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

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Speaker 1: Will the FTC try to stop the largest packaged food

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Speaker 1: deal in years? Mars, known for its candy like m

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Speaker 1: and Ms, Milky Ways, Skittles, Twigs and on and on,

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Speaker 1: wants to buy cheese at maker Kelenova for nearly thirty

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Speaker 1: six billion dollars. But will FTC chair Lena Kahn's views

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Speaker 1: about a chocolate oligopoly lead to a challenge to the deal?

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Speaker 1: Joining me is Bloomberg Anti trust reporter Leon Nylan Leah

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Speaker 1: tell us how Lena Kahan had a problem with the

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Speaker 1: chocolate oligopoly about a decade.

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Speaker 2: Ago before she became FTC chair and con worked for

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Speaker 2: an advocacy group that focuses on anti chask to open markets,

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Speaker 2: and she did a lot of research and writing sort

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Speaker 2: of about consolidation within various industries and one of those

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Speaker 2: a scud So. About ten years ago she wrote a

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Speaker 2: story about how there had been a significant con coolidation

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Speaker 2: within the candy industry, particularly chocolate candies, and how today

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Speaker 2: there are only about three major chocolate companies That's Nestleie

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Speaker 2: Mars and her Shee's. You know you have a couple

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Speaker 2: other ones like Baro Rocho, which is an Italian company,

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Speaker 2: but those are the big free So even though when

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Speaker 2: you go to the bircery store you see like what

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Speaker 2: looks like, you know, dozens of different brands, really most

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Speaker 2: of those are owned by one of these free companies.

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Speaker 2: And so she was lamenting a little bit. How when

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Speaker 2: there is this kind of confolidation, there ends up being

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Speaker 2: a little bit less innovation in market.

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Speaker 1: See, now I would wish there was less innovation in

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Speaker 1: candy so that I would not be so tempted. I

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Speaker 1: never noticed that there was a lack of diversity in candy.

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Speaker 1: So tell us about this proposed or possible Mars deal.

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Speaker 2: Yeah, so Mars, which is primarily a candy company, is

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Speaker 2: looking at buying Kelenova. Keelenova is a company that was

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Speaker 2: spun out of Keellog to Kellogg, the cereal company decided

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Speaker 2: to split up its business in between Kellogg the traditional

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Speaker 2: cereal and like everything else it did, And so Keelenova

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Speaker 2: is sort of the everything else. So it has pop tarts,

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Speaker 2: it has cheese, it it has nutri grain bars, it

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Speaker 2: has all of these other sort of like snack food

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Speaker 2: and frozen items in packaged food, and so Mars would

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Speaker 2: like to buy it because, as I said, primarily it

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Speaker 2: is a candy company, but it would like to sort

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Speaker 2: of get a little bit more into snack food. So

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Speaker 2: they are looking at doing a thirty six billion dollars

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Speaker 2: deal and it's really going to put Mars into one

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Speaker 2: of the top packaged food companies in the world. So

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Speaker 2: right now the top ones are Unilever, PepsiCo, and Nestlie

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Speaker 2: and this would make Mars the number four, right behind

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Speaker 2: those three. So the FTC is going to take a

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Speaker 2: look at the dial because there's a lot of interest

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Speaker 2: in food right now, particularly with all the inflation that's

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Speaker 2: been going on. There's been some suggestions that the reason

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Speaker 2: that food prices haven't come down as much is because

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Speaker 2: there is so much consolidation in the industry that a

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Speaker 2: lot of the food companies can sort of keep their

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Speaker 2: prices high in a way that they would otherwise not

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Speaker 2: be able to if there was more competition.

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Speaker 1: They do compete in snack bars. Is the analysis going

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Speaker 1: to depend on how they compete in snack bars or

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Speaker 1: is it going to focus on their becoming then the

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Speaker 1: fourth largest packaged food dealer. I mean, it really doesn't

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Speaker 1: seem like there's a lot of overlap in what Mars

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Speaker 1: and Kelenova do.

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Speaker 2: Yeah, the biggest overlap is that you said in snack bars.

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Speaker 2: So one of them owns Utri Grain and the other

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Speaker 2: owns Matro's Bakery, And if you ever had those items,

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Speaker 2: they're very similarly. You know, they have the fruit in

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Speaker 2: the middle and then there's the grains on the outside.

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Speaker 2: One of them also owns Hind Bars, you know, all

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Speaker 2: those like nut and chocolate ones, and the other owns

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Speaker 2: are expires, which they often have like fruit and that's

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Speaker 2: mixed together into sort of a bar. But these are

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Speaker 2: all sort of like the slightly healthier nack and or

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Speaker 2: the real replacement type things that you might you know,

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Speaker 2: grab when you're hungry. And so the FTC is definitely

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Speaker 2: going to take a look at that. And you know,

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Speaker 2: the traditional way that this would be resolved is that

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Speaker 2: they would try and sell off one of these brands.

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Speaker 2: They would keep one and they could sell off the other.

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Speaker 2: This FTC has been a lot more reluctant to accept

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Speaker 2: that kind of a deal. I mean, I am here

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Speaker 2: in Portland because of the Kroger Albertson steal and that's

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Speaker 2: exactly where they're challenging at Kroger and Auversons are saying,

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Speaker 2: you know, we'll sell us some supermarkets, everything will be fine,

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Speaker 2: and the FTC is like, eh, we're not really sure.

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Speaker 2: So that may be a little bit harder in this case.

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Speaker 1: How long does the FTC have before they have to

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Speaker 1: make a decision in the Mars case.

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Speaker 2: Yeah, so Mars and Kelenova just announced the steal a

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Speaker 2: couple of weeks ago. They will file their initial paperwork

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Speaker 2: pretty soon, and then the FEC will have thirty days

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Speaker 2: to decide if it wants to do an in depth

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Speaker 2: review that we call a second request. A lot of

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Speaker 2: those people I spoke to said they believe that FPC

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Speaker 2: is definitely going to do a second request here. Once

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Speaker 2: it goes into the second request phase, that can take

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Speaker 2: several months or maybe even up to a year for

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Speaker 2: them to sort of make a decision about what they're

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Speaker 2: going to do with the deal.

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Speaker 1: So, speaking of Kroger Albertson's, I understand that the surgeon

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Speaker 1: grocery prices played a big part in the opening statements

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Speaker 1: at the trial.

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Speaker 2: Yeah, you know, this is a merger between what the

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Speaker 2: US calls the two largest traditional grocery stores, Kroger and Robertsons,

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Speaker 2: and you know there's sort of one stop shop places

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Speaker 2: where you go and you can get sort of all

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Speaker 2: of the food you might need for a week. And

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Speaker 2: they have alleged that both Kroger and Robertsons spend a

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Speaker 2: lot of time thinking about how the other one prices,

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Speaker 2: particularly on what they consider it to be consumer stables,

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Speaker 2: which are things like milk, eggs, bananas, things along those

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Speaker 2: lines that Americans purchased a lot, probably even weakly. So

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Speaker 2: we have heard a lot about egg pricing in particular.

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Speaker 2: You know, there's been a lot of up and down

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Speaker 2: in egg pricing since the pandemic, in part because there's

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Speaker 2: been a couple like bird flu outbreaks here in the US.

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Speaker 2: But there has been some testimony that Albertson's and Kroger

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Speaker 2: look to each other very significantly on how to price

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Speaker 2: their eggs. They do weekly reports on what the other

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Speaker 2: one is charging in the market, and they oftentimes, yeah,

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Speaker 2: like adjust their pricing based on what either you know,

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Speaker 2: Kroger or Albertson's just charging. The companies have argued that

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Speaker 2: they don't compete with each other as much as the

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Speaker 2: FTC claims that really their biggest competitors Walmart. Walmart obviously

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Speaker 2: is one of the biggest food sellers in the United States.

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Speaker 2: But you know, we've seen at this point dozens of

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Speaker 2: documents in which Kroger and Albertsons refer to each other

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Speaker 2: as either their primary competitor or their biggest competitor. And

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Speaker 2: while they do look at Walmart for some pricing, it's

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Speaker 2: pretty clear that they are very, very focused on the

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Speaker 2: other traditional supermarkets.

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Speaker 1: There was testimony at the trial about the company that

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Speaker 1: would buy almost six hundred of the divested stores from

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Speaker 1: Kroger and Albertson's CNS Grocery Wholesale.

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Speaker 2: So in order to get the deal through, the companies

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Speaker 2: knew that they competed directly in a lot of areas,

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Speaker 2: and so they offered to sell five hundred and seventy

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Speaker 2: nine stores to a company called CNS Grocery Coolesalers. So

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Speaker 2: CNS is primarily a grocery holesaler. That means that they

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Speaker 2: fiber products from the consumer packaged goods or from the farmers.

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Speaker 2: They keep them in the warehouse, and then when the

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Speaker 2: supermarket needs to stocket shelves, it orders from them and

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Speaker 2: they send a truck to the serper market with all

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Speaker 2: of the goods. So a lot of the bigger supermarkets

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Speaker 2: like Kroger and Overritson sort of do this warehousing and

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Speaker 2: distribution themselves, with smaller grocery chains to use wholesalers like CNS. So,

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Speaker 2: as I said, CNS is primarily a wholesaler. It does

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Speaker 2: operate twenty three grocery stores in upstate New York and Wisconsin,

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Speaker 2: so buying five hundred and seventy nine stores would be

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Speaker 2: like quite a significant change for this company, and they

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Speaker 2: argue that they are really excited about this possibility, that

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Speaker 2: they would really like to sort of diversify their company

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Speaker 2: beyond just being a whole baler, and that it sort

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Speaker 2: of makes sense for them, since they are so involved

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Speaker 2: in groceries, to pick up grocery retailing. But the FEC

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Speaker 2: argues that this is putting a lot of the risk

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Speaker 2: onto consumers because if this divestiture package were to fail

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Speaker 2: all of a sudden, there's not going to be as

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Speaker 2: much grocery competition and a lot of places around the country,

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Speaker 2: consumers would only have the option of the combined Kroger

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Speaker 2: and Operts them.

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Speaker 1: And CNS doesn't have a great record of keeping supermarkets

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Speaker 1: that they buy.

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Speaker 2: Yes, so historically, as I mentioned, CNS has played a

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Speaker 2: little bit in the retail business. But what they would

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Speaker 2: do is they would buy a couple grocery stores, primarily

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Speaker 2: from other companies that were already their customers, and then

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Speaker 2: they would keep them for a while and then sort

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Speaker 2: of sell them off or sell them back to somebody else.

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Speaker 2: So there was a period in time in the early

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Speaker 2: mid two thousands when they had a couple hundred stores,

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Speaker 2: but by twenty twelve they had completely exited the retail

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Speaker 2: grocery industry. So for a long time they operated no

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Speaker 2: grocery stores whatsoever. In about twenty twenty one, they sort

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Speaker 2: of decided to get back into the retail business, and

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Speaker 2: that's when they started acquiring a couple more stores, And

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Speaker 2: as I said, they now operate just twenty three of

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Speaker 2: them only in these two places in the country. Even

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Speaker 2: though they are a big distributor, they also don't have

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Speaker 2: any even of their distribution business in some areas of

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Speaker 2: the country where they would be buying stores, So they

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Speaker 2: don't do a lot of work right now in southern California,

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Speaker 2: where they would be buying something like ninety something stores,

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Speaker 2: and they don't do any real business in Colorado right now,

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Speaker 2: where again they would be buying ninety something stores and

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Speaker 2: taking over sort of the Safe Way brand in Colorado only.

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Speaker 1: And this hearing is just to allow a judge to

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Speaker 1: decide whether or not to issue a preliminary injunction against

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Speaker 1: the deal.

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Speaker 2: Yeah, so technically this is a preliminary injunction hearing. The

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Speaker 2: judge is going to decide whether it's to block the

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Speaker 2: deal from going through while the FTC move forward with

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Speaker 2: a proceeding in it's in house court. The companies have

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Speaker 2: already said that if the judge blocks the deal here,

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Speaker 2: they're probably going to abandon because the deal has already

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Speaker 2: now been pending for two years and they can't really

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Speaker 2: keep waiting given all of the financing and things that

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Speaker 2: are up in the air with this merger. So if

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Speaker 2: she ends up ruling against them, they'll abandon the deal

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Speaker 2: and sort of move forward with a new strategy.

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Speaker 1: Do you know what other kinds of witnesses are going

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Speaker 1: to testify?

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Speaker 2: Yeah, we are almost done with the FTC's case, So

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Speaker 2: we've heard from a lot of Koger and Albertson's sort

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Speaker 2: of mid level managers in the various regions. We've heard

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Speaker 2: actually a lot from various union officials because one of

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Speaker 2: the interesting things about this case is the FTC has

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Speaker 2: argued that it would produce competition for unionized labor because

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Speaker 2: both Kroger and Albertsons have arge unionized work courses all

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Speaker 2: of the people who work in the stores, and they

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Speaker 2: argue that eliminating the competition between Kroger and Albertson's would

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Speaker 2: lead to lower wages for their workers. The SEC is

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Speaker 2: expected to finish up probably tomorrow morning, and then we're

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Speaker 2: going to hear from the Kroger CEO and the Robertson CEO,

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Speaker 2: who are going to talk a lot about, you know,

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Speaker 2: why they want to steal some forward.

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Speaker 1: It's very interesting because you have two of the issues

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Speaker 1: in the presidential campaign, inflation and union jobs.

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Speaker 2: The Harris campaign has already said that they oppose this merger,

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Speaker 2: So we will see what happens.

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Speaker 1: Thanks so much, Leah. That's Bloomberg Ante Trust reporter Leah Nylen.

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Speaker 1: Coming up next on the Bloomberg Launch Show. Texas is

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Speaker 1: making a long shot bid to become a business law

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Speaker 1: center with a little help from Elon Musk i'm June Grosso.

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Speaker 1: When you're listening to Bloomberg, there's no doubt that in

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Speaker 1: the tiny state of Delaware is the world's per i'm

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Speaker 1: ain in business court. The Delaware Court of Chancery, Delaware

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Speaker 1: is the legal address for nearly three hundred thousand businesses

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Speaker 1: like GM, Walmart and Goldman Sachs, and in a two

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Speaker 1: century old commercial court, sits one chancellor, six vice chancellors,

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Speaker 1: and three magistrates, considered the best judges in the business

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Speaker 1: of judging business cases. Now into this picture comes an

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Speaker 1: unlikely challenge from Texas. It's launching its own version of

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Speaker 1: a business court without a designated courthouse or even designated courtrooms.

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Speaker 1: Joining me is Bloomberg Texas legal reporter Madelin Meckelberg, who's

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Speaker 1: investigated Texas's bid to become a business court hub. Madelin

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Speaker 1: start by telling us about the Delaware Chancery Court.

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Speaker 3: I think there is no question that the Chancery court

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Speaker 3: is the pre eminent business court. And although it's the

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Speaker 3: state and a small state court, it has global implications

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Speaker 3: because so many businesses are incorporated in Delaware and have

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Speaker 3: it set up so that litigation like shareholder actions go

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Speaker 3: through the Chancery Court. There are decades and decades of

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Speaker 3: precedent out of that court on really crucial business law cases,

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Speaker 3: and those decisions, given the stature of this court, those

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Speaker 3: decisions have impact felt across the whole country. I was

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Speaker 3: speaking to a law professor at the University of Texas

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Speaker 3: for this story, and he told me, is you're taking

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Speaker 3: corporate law classes anywhere in the country. You're learning about

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Speaker 3: Delaware law, whether you plan to practice in that court

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Speaker 3: or not, because of the significance of the decisions that

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Speaker 3: are coming out of the Chancery Court there, and.

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Speaker 1: Also the court's ten officials. You know, the judges are

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Speaker 1: experts in business law.

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Speaker 3: That's exactly right. The idea is that these are people

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Speaker 3: who come from really high profile corporate litigation practices already,

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Speaker 3: they have a ton of experience and knowledge in this space,

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Speaker 3: and they're appointed to serve twelve year terms in the court,

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Speaker 3: and so they're really steeped in current issues of the day,

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Speaker 3: and they have a reputation of being some of the

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Speaker 3: top legal minds in the country.

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Speaker 1: Now, Texas has made a concerted effort to attract businesses.

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Speaker 1: Abbot is promoting the Texas miracle. What is that.

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Speaker 2: That's a great question.

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Speaker 3: Definitely, Texas has been working for a long time now

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Speaker 3: to cementous reputation as a really business friendly state. I

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Speaker 3: think the number changes, but there's something like fifty fortune

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Speaker 3: five hundred companies that are headquartered here. But what Texas

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Speaker 3: and Governor Abbott is talking about there is this idea

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Speaker 3: that businesses can come to Texas and experience lower taxes,

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Speaker 3: they can experience a really robust workforce. There's tons of

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Speaker 3: physical space. Texas is a gin normalis state. So if

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Speaker 3: you're looking for somewhere to set up a business, set

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Speaker 3: up an operation, chances are we've got the land for

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Speaker 3: you here. I think we're also have a reputation of

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Speaker 3: having business friendly lawmakers who really are attuned to the

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Speaker 3: issues of businesses and have shown a willingness to listen

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Speaker 3: to what they're looking for when it comes to crafting

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Speaker 3: regulations for the state. And so Abbott has been looking

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Speaker 3: for ways to kind of expand on this reputation, add

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Speaker 3: more to the arsenal things that Texas uses when it's

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Speaker 3: trying to recruit companies to come to the states. And

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Speaker 3: that's why we're chatting today. The latest development in that

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Speaker 3: effort is the establishment of dedicated business courts here in Texas.

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Speaker 1: Are they trying to become the next Delaware? Are they

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Speaker 1: trying to directly compete with Delaware?

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Speaker 3: So not necessarily, Texas is not the first state to

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Speaker 3: attempt to create business courts. There's maybe twenty two other

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Speaker 3: states that have some former fashion of specialty courts, and

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Speaker 3: so on paper, the reason to pursue these courts is

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Speaker 3: to set orate business cases from the regular docket, because

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Speaker 3: right now a really complicated contract dispute or shareholder lawsuit

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Speaker 3: is going to be decided alongside personal injury cases and

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Speaker 3: family law disputes in state courts across Texas. And so

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Speaker 3: what they're trying to do here is to create a

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Speaker 3: similar system to Delaware, where you have specialty judges who

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Speaker 3: have experience in business and corporate litigation who can help

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Speaker 3: speed resolution of some of these cases that can tend

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Speaker 3: to get stuck in the dockets. But I think, for

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Speaker 3: reasons I'm sure we're going to talk about more, I

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Speaker 3: think Texas's reputation just as a business friendly state, some

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Speaker 3: of our more famous business residents here, it kind of

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Speaker 3: gives Texas a bigger opportunity to go against Delaware, and

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Speaker 3: so whether they're trying to or not, the way that

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Speaker 3: the situation is playing out right now is that everyone's

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Speaker 3: looking at Texas as maybe not a direct challenger to Delaware,

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Speaker 3: but certainly an alternative to Delaware that could eventually kind

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Speaker 3: of develop a similar reputation as a place to bring

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Speaker 3: these kinds of.

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Speaker 1: I think you are referencing perhaps Elon Musk, who I'm

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Speaker 1: sure feels he's had a terrible time in the Delaware

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Speaker 1: Chancery court and has been promoting Texas.

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Speaker 3: That's exactly right. Elon Musk decided to shift the incorporation

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Speaker 3: of Tesla and SpaceX to Texas. I think the final

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Speaker 3: straw for him was when a judge in Delaware's Chancery

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Speaker 3: court struck down his massive, massive fifty six billion dollar

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Speaker 3: pay package that was approved by Tesla shareholders, and he said, guys,

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Speaker 3: I'm going to Texas. He has a long history here

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Speaker 3: of having his physical headquarters and office spaces here, but

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Speaker 3: by moving the legal home of these companies here, he's

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Speaker 3: kind of ensuring that these future spats involving shareholders and

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Speaker 3: specifics of the business are going to be resolved in

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Speaker 3: courts in Texas. Now, he hasn't said that he was

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Speaker 3: coming here to specifically experience the business courts that we're

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Speaker 3: setting up, but it's just the timing of it. He

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Speaker 3: announced the decisions a few months ago, and Texas business

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Speaker 3: courts just started operating this past weekend. So whether he

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Speaker 3: wants to or not, I think he's going to be

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Speaker 3: one of the early and most high profile cases that

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Speaker 3: those courts see.

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Speaker 1: So Chevron moved from California after one hundred and forty

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Speaker 1: five years, you know, it was having problems with California's

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Speaker 1: environmental policies and regulations. Are a lot of the corporations

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Speaker 1: moving there trying to escape from states that are not

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Speaker 1: as business friendly and going to Texas, which seems to

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Speaker 1: have open arms out for business.

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Speaker 3: I think that's certainly a factor for a lot of

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Speaker 3: businesses that decide to come here. It's hard to imagine

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Speaker 3: that being the only factor that they would make that

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Speaker 3: decision based on, but certainly I think that's part of

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Speaker 3: the idea of this Texas miracle, and part of the

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Speaker 3: arsenal tools that Abbott uses to recruit businesses is this

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Speaker 3: idea that yes, we are business friendly, we have business

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Speaker 3: friendly judges here, and we have regulations that are friendly

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Speaker 3: to business. Kind of all of the above, and I

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Speaker 3: think that we're going to see a similar dynamic play

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Speaker 3: out with these business courts where the judges in Texas

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Speaker 3: are appointed by Abbot. I think a lot of people assume,

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Speaker 3: probably correctly, that the judges share his similar ideology when

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Speaker 3: it comes to business and when it comes to applying

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Speaker 3: law in a maybe more conservative fashion. And so I

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Speaker 3: think these courts will be an extension of what we've

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Speaker 3: seen when it comes to presenting Texas as an alternative

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Speaker 3: to some of these areas like California that are known

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Speaker 3: for their more liberal policies.

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Speaker 1: Let's say Governor Abbot said the judges have a litany

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Speaker 1: of experience in streamlining resolutions of business disputes. Do they?

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Speaker 1: I mean, it doesn't seem like you can really compare

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Speaker 1: the judges in Texas to the judges in Delaware.

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Speaker 3: Definitely not. I mean Delaware's judges. This court has decades

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Speaker 3: and decades of precedent. They serve for twelve year terms.

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Speaker 3: This Business Court is, as we're speaking today, about two

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Speaker 3: to three days old. So I think it really remains

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Speaker 3: to be seen how they're going to handle these cases.

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Speaker 3: Judges yappoints were required to have ten years of experience

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Speaker 3: in either complex corporate litigation or as a judge in Texas,

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Speaker 3: So they definitely do have experience in this space, but

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Speaker 3: none of them, as far as I'm aware, have experience

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Speaker 3: as a judge in this kind of setting of handling

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Speaker 3: these specific disputes in a business court setting. So I

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Speaker 3: think it's going to be one of the things people

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Speaker 3: are watching for is how quickly they can take a

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Speaker 3: case from filing to resolution.

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Speaker 1: And also Texas courts in a lot of instances are

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Speaker 1: going to have to follow Delaware law because that's the

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Speaker 1: only law on some of these issues.

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Speaker 3: That's right. I mean, these are state courts, and so

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Speaker 3: they're going to be referring to Texas corporate law in

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Speaker 3: a lot of fashions. And so we do have precedent

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Speaker 3: in terms of how corporate law has been applied in

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Speaker 3: cases in the past, just in a re Daduller's state

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Speaker 3: court room. But a lot of those applications we've seen

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Speaker 3: previously are based on Delaware case law. That's kind of

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Speaker 3: what I was saying earlier, this idea that the power

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Speaker 3: of Delaware chancery court is these huge decisions that have

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Speaker 3: significance that are being applied in other cases, and I

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Speaker 3: don't think that's an exception here. I think what's different

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Speaker 3: is perhaps how these judges might apply or interpret those

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Speaker 3: statutes when it comes to specific cases. I think that's

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Speaker 3: another thing that remains to be seen, is how far

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Speaker 3: they'll be willing to deviate from what's kind of standard

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Speaker 3: and expected in this space.

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Speaker 1: Madlin, As you pointed out in your story, the terms

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Speaker 1: are only for two years the judges terms, so that

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Speaker 1: means that they may be leaving in the middle of

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Speaker 1: a case. I mean, we all know how long legal

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Speaker 1: cases take, yes.

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Speaker 3: And basically all the lawyers I spoke to for this

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Speaker 3: story said that would be amazing to have a case

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Speaker 3: that wraps up in two years or less. But I

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Speaker 3: think that's another thing that is Again, a lot of

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Speaker 3: the conversation right now is a wait and see. It's

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Speaker 3: hard to really understand how these courts are going to

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Speaker 3: work until we see them start taking cases and start

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Speaker 3: getting to that period where there might be turnover. Because

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Speaker 3: the way that they've been set up under state law

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Speaker 3: is that the judges can be reappointed to terms following this,

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Speaker 3: so it's possible that the judges we have now their

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Speaker 3: two years are up, how it renews them asks them

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Speaker 3: to come back for two more years. But we just

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Speaker 3: really don't know how it's going to work at best point,

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Speaker 3: if that's something that's going to be understood to come

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Speaker 3: for these judges or what. But as it stands right now,

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Speaker 3: two years is definitely a short term. I think I

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Speaker 3: mentioned Delaware judges serve for twelve years, and so that's

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Speaker 3: one of the big differences between our system here and

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Speaker 3: what they have in the Chancery Court.

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Speaker 1: So they've been planning for more than a year. Are

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Speaker 1: the courts located in one central building like in Delaware.

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Speaker 3: No, that's another thing. Texas is a huge state and

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Speaker 3: they're technically are I believe, eleven divisions that they hope

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Speaker 3: someday will exist for the business Court. But what they've

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Speaker 3: decided to do is start small. So they're opening five

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Speaker 3: divisions over the biggest cities in the state, and that's Austin, Dallas,

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Speaker 3: Fort Worth, Houston, and San Antonio. And that was one

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Speaker 3: of the things we've been watching as this September first

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Speaker 3: deadline for the courts to start operating has snuck up

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Speaker 3: is where are these courts going to be located, how

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Speaker 3: are they going to handle filings? Is it going to

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Speaker 3: be electronic? A lot of those questions were unanswered, and

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Speaker 3: even up until a few weeks before the courts were

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Speaker 3: supposed to open, we were told they were still looking

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Speaker 3: for leases for courtrooms within those different divisions, but they

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Speaker 3: decided to kind of abandon that effort for now to

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Speaker 3: find permanent physical space and judges will have offices within

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Speaker 3: their division, but when they need a courtroom, the plan

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Speaker 3: right now is to use available existing infrastructure from other

438
00:23:54,560 --> 00:23:55,320
Speaker 3: state courts.

439
00:23:55,600 --> 00:24:00,200
Speaker 1: What's the timeframe for determining whether or not this is

440
00:24:00,240 --> 00:24:03,080
Speaker 1: a success. I mean it feels like they're opening without

441
00:24:03,119 --> 00:24:04,800
Speaker 1: even having everything in place.

442
00:24:05,400 --> 00:24:07,439
Speaker 3: It's brand new. I think it's going to be a

443
00:24:07,440 --> 00:24:10,560
Speaker 3: few years before we really understand whether this was a

444
00:24:10,600 --> 00:24:14,560
Speaker 3: successful experiment. I think an early first test is going

445
00:24:14,600 --> 00:24:17,359
Speaker 3: to be, you know, can they take a case from

446
00:24:17,400 --> 00:24:20,000
Speaker 3: start to finish? I think that sounds like a really

447
00:24:20,040 --> 00:24:24,040
Speaker 3: low bar, but creating a completely new court system, almost

448
00:24:24,040 --> 00:24:27,680
Speaker 3: from scratch, is a huge undertaking. The court themselves kind

449
00:24:27,680 --> 00:24:30,480
Speaker 3: of told us that just because September first came on

450
00:24:30,520 --> 00:24:33,480
Speaker 3: the calendar doesn't mean no preparations are finished, there's still

451
00:24:33,520 --> 00:24:36,320
Speaker 3: a lot of work to do. They're still hiring staff,

452
00:24:36,600 --> 00:24:38,679
Speaker 3: so it's not like what we're seeing today is what

453
00:24:38,720 --> 00:24:40,640
Speaker 3: the courts are going to be looking like one year

454
00:24:40,640 --> 00:24:44,080
Speaker 3: from now. They're still building up their internal infrastructure.

455
00:24:44,359 --> 00:24:46,200
Speaker 2: So I think it's going to take at least two

456
00:24:46,280 --> 00:24:46,880
Speaker 2: years for.

457
00:24:46,880 --> 00:24:50,240
Speaker 3: A full judge's term to really understand kind of what

458
00:24:50,280 --> 00:24:53,240
Speaker 3: the potential is for these courts. And then I think

459
00:24:53,320 --> 00:24:56,920
Speaker 3: another big question is going to be whether Texas leaders

460
00:24:57,080 --> 00:25:00,000
Speaker 3: see this as a worthwhile investment to continue put in

461
00:25:00,200 --> 00:25:03,560
Speaker 3: money and resources towards growing these courts and supporting the

462
00:25:03,640 --> 00:25:04,840
Speaker 3: existing courts they have.

463
00:25:06,080 --> 00:25:11,240
Speaker 1: This is certainly an ambitious project that Texas is taking on,

464
00:25:11,640 --> 00:25:14,880
Speaker 1: and I know you'll keep following and let us know

465
00:25:14,960 --> 00:25:19,000
Speaker 1: how it's going. Thanks so much, Madeline. That's Madeline Meckelberg,

466
00:25:19,040 --> 00:25:22,840
Speaker 1: Bloomberg Texas Legal Reporter, coming up next on the Bloomberg

467
00:25:22,920 --> 00:25:26,000
Speaker 1: Launch Show. It was a busy summer for the Supreme

468
00:25:26,080 --> 00:25:29,560
Speaker 1: Court as the justices had to handle what could be

469
00:25:29,640 --> 00:25:34,400
Speaker 1: a record number of summer emergency applications. I'm Jim Grosso

470
00:25:34,560 --> 00:25:38,080
Speaker 1: and you're listening to Bloomberg. In just about a month,

471
00:25:38,160 --> 00:25:41,439
Speaker 1: the Supreme Court Justices will begin their new term on

472
00:25:41,520 --> 00:25:44,680
Speaker 1: the first Monday in October. They left the Supreme Court

473
00:25:44,720 --> 00:25:48,080
Speaker 1: for their summer vacation on July first, but the summer

474
00:25:48,080 --> 00:25:52,600
Speaker 1: has been relatively busy for them. They've decided eleven emergency

475
00:25:52,680 --> 00:25:56,480
Speaker 1: applications and they're on track to perhaps triple that before

476
00:25:56,520 --> 00:26:00,119
Speaker 1: the new term starts. Why all these summer emergencies the

477
00:26:00,160 --> 00:26:04,400
Speaker 1: applications here to explain is Bloomberg Law. Supreme Court reporter

478
00:26:04,640 --> 00:26:08,000
Speaker 1: Lydia Wheeler. We used to hear about the emergency docket,

479
00:26:08,040 --> 00:26:12,480
Speaker 1: the shadow docket in reference to death penalty cases. What

480
00:26:12,600 --> 00:26:14,639
Speaker 1: kinds of cases are we seeing now?

481
00:26:15,200 --> 00:26:18,600
Speaker 4: You're completely right. So the emergency docket, or what legal

482
00:26:18,600 --> 00:26:22,399
Speaker 4: scholars are calling the shadow docket, was once primarily used

483
00:26:22,440 --> 00:26:25,200
Speaker 4: for these last minute day requests and death penalty cases.

484
00:26:25,200 --> 00:26:28,040
Speaker 4: As you mentioned, you know, basically death row inmates were

485
00:26:28,080 --> 00:26:30,840
Speaker 4: coming to the court and saying, hey, stop my execution

486
00:26:31,000 --> 00:26:34,080
Speaker 4: while I fight for a new sentence in court. Now

487
00:26:34,200 --> 00:26:37,800
Speaker 4: the requests cover a much broader scope of issues I'm

488
00:26:37,840 --> 00:26:41,480
Speaker 4: talking about. Now we're seeing often hot button issues like abortion,

489
00:26:42,119 --> 00:26:45,240
Speaker 4: voting rights, even the power of federal regulators, you know,

490
00:26:45,359 --> 00:26:48,640
Speaker 4: issues that are really dividing the nation. Politically, those are

491
00:26:48,680 --> 00:26:51,960
Speaker 4: what's coming to the court on this emergency docket.

492
00:26:52,600 --> 00:26:57,080
Speaker 1: Explain how the shadow docket is different from the merits

493
00:26:57,119 --> 00:27:00,560
Speaker 1: docket in other words, you know, the truncated pers for

494
00:27:00,800 --> 00:27:02,119
Speaker 1: filing briefs, et cetera.

495
00:27:02,440 --> 00:27:05,440
Speaker 4: Right, So, the shadow docket is the name that legal

496
00:27:05,480 --> 00:27:09,240
Speaker 4: scholars use when referring to the emergency docket, and they

497
00:27:09,280 --> 00:27:13,160
Speaker 4: call it that because the court decides these requests through

498
00:27:13,240 --> 00:27:17,879
Speaker 4: a truncated process without full briefing or oral arguments. The

499
00:27:17,920 --> 00:27:22,359
Speaker 4: decisions are orders that are usually only a sentence long,

500
00:27:22,880 --> 00:27:25,480
Speaker 4: and we never know kind of when they're going to

501
00:27:25,520 --> 00:27:27,800
Speaker 4: come out. It's not like on a specific decision day.

502
00:27:28,040 --> 00:27:30,320
Speaker 4: So there's that right now. They're happening over the summer

503
00:27:30,320 --> 00:27:33,119
Speaker 4: when the court isn't even in its normal session, and

504
00:27:33,320 --> 00:27:37,959
Speaker 4: unless there's a notable concurrence or a dissent, there's usually

505
00:27:38,080 --> 00:27:41,840
Speaker 4: very little insight into the court's reasoning for why they're

506
00:27:41,880 --> 00:27:45,919
Speaker 4: either blocking something or letting something take effect. We don't

507
00:27:45,920 --> 00:27:48,760
Speaker 4: know what the vote count is. Usually you know which

508
00:27:48,960 --> 00:27:52,440
Speaker 4: justices decided, you know for which side, So there's very

509
00:27:52,480 --> 00:27:55,520
Speaker 4: little information, which is why you know, one legal scholar

510
00:27:55,600 --> 00:27:57,920
Speaker 4: kind of coins the name shadow docket and why that

511
00:27:58,040 --> 00:27:58,840
Speaker 4: term has kind of.

512
00:27:58,760 --> 00:28:01,199
Speaker 1: Taken off, So now tell us about some of the

513
00:28:01,280 --> 00:28:04,879
Speaker 1: decisions on the shadow doget that the Court has made

514
00:28:05,000 --> 00:28:05,680
Speaker 1: this summer.

