WEBVTT - Court Avoids Major Ruling on Partisan Gerrymandering

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. The Supreme Court

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<v Speaker 1>issued two rulings on partisan jerrymandering today without resolving the

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<v Speaker 1>key issue in the cases whether a voting district can

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<v Speaker 1>be so partisan it violates the Constitution. Joining us a

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<v Speaker 1>Supreme Court reporter Greg's store, Greg tell us about the

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<v Speaker 1>partisan jerrymandering decisions, Hi, June. Yeah, two decisions, one in

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<v Speaker 1>the case from Wisconsin, one in the case from Maryland.

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<v Speaker 1>And as you said, the court punted on the biggest issue,

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<v Speaker 1>which is, can you ever challenge a district or or

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<v Speaker 1>a map as being so partisan and violates the Constitution?

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<v Speaker 1>Both cases were resolved on a procedural ground. Uh. The

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<v Speaker 1>Wisconsin one did it in a in a what could

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<v Speaker 1>be a significant way where they cast real doubt on

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<v Speaker 1>the ability of opponents of a jerrymander to challenge an

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<v Speaker 1>entire statewide map. They said, in this case, where you

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<v Speaker 1>only have plaintiffs from voters from certain from particular districts.

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<v Speaker 1>They don't have enough of it an interest in challenging

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<v Speaker 1>this whole map, at least under the legal theory they're using.

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<v Speaker 1>They don't have enough of an interest to try to

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<v Speaker 1>knock out the entire map. So where does this leave

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<v Speaker 1>the jerrymandering question? Well, that's a that's a great question,

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<v Speaker 1>that's a six or four question. UM. The Court does

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<v Speaker 1>have another case that it could act on the next

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<v Speaker 1>few days from North Carolina. It's probably the strongest challenge

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<v Speaker 1>to a jerrymander. This involves congressional districts that were designed

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<v Speaker 1>by Republicans. They do have a voter in every district

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<v Speaker 1>in that case. UH. They also have the Democratic Party

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<v Speaker 1>challenging in that case. It's possible. I don't know if

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<v Speaker 1>it's it's likely, but it's certainly possible. The Court could say, Okay,

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<v Speaker 1>we'll resolve all these big issues next term, UH, and

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<v Speaker 1>agree to take up that case in the next few days. Greg,

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<v Speaker 1>is it unwieldy to challenge a state map district by

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<v Speaker 1>district and show partisanship. It is unwieldy, and it also,

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<v Speaker 1>UH would seem to knock out kind of the theory

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<v Speaker 1>of why a map should be struck down. So in

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<v Speaker 1>the Wisconsin case, the basic argument was that these districts

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<v Speaker 1>were drawn in a way so that Republicans were highly

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<v Speaker 1>highly likely to maintain control of the state Assembly, even

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<v Speaker 1>if Democrats won a majority of the votes across the state,

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<v Speaker 1>and the fact that happened one year. If you're having

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<v Speaker 1>to challenge districts on a district by district basis, where

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<v Speaker 1>it's a voter saying, UM, my vote isn'tcounting for as

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<v Speaker 1>much as it should uh because of the way they

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<v Speaker 1>drew my particular district, it's a little harder to see

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<v Speaker 1>how a court would be able to step back and say,

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<v Speaker 1>I want to throw out We're gonna throw out the

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<v Speaker 1>entire map because it is too tilted towards one party

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<v Speaker 1>or another. Did Justice Elena Kagan's concurring opinion sound a

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<v Speaker 1>little like a dissent. I don't know if I would

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<v Speaker 1>say a descent, but it's certainly very important. What what

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<v Speaker 1>Justice Kagan said was, UM, I agree with the majority

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<v Speaker 1>that the plaintiffs here don't have standing to pursue a

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<v Speaker 1>particular type of claim, which is that their votes were

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<v Speaker 1>deluded so that they didn't mean as much, but there's

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<v Speaker 1>a whole different theory called under the First Amendment and

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<v Speaker 1>the right end of the First Amendment, the freedom of

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<v Speaker 1>association under the First Amendment. And she said that whole

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<v Speaker 1>theory is not really the focus of the Wisconsin case.

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<v Speaker 1>And in my view, she says, uh, and she had

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<v Speaker 1>the votes of four justices. Um uh, there's no reason

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<v Speaker 1>why a case like that couldn't go forward. So there's

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<v Speaker 1>at least an opening there. But the Court as a

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<v Speaker 1>whole said, we're not getting to that issue that Justice

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<v Speaker 1>Kagan was just talking about. So you talked about how

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<v Speaker 1>this is a narrower look, and this isn't the first

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<v Speaker 1>time this term that we've seen the justices side swept

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<v Speaker 1>side step. What was see by many is the major

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<v Speaker 1>issue in the case. Is this a pattern we might

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<v Speaker 1>see in some of the cases that are coming up. Yeah,

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<v Speaker 1>that's a good question, June Uh. You're you're no doubt

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<v Speaker 1>thinking about the Masterpiece Cake Shop case, where the Court

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<v Speaker 1>didn't decide this big issue of whether there's business has

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<v Speaker 1>a free speech or religious right to refuse to to

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<v Speaker 1>serve people for a same sex wedding. The court resolve

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<v Speaker 1>that case of narrow narrow grams too. UM. With the

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<v Speaker 1>cases going forward, things like the the Internet, whether the

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<v Speaker 1>Internet sales tax and whether Internet retailers can be required

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<v Speaker 1>to collect tax, the Trump travel ban, the issue of

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<v Speaker 1>mandatory union fees for public sector workers, it's a little

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<v Speaker 1>harder to see. I'm not going to say impossible, but

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<v Speaker 1>it's hard to see how those cases are amenable to

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<v Speaker 1>some sort of compromised ruling UH that that sidesteps the

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<v Speaker 1>big issues. It seems like from where I said that,

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<v Speaker 1>with those big cases, the court is going to have

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<v Speaker 1>to confront the core issues. We shall see, Greg, there

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<v Speaker 1>was another case today that was decided which didn't get

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<v Speaker 1>much play at all. So tell us about that. Oh

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<v Speaker 1>I had, I had three cases that were decided, see

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<v Speaker 1>that the third one didn't get into I'm going to

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<v Speaker 1>guess you're talking about Mr Lowesman, who is in a

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<v Speaker 1>man who has some issues with his local government and

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<v Speaker 1>Riviera Beach UH, Florida. He was arrested while while making

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<v Speaker 1>some remarks at a city council meeting and he um

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<v Speaker 1>UH sued for retaliatory UH First Amendment retaliation for retaliatory

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<v Speaker 1>arrest UM, and the court essentially revived his claim. It

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<v Speaker 1>didn't say for sure he's entitled to a new He

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<v Speaker 1>lost a trial, and it didn't say for sure that

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<v Speaker 1>he's entitled to a new trial. But uh, it did

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<v Speaker 1>suggest that he may have a claim for retaliation under

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<v Speaker 1>the first Amendment and the third decision that ire. But

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<v Speaker 1>there were two more, and I'm going to confess June

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<v Speaker 1>I have not gotten to those yet. Uh, well, we're

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<v Speaker 1>waiting for the big you know, this one, the jerrymandering

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<v Speaker 1>was one of the ones that we were waiting for.

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<v Speaker 1>So now we have how many sessions left to hear?

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<v Speaker 1>How many people probably have three or four sittings left.

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<v Speaker 1>We have fourteen more opinions. We've we've mentioned internet sales taxes,

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<v Speaker 1>travel band union fees. Uh, there's a cell phone privacy

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<v Speaker 1>case that is very important. Uh. There's a case that's

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<v Speaker 1>really important to American Express and involves there's called their

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<v Speaker 1>anti steering policy where they require they forbid merchants from

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<v Speaker 1>uh steering customers to cards that that charge lower fees. Uh.

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<v Speaker 1>That that's an anti trust case. The court could revive

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<v Speaker 1>a government claim against American Express. That's very important. And

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<v Speaker 1>then of course, after the court issues its last opinions

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<v Speaker 1>were all holder breath that we see whether or not

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<v Speaker 1>any justice as he or she's going to retire. Oh,

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<v Speaker 1>that would be Justice Kennedy we're thinking about. Thanks so much, Greg,

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<v Speaker 1>And that's Bloomberg, new Supreme Court reporter Greg's store. Let's

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<v Speaker 1>turn now to a new appointment by President Trump. Speaking

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<v Speaker 1>with Bloomberg earlier this year, OMB Director and Acting CFPB

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<v Speaker 1>chief McK mulveney explained his concerns about the structure of

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<v Speaker 1>the agency that was created under the Dodd Frank Act.

