it to end anytime soon.
Speaker 2: Do you think that the you know, the Supreme Court's
Speaker 2: recent expansion of the Second Amendment has an effect on
Speaker 2: this or not at this point.
Speaker 5: Well, you know, that's sort of in the background of
Speaker 5: this case is the Arm Career Criminal Act really does
Speaker 5: deal a lot with individuals who can't possess the firearm
Speaker 5: because they're a felon, and the Supreme Court the case
Speaker 5: that they just heard Rahimi really sort of brought up
Speaker 5: a lot of these issues that the justices are having.
Speaker 5: Is is that, you know, the idea of incapacitating or
Speaker 5: taking away guns from these people is that they're dangerous.
Speaker 5: But if your fellow is for something like you know,
Speaker 5: wire fraud, or your felony is something that's not violent,
Speaker 5: is it really constitutional to take their guns away? You know,
Speaker 5: that's their Second Amendment right, And so you know, this
Speaker 5: is very much in the background of these cases. But
Speaker 5: it wasn't mentioned at all during arguments.
Speaker 2: Kimberly, I really enjoyed your story about the federal public
Speaker 2: defenders because we rarely hear about them and they don't
Speaker 2: get enough credit. Thanks so much. That's Bloomberg Law Supreme
Speaker 2: Court Reporter Kimberly Strawbridge Robinson and that's it for this
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