515
00:28:06,119 --> 00:28:10,120
Speaker 4: Right, So, the Court recently rejected the Biden administration's requests

516
00:28:10,400 --> 00:28:15,120
Speaker 4: to reinstate the Education Department's new rules that protect transgender

517
00:28:15,200 --> 00:28:19,439
Speaker 4: students from discrimination in school nationwide. That was actually a

518
00:28:19,560 --> 00:28:24,359
Speaker 4: rare one where we saw a partial dissent from four justices. Actually,

519
00:28:24,400 --> 00:28:28,440
Speaker 4: Conservative Justice Neil Gorsitch joined the liberals, which is Justice

520
00:28:28,440 --> 00:28:31,880
Speaker 4: so to Mayor Justice Pagan and Justice Jackson in saying

521
00:28:31,920 --> 00:28:35,560
Speaker 4: that they would have let those rules take effects. Last week,

522
00:28:35,800 --> 00:28:39,960
Speaker 4: we also saw the justices allow Arizona to enforce part

523
00:28:40,040 --> 00:28:43,320
Speaker 4: of a state election law that will require voters to

524
00:28:43,400 --> 00:28:47,360
Speaker 4: show proof of citizenship to vote. And it's unclear if

525
00:28:47,440 --> 00:28:49,760
Speaker 4: that will again be blocked or if that will be

526
00:28:49,800 --> 00:28:54,360
Speaker 4: a requirement likely during the twenty twenty four presidential elections.

527
00:28:55,000 --> 00:28:59,560
Speaker 1: Lydia, we're watching to see whether the Court is going

528
00:28:59,600 --> 00:29:02,000
Speaker 1: town decision or when the Court is going to hand

529
00:29:02,040 --> 00:29:05,760
Speaker 1: down decisions in several different cases. Tell us the ones

530
00:29:05,800 --> 00:29:06,880
Speaker 1: that we're waiting for.

531
00:29:07,520 --> 00:29:10,959
Speaker 4: They still have more than a dozen applications still pending.

532
00:29:11,360 --> 00:29:13,400
Speaker 4: I think at this point we're up to fifteen or

533
00:29:13,440 --> 00:29:16,240
Speaker 4: sixteen now. You know, legal scholars told me they're really

534
00:29:16,280 --> 00:29:19,360
Speaker 4: on track to triple the number of cases that they

535
00:29:19,400 --> 00:29:22,520
Speaker 4: decide on the shadow dock at fifth summer. I'm personally

536
00:29:22,600 --> 00:29:25,120
Speaker 4: waiting for one right now that has to do with

537
00:29:25,240 --> 00:29:30,280
Speaker 4: family planning funding in Oklahoma. These are dollars that AHHS

538
00:29:30,320 --> 00:29:33,880
Speaker 4: stripped from the state of Oklahoma because the state wouldn't

539
00:29:33,880 --> 00:29:37,840
Speaker 4: agree to force its healthcare providers to offer abortion referrals.

540
00:29:38,040 --> 00:29:40,400
Speaker 4: They said that that is a violation of their new

541
00:29:40,440 --> 00:29:44,160
Speaker 4: abortion van well, a near total abortion ban that took

542
00:29:44,200 --> 00:29:47,840
Speaker 4: effect after the Supreme Court two terms ago in twenty

543
00:29:47,880 --> 00:29:52,160
Speaker 4: twenty two overturned the constitutional right to abortion and left

544
00:29:52,280 --> 00:29:55,360
Speaker 4: that up to the state beside. You know, Georgetown law

545
00:29:55,360 --> 00:29:59,160
Speaker 4: professor Steve Vladdock, he has been tracking these requests and

546
00:29:59,200 --> 00:30:01,520
Speaker 4: he actually shared his data with us. You know, he

547
00:30:01,640 --> 00:30:04,800
Speaker 4: said that the Court is on track to blow previous

548
00:30:04,800 --> 00:30:07,160
Speaker 4: summers out of the water when it comes to the

549
00:30:07,240 --> 00:30:10,480
Speaker 4: number of emergency actions that it's taking. You know, he

550
00:30:10,520 --> 00:30:13,600
Speaker 4: said that that even includes the first summer of the

551
00:30:13,600 --> 00:30:18,120
Speaker 4: COVID nineteen pandemic, when there were actual true emergencies that

552
00:30:18,200 --> 00:30:20,000
Speaker 4: the Court was being asked to act on.

553
00:30:20,720 --> 00:30:24,360
Speaker 1: You can understand why during COVID there was an optic

554
00:30:24,440 --> 00:30:29,440
Speaker 1: in these applications, but why so many more emergency applications

555
00:30:29,480 --> 00:30:30,160
Speaker 1: these days?

556
00:30:30,560 --> 00:30:33,560
Speaker 4: Right, So this is actually something that the justices themselves

557
00:30:33,680 --> 00:30:37,480
Speaker 4: have spoken to, and Justice Elena Kagan is really someone

558
00:30:37,520 --> 00:30:40,520
Speaker 4: who kind of gave us the first understanding of why

559
00:30:40,640 --> 00:30:44,040
Speaker 4: this is happening. You know, she said that, you know,

560
00:30:44,160 --> 00:30:47,640
Speaker 4: in granting a number of these emergency requests that were

561
00:30:47,640 --> 00:30:50,200
Speaker 4: brought to the Court during the Trump administration years ago,

562
00:30:50,480 --> 00:30:53,360
Speaker 4: she said that the Court really encouraged people to kind

563
00:30:53,400 --> 00:30:57,080
Speaker 4: of keep bringing these kinds of petitions for emergency relief.

564
00:30:57,400 --> 00:31:00,960
Speaker 4: And so the Court basically kind of sent the signal like, hey,

565
00:31:01,200 --> 00:31:04,600
Speaker 4: we're now open to these kind of requests. And now

566
00:31:04,680 --> 00:31:06,680
Speaker 4: what we're seeing is we're really seeing a lot of

567
00:31:06,720 --> 00:31:11,600
Speaker 4: these requests come from Republican led states and also industry

568
00:31:11,600 --> 00:31:16,080
Speaker 4: groups that are looking to block Biden administration policies. Now,

569
00:31:16,280 --> 00:31:19,600
Speaker 4: the concern here is that the Court, in acting so

570
00:31:19,680 --> 00:31:23,200
Speaker 4: many times on these requests, that they're changing kind of

571
00:31:23,240 --> 00:31:27,600
Speaker 4: what's considered a true emergency, and legal scholars that I

572
00:31:27,640 --> 00:31:31,440
Speaker 4: spoke to actually so that that further undermines the Court's credibility.

573
00:31:31,600 --> 00:31:33,880
Speaker 4: And you know, we know that the Court right now

574
00:31:33,920 --> 00:31:37,640
Speaker 4: has very low public approval ratings due to their ongoing

575
00:31:38,200 --> 00:31:43,440
Speaker 4: ethics issues and controversies, and also that of controversial decisions

576
00:31:43,720 --> 00:31:46,479
Speaker 4: that the Court keeps releasing that are really split along

577
00:31:46,600 --> 00:31:50,360
Speaker 4: ideological lines. You know, I'm thinking about last term the

578
00:31:50,440 --> 00:31:54,200
Speaker 4: Court's decision on presidential immunity and also their decision to

579
00:31:54,240 --> 00:31:57,160
Speaker 4: overturn the federal ban on bump stocks, which are those

580
00:31:57,200 --> 00:32:00,560
Speaker 4: devices that allow guns to fire like machine gun.