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<v Speaker 1>The structure is completely u It's irrational. I have way

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<v Speaker 1>too much authority as an individual. So who does President

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<v Speaker 1>Trump want to give that authority to run one of

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<v Speaker 1>the most politically divisive agencies in Washington? Kathy Crowninger. If

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<v Speaker 1>you don't recognize her name, you're not alone joining me

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<v Speaker 1>as Christopher Peterson, a professor at the University of Utah

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<v Speaker 1>Law School. Christopher, A lot of people were googling that

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<v Speaker 1>name when it was announced. Tell us about her, Well,

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<v Speaker 1>I had the googler too. Um, it's a new name

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<v Speaker 1>to me as well. Um. She she is currently a

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<v Speaker 1>lieutenant So to speak to Mick mulvaney, the Director of

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<v Speaker 1>Office and Management and Budget who is also simultaneously serving

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<v Speaker 1>as the director of the the fpb UM. She's got

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<v Speaker 1>a background um in in various federal regulatory agencies, but

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<v Speaker 1>she doesn't have any experience in consumer protection or banking.

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<v Speaker 1>She worked as a clerk in the UH in the

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<v Speaker 1>Senate Um, worked at the Partner Transportation for a little while,

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<v Speaker 1>but really doesn't have a track record to evaluate on

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<v Speaker 1>the consumer protection issues that the Consumer Bureau was focused on.

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<v Speaker 1>So progressive groups and consumer advocacy groups are calling this

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<v Speaker 1>a political stunt and a way to ensure that Mulvaney

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<v Speaker 1>stays in the job longer. How do you evaluate this, Well,

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<v Speaker 1>it's hard not to think that that's what's happening here,

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<v Speaker 1>given all of the concern that conservatives expressed over the

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<v Speaker 1>years about how much power this director has. To turn

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<v Speaker 1>it over to somebody that has never worked in a

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<v Speaker 1>bank or a credit union and has no experience whatsoever

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<v Speaker 1>that's discernible in doing any of the kinds of federal

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<v Speaker 1>regulatory work that this agency does, it seems like a

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<v Speaker 1>pretty big surprise. So I think that the I think

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<v Speaker 1>that the likely outcome is that this is going to

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<v Speaker 1>delay consideration of a of a permanent director and is

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<v Speaker 1>probably going to keep Director Mulvaney in control of the agency.

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<v Speaker 1>So from what you just said, do you think that

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<v Speaker 1>she will not be confirmed? Well, I think it's tough

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<v Speaker 1>to say. I can imagine that some Democrats will be

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<v Speaker 1>tempted to call the President's bluff and confirm her in

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<v Speaker 1>order to try and get something done. But I don't

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<v Speaker 1>know that I have a crystal ball on that. I

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<v Speaker 1>do think that it's a very controversial nomination. UH. And

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<v Speaker 1>what it does, at least immediately in the short term,

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<v Speaker 1>is it allows uh mc mulvaney to continue to operate

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<v Speaker 1>as the acting head of the agency under the Federal

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<v Speaker 1>Vacancies Reform Act. So that statute of the statute Congress

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<v Speaker 1>past that try that allows UM the President to have

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<v Speaker 1>temporary heads of agencies while UM for two ten days

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<v Speaker 1>after a vacancy it opens up or during a period

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<v Speaker 1>of time in which uh a nominee is pending before

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<v Speaker 1>the Senate. And so in a fact, Mulvaney's term was

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<v Speaker 1>coming up at the end of during this week, and

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<v Speaker 1>this allows him to continue to be in charge until

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<v Speaker 1>the Senate acts. Just about thirty seconds, Christopher, do we

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<v Speaker 1>are we ever going to get someone that that consumer

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<v Speaker 1>advocates wanting this job as long as President Trump is

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<v Speaker 1>in office, and he opposes it just about twenty seconds. Sorry, sure,

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<v Speaker 1>no problem. Well, I think it's I think it's something

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<v Speaker 1>that the public deserves. You know, the Trump administration has

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<v Speaker 1>had seven months to find someone to run this important

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<v Speaker 1>watchdog agency, and it's remarkable that somehow they still have

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<v Speaker 1>managed to pick a nominee with no discernible experience in

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<v Speaker 1>consumer protection or banking. All right, thanks so much, I

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<v Speaker 1>appreciate it. That's Christopher Peterson, a professor at the University

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<v Speaker 1>of Utah Law School. Thanks for listening to the Bloomberg

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<v Speaker 1>Law Podcast. You can subscribe and listen to the show

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<v Speaker 1>on Apple Podcasts, SoundCloud, and on Bloomberg dot com slide podcast.

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<v Speaker 1>I'm June Brosso. This is Bloomberg. H m hm