Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. The Supreme Court
Speaker 1: issued two rulings on partisan jerrymandering today without resolving the
Speaker 1: key issue in the cases whether a voting district can
Speaker 1: be so partisan it violates the Constitution. Joining us a
Speaker 1: Supreme Court reporter Greg's store, Greg tell us about the
Speaker 1: partisan jerrymandering decisions, Hi, June. Yeah, two decisions, one in
Speaker 1: the case from Wisconsin, one in the case from Maryland.
Speaker 1: And as you said, the court punted on the biggest issue,
Speaker 1: which is, can you ever challenge a district or or
Speaker 1: a map as being so partisan and violates the Constitution?
Speaker 1: Both cases were resolved on a procedural ground. Uh. The
Speaker 1: Wisconsin one did it in a in a what could
Speaker 1: be a significant way where they cast real doubt on
Speaker 1: the ability of opponents of a jerrymander to challenge an
Speaker 1: entire statewide map. They said, in this case, where you
Speaker 1: only have plaintiffs from voters from certain from particular districts.
Speaker 1: They don't have enough of it an interest in challenging
Speaker 1: this whole map, at least under the legal theory they're using.
Speaker 1: They don't have enough of an interest to try to
Speaker 1: knock out the entire map. So where does this leave
Speaker 1: the jerrymandering question? Well, that's a that's a great question,
Speaker 1: that's a six or four question. UM. The Court does
Speaker 1: have another case that it could act on the next
Speaker 1: few days from North Carolina. It's probably the strongest challenge
Speaker 1: to a jerrymander. This involves congressional districts that were designed
Speaker 1: by Republicans. They do have a voter in every district
Speaker 1: in that case. UH. They also have the Democratic Party
Speaker 1: challenging in that case. It's possible. I don't know if
Speaker 1: it's it's likely, but it's certainly possible. The Court could say, Okay,
Speaker 1: we'll resolve all these big issues next term, UH, and
Speaker 1: agree to take up that case in the next few days. Greg,
Speaker 1: is it unwieldy to challenge a state map district by
Speaker 1: district and show partisanship. It is unwieldy, and it also,
Speaker 1: UH would seem to knock out kind of the theory
Speaker 1: of why a map should be struck down. So in
Speaker 1: the Wisconsin case, the basic argument was that these districts
Speaker 1: were drawn in a way so that Republicans were highly
Speaker 1: highly likely to maintain control of the state Assembly, even
Speaker 1: if Democrats won a majority of the votes across the state,
Speaker 1: and the fact that happened one year. If you're having
Speaker 1: to challenge districts on a district by district basis, where
Speaker 1: it's a voter saying, UM, my vote isn'tcounting for as
Speaker 1: much as it should uh because of the way they
Speaker 1: drew my particular district, it's a little harder to see
Speaker 1: how a court would be able to step back and say,
Speaker 1: I want to throw out We're gonna throw out the
Speaker 1: entire map because it is too tilted towards one party
Speaker 1: or another. Did Justice Elena Kagan's concurring opinion sound a
Speaker 1: little like a dissent. I don't know if I would
Speaker 1: say a descent, but it's certainly very important. What what
Speaker 1: Justice Kagan said was, UM, I agree with the majority
Speaker 1: that the plaintiffs here don't have standing to pursue a
Speaker 1: particular type of claim, which is that their votes were
Speaker 1: deluded so that they didn't mean as much, but there's
Speaker 1: a whole different theory called under the First Amendment and
Speaker 1: the right end of the First Amendment, the freedom of
Speaker 1: association under the First Amendment. And she said that whole
Speaker 1: theory is not really the focus of the Wisconsin case.
Speaker 1: And in my view, she says, uh, and she had
Speaker 1: the votes of four justices. Um uh, there's no reason
Speaker 1: why a case like that couldn't go forward. So there's
Speaker 1: at least an opening there. But the Court as a
Speaker 1: whole said, we're not getting to that issue that Justice
Speaker 1: Kagan was just talking about. So you talked about how
Speaker 1: this is a narrower look, and this isn't the first
Speaker 1: time this term that we've seen the justices side swept
Speaker 1: side step. What was see by many is the major
Speaker 1: issue in the case. Is this a pattern we might
Speaker 1: see in some of the cases that are coming up. Yeah,
Speaker 1: that's a good question, June Uh. You're you're no doubt
Speaker 1: thinking about the Masterpiece Cake Shop case, where the Court
Speaker 1: didn't decide this big issue of whether there's business has
Speaker 1: a free speech or religious right to refuse to to
Speaker 1: serve people for a same sex wedding. The court resolve
Speaker 1: that case of narrow narrow grams too. UM. With the
Speaker 1: cases going forward, things like the the Internet, whether the
Speaker 1: Internet sales tax and whether Internet retailers can be required
Speaker 1: to collect tax, the Trump travel ban, the issue of
Speaker 1: mandatory union fees for public sector workers, it's a little
Speaker 1: harder to see. I'm not going to say impossible, but
Speaker 1: it's hard to see how those cases are amenable to
Speaker 1: some sort of compromised ruling UH that that sidesteps the
Speaker 1: big issues. It seems like from where I said that,
Speaker 1: with those big cases, the court is going to have
Speaker 1: to confront the core issues. We shall see, Greg, there
Speaker 1: was another case today that was decided which didn't get
Speaker 1: much play at all. So tell us about that. Oh
Speaker 1: I had, I had three cases that were decided, see
Speaker 1: that the third one didn't get into I'm going to
Speaker 1: guess you're talking about Mr Lowesman, who is in a
Speaker 1: man who has some issues with his local government and
Speaker 1: Riviera Beach UH, Florida. He was arrested while while making
Speaker 1: some remarks at a city council meeting and he um
Speaker 1: UH sued for retaliatory UH First Amendment retaliation for retaliatory
Speaker 1: arrest UM, and the court essentially revived his claim. It
Speaker 1: didn't say for sure he's entitled to a new He
Speaker 1: lost a trial, and it didn't say for sure that
Speaker 1: he's entitled to a new trial. But uh, it did
Speaker 1: suggest that he may have a claim for retaliation under
Speaker 1: the first Amendment and the third decision that ire. But
Speaker 1: there were two more, and I'm going to confess June
Speaker 1: I have not gotten to those yet. Uh, well, we're
Speaker 1: waiting for the big you know, this one, the jerrymandering
Speaker 1: was one of the ones that we were waiting for.