581
00:32:00,880 --> 00:32:03,520
Speaker 1: Are the justices complaining because they have to work during

582
00:32:03,560 --> 00:32:06,720
Speaker 1: the summer more now, or are they complaining for other reasons?

583
00:32:07,080 --> 00:32:09,360
Speaker 4: You know, they actually, oh, several of them have come

584
00:32:09,400 --> 00:32:11,920
Speaker 4: out in public appearances and like lavent it that like,

585
00:32:12,000 --> 00:32:15,200
Speaker 4: oh my gosh, this is way busier, you know. Justice

586
00:32:15,200 --> 00:32:18,160
Speaker 4: Soda Mayor recently said, like I'm tired. You know, We're

587
00:32:18,160 --> 00:32:20,959
Speaker 4: not used to working around the clock like this. And

588
00:32:21,120 --> 00:32:23,720
Speaker 4: the number of requests that they're getting is a lot,

589
00:32:24,040 --> 00:32:28,080
Speaker 4: you know. Justice Kavanaugh also said that it's challenging, you know,

590
00:32:28,160 --> 00:32:31,600
Speaker 4: because the number of emergency applications that they're getting takes

591
00:32:31,640 --> 00:32:34,960
Speaker 4: time away from the Court's merits docket. And now the

592
00:32:35,040 --> 00:32:37,960
Speaker 4: merits docket is actually what they refer to as the

593
00:32:38,080 --> 00:32:41,360
Speaker 4: normal process for the court, you know, hearing a case

594
00:32:41,400 --> 00:32:44,320
Speaker 4: and deciding it. That happens during the course of their

595
00:32:44,400 --> 00:32:48,240
Speaker 4: normal term, which begins the first Monday in October and

596
00:32:48,320 --> 00:32:51,120
Speaker 4: traditionally runs until the end of June. Now they can

597
00:32:51,240 --> 00:32:53,600
Speaker 4: go a little longer than that. We saw that unusually

598
00:32:53,680 --> 00:32:56,840
Speaker 4: happy this summer where they ran into the first.

599
00:32:56,600 --> 00:32:57,200
Speaker 2: Day of July.

600
00:32:57,480 --> 00:33:00,680
Speaker 4: But usually they like to wrap everything up Spanda June

601
00:33:00,680 --> 00:33:02,520
Speaker 4: and then they get a couple of months break with

602
00:33:02,560 --> 00:33:05,480
Speaker 4: the occasional emergency request. But now they're just it seems

603
00:33:05,520 --> 00:33:09,560
Speaker 4: like there's this flurry of activity, you know. Justice Clarence

604
00:33:09,640 --> 00:33:13,560
Speaker 4: Thomas also commented on this. He said that the emergency

605
00:33:13,600 --> 00:33:18,280
Speaker 4: process really short circuits the court's normal process for hearing disputes,

606
00:33:18,400 --> 00:33:21,240
Speaker 4: and he said that it's not a quote thorough way

607
00:33:21,360 --> 00:33:24,400
Speaker 4: of dealing with these issues. But Justice Kavanaugh and Justice

608
00:33:24,440 --> 00:33:27,320
Speaker 4: Thomas really didn't offer any sort of solution. At least,

609
00:33:27,400 --> 00:33:29,800
Speaker 4: nothing publicly was said about what the Court should be doing.

610
00:33:29,920 --> 00:33:32,720
Speaker 4: As I mentioned, you know, Justice Kagan was really the

611
00:33:32,720 --> 00:33:35,080
Speaker 4: only one who came kind of closest to that when

612
00:33:35,080 --> 00:33:37,920
Speaker 4: she said, you know, hey, this phenomenon is kind of

613
00:33:37,960 --> 00:33:41,640
Speaker 4: caused by us. We're granting these opinions and we're sending

614
00:33:41,720 --> 00:33:44,720
Speaker 4: the signal that we're open to this kind of decision

615
00:33:44,760 --> 00:33:47,400
Speaker 4: making and hey, send your stuff our way. So that

616
00:33:47,520 --> 00:33:49,680
Speaker 4: seems to signal to me that like, one way that

617
00:33:49,720 --> 00:33:52,200
Speaker 4: the Court could kind of avoid doing this, which we

618
00:33:52,280 --> 00:33:54,600
Speaker 4: saw them do in past terms, is to take cases

619
00:33:54,600 --> 00:33:57,760
Speaker 4: that come in on the emergency docket and move them

620
00:33:57,800 --> 00:34:00,440
Speaker 4: over to the merits docket. The Court definitely has the

621
00:34:00,480 --> 00:34:01,120
Speaker 4: power to do that.

622
00:34:01,440 --> 00:34:05,640
Speaker 1: Yes, Justice Kagan is definitely the most outspoken or it

623
00:34:05,720 --> 00:34:08,960
Speaker 1: reveals the most of the justices, it seems. And also

624
00:34:09,440 --> 00:34:12,239
Speaker 1: she talked about, and you know, the Supreme Court has

625
00:34:12,640 --> 00:34:15,920
Speaker 1: during oral arguments talked about how lower courts it's a

626
00:34:15,920 --> 00:34:18,960
Speaker 1: problem that they're issuing these nationwide injunctions, but no one

627
00:34:18,960 --> 00:34:22,680
Speaker 1: has done anything about this. So she said that they

628
00:34:22,719 --> 00:34:24,640
Speaker 1: have to intervene then, right.

629
00:34:24,560 --> 00:34:26,799
Speaker 4: That's so she said, sometimes like where we have to

630
00:34:26,840 --> 00:34:29,560
Speaker 4: step in because as you mentioned, right, lower courts are

631
00:34:29,960 --> 00:34:31,839
Speaker 4: you know, they'll get a dispute that comes to them.

632
00:34:31,920 --> 00:34:36,080
Speaker 4: Instead of just blocking some sort of policy that impacts

633
00:34:36,080 --> 00:34:39,320
Speaker 4: the party that's before them, these courts are taking it

634
00:34:39,400 --> 00:34:42,439
Speaker 4: upon themselves to block a policy for the entire nation,

635
00:34:42,719 --> 00:34:45,160
Speaker 4: to make it so that no one has to follow,

636
00:34:45,320 --> 00:34:46,960
Speaker 4: you know, the new policy or new rules that the

637
00:34:46,960 --> 00:34:50,040
Speaker 4: fide administration has put in place, or an administration has

638
00:34:50,040 --> 00:34:51,960
Speaker 4: put in place. You know, this is not just a

639
00:34:52,000 --> 00:34:54,759
Speaker 4: Republican tactic, I should say, you know that this has

640
00:34:54,800 --> 00:34:59,680
Speaker 4: also been something that democratic state attorneys general have also pursued,

641
00:34:59,800 --> 00:35:04,000
Speaker 4: you know, bringing these challenges against the administration and challenging

642
00:35:04,040 --> 00:35:07,480
Speaker 4: those So not necessarily just something that red states are doing,

643
00:35:07,480 --> 00:35:09,160
Speaker 4: but off the blue states have done in the past

644
00:35:09,200 --> 00:35:11,520
Speaker 4: as well. But yeah, she said that, you know, sometimes

645
00:35:11,560 --> 00:35:14,280
Speaker 4: we have to step in like there's no other choice.

646
00:35:14,640 --> 00:35:18,040
Speaker 1: Are they expecting or are legal scholars expecting to see

647
00:35:18,080 --> 00:35:21,120
Speaker 1: election cases on the shadow docket?

648
00:35:21,719 --> 00:35:24,600
Speaker 4: Yeah, that's definitely something that could come as we get

649
00:35:24,600 --> 00:35:27,560
Speaker 4: closer to the election, to see more of these disputes.

650
00:35:27,920 --> 00:35:30,800
Speaker 4: That's something we're expecting to see that I would expect

651
00:35:30,840 --> 00:35:33,440
Speaker 4: over the next several weeks maybe to see those coming

652
00:35:33,480 --> 00:35:35,759
Speaker 4: to the court and definitely, you know, as they start

653
00:35:35,760 --> 00:35:38,080
Speaker 4: at the beginning of their term, it's going to be

654
00:35:38,320 --> 00:35:41,000
Speaker 4: very busy, lots to watch out for. So yeah, I guess,

655
00:35:41,080 --> 00:35:43,279
Speaker 4: you know, stay tuned because there's definitely more to come

656
00:35:43,280 --> 00:35:45,680
Speaker 4: in the shadow docket. This isn't an area where they

657
00:35:45,680 --> 00:35:48,400
Speaker 4: are slowing, you know, the number of requests that are

658
00:35:48,440 --> 00:35:51,240
Speaker 4: coming to them. They seem to be popping into my inbox,

659
00:35:51,880 --> 00:35:54,279
Speaker 4: you know, from the Court's press office almost every day.

660
00:35:54,440 --> 00:35:55,760
Speaker 4: So a lot of activity.

661
00:35:55,960 --> 00:35:59,440
Speaker 1: And it was interesting. You talked to University of Virginia

662
00:35:59,520 --> 00:36:04,600
Speaker 1: law prefer Yes who said that increasingly state attorneys and

663
00:36:04,760 --> 00:36:09,960
Speaker 1: state solicitor generals are challenging federal laws in the courts.

664
00:36:10,560 --> 00:36:12,640
Speaker 4: They are, Yeah, this is in kind of a new tactic.

665
00:36:12,680 --> 00:36:15,560
Speaker 4: I talked with legal scholars who said that state attorneys

666
00:36:15,560 --> 00:36:18,920
Speaker 4: generals and solicitor generals those are the attorneys that represent

667
00:36:19,080 --> 00:36:21,400
Speaker 4: the states and their challenge before the Supreme Court. That

668
00:36:21,440 --> 00:36:25,080
Speaker 4: they are really kind of acting like normal litigans now

669
00:36:25,160 --> 00:36:27,640
Speaker 4: more so than ever, and that they're bringing these big

670
00:36:27,680 --> 00:36:31,280
Speaker 4: actions and challenging the administration. You know. And what's interesting

671
00:36:31,320 --> 00:36:33,520
Speaker 4: is I've done reporting in the past where you kind

672
00:36:33,520 --> 00:36:35,400
Speaker 4: of do a lot of venue shopping, a lot of

673
00:36:35,440 --> 00:36:39,719
Speaker 4: forum shopping, where they seek out particular parties they all

674
00:36:39,800 --> 00:36:43,319
Speaker 4: kind of ban together in multi state litigation sometimes and

675
00:36:43,360 --> 00:36:46,800
Speaker 4: they seek out their preferred court to file these challenges

676
00:36:46,840 --> 00:36:48,919
Speaker 4: and to try to get a judge that will most

677
00:36:49,000 --> 00:36:53,000
Speaker 4: likely rule in their favor. And sometimes there'll be different

678
00:36:53,000 --> 00:36:55,040
Speaker 4: groups of states. You know, a couple of states will

679
00:36:55,040 --> 00:36:57,719
Speaker 4: file in like Oklahoma, and a couple of states will

680
00:36:57,719 --> 00:37:01,000
Speaker 4: file somewhere else. So it's like multiple challenges. We often

681
00:37:01,120 --> 00:37:05,640
Speaker 4: see with these cases of national importance and challenges to

682
00:37:06,200 --> 00:37:09,640
Speaker 4: administration policies. You'll see a tactic is to kind of

683
00:37:09,840 --> 00:37:12,520
Speaker 4: the states try their hands in different courts and so

684
00:37:12,600 --> 00:37:17,400
Speaker 4: you'll get competing rulings, and that often will make an

685
00:37:17,440 --> 00:37:20,400
Speaker 4: issue more enticing for the Supreme Court. When lower courts

686
00:37:20,600 --> 00:37:23,200
Speaker 4: have ruled in different ways on the same issue, and

687
00:37:23,280 --> 00:37:26,680
Speaker 4: you have a split in the decision, meaning one court

688
00:37:26,719 --> 00:37:29,000
Speaker 4: rules one way and another court rules another way, it

689
00:37:29,040 --> 00:37:31,239
Speaker 4: almost forces the Supreme Court to kind of be the

690
00:37:31,360 --> 00:37:33,120
Speaker 4: decider and step in and settle it.

691
00:37:33,480 --> 00:37:37,160
Speaker 1: And that filing in two different jurisdictions and getting two

692
00:37:37,239 --> 00:37:41,880
Speaker 1: different results is what Republican ags did in attacking Joe

693
00:37:41,880 --> 00:37:45,960
Speaker 1: Biden's latest push to reduce student loan bills. And just

694
00:37:46,040 --> 00:37:49,920
Speaker 1: last week, the Supreme Court turned down the Biden administration's

695
00:37:49,960 --> 00:37:53,520
Speaker 1: request to lift a pause that one of the federal

696
00:37:53,520 --> 00:37:57,320
Speaker 1: appeals courts imposed on the program. So that's a perfect

697
00:37:57,360 --> 00:38:00,000
Speaker 1: example of what you were saying, Lydia, Thanks so much,

698
00:38:00,000 --> 00:38:03,920
Speaker 1: so much. That's Bloomberg law. Supreme court reporter Lydia Wheeler.

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00:38:04,120 --> 00:38:06,759
Speaker 1: And that's it for this edition of the Bloomberg Law Podcast.

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00:38:07,120 --> 00:38:09,480
Speaker 1: Remember you can always get the latest legal news by

701
00:38:09,520 --> 00:38:13,359
Speaker 1: subscribing and listening to the show on Apple Podcasts, Spotify,

702
00:38:13,640 --> 00:38:17,480
Speaker 1: and at Bloomberg dot com, slash podcast, slash Law. I'm

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00:38:17,560 --> 00:38:20,000
Speaker 1: June Grosso, and this is Bloomberg