Speaker 1: So now we have how many sessions left to hear?
Speaker 1: How many people probably have three or four sittings left.
Speaker 1: We have fourteen more opinions. We've we've mentioned internet sales taxes,
Speaker 1: travel band union fees. Uh, there's a cell phone privacy
Speaker 1: case that is very important. Uh. There's a case that's
Speaker 1: really important to American Express and involves there's called their
Speaker 1: anti steering policy where they require they forbid merchants from
Speaker 1: uh steering customers to cards that that charge lower fees. Uh.
Speaker 1: That that's an anti trust case. The court could revive
Speaker 1: a government claim against American Express. That's very important. And
Speaker 1: then of course, after the court issues its last opinions
Speaker 1: were all holder breath that we see whether or not
Speaker 1: any justice as he or she's going to retire. Oh,
Speaker 1: that would be Justice Kennedy we're thinking about. Thanks so much, Greg,
Speaker 1: And that's Bloomberg, new Supreme Court reporter Greg's store. Let's
Speaker 1: turn now to a new appointment by President Trump. Speaking
Speaker 1: with Bloomberg earlier this year, OMB Director and Acting CFPB
Speaker 1: chief McK mulveney explained his concerns about the structure of
Speaker 1: the agency that was created under the Dodd Frank Act.
Speaker 1: The structure is completely u It's irrational. I have way
Speaker 1: too much authority as an individual. So who does President
Speaker 1: Trump want to give that authority to run one of
Speaker 1: the most politically divisive agencies in Washington? Kathy Crowninger. If
Speaker 1: you don't recognize her name, you're not alone joining me
Speaker 1: as Christopher Peterson, a professor at the University of Utah
Speaker 1: Law School. Christopher, A lot of people were googling that
Speaker 1: name when it was announced. Tell us about her, Well,
Speaker 1: I had the googler too. Um, it's a new name
Speaker 1: to me as well. Um. She she is currently a
Speaker 1: lieutenant So to speak to Mick mulvaney, the Director of
Speaker 1: Office and Management and Budget who is also simultaneously serving
Speaker 1: as the director of the the fpb UM. She's got
Speaker 1: a background um in in various federal regulatory agencies, but
Speaker 1: she doesn't have any experience in consumer protection or banking.
Speaker 1: She worked as a clerk in the UH in the
Speaker 1: Senate Um, worked at the Partner Transportation for a little while,
Speaker 1: but really doesn't have a track record to evaluate on
Speaker 1: the consumer protection issues that the Consumer Bureau was focused on.
Speaker 1: So progressive groups and consumer advocacy groups are calling this
Speaker 1: a political stunt and a way to ensure that Mulvaney
Speaker 1: stays in the job longer. How do you evaluate this, Well,
Speaker 1: it's hard not to think that that's what's happening here,
Speaker 1: given all of the concern that conservatives expressed over the
Speaker 1: years about how much power this director has. To turn
Speaker 1: it over to somebody that has never worked in a
Speaker 1: bank or a credit union and has no experience whatsoever
Speaker 1: that's discernible in doing any of the kinds of federal
Speaker 1: regulatory work that this agency does, it seems like a
Speaker 1: pretty big surprise. So I think that the I think
Speaker 1: that the likely outcome is that this is going to
Speaker 1: delay consideration of a of a permanent director and is
Speaker 1: probably going to keep Director Mulvaney in control of the agency.
Speaker 1: So from what you just said, do you think that
Speaker 1: she will not be confirmed? Well, I think it's tough
Speaker 1: to say. I can imagine that some Democrats will be
Speaker 1: tempted to call the President's bluff and confirm her in
Speaker 1: order to try and get something done. But I don't
Speaker 1: know that I have a crystal ball on that. I
Speaker 1: do think that it's a very controversial nomination. UH. And
Speaker 1: what it does, at least immediately in the short term,
Speaker 1: is it allows uh mc mulvaney to continue to operate
Speaker 1: as the acting head of the agency under the Federal
Speaker 1: Vacancies Reform Act. So that statute of the statute Congress
Speaker 1: past that try that allows UM the President to have
Speaker 1: temporary heads of agencies while UM for two ten days
Speaker 1: after a vacancy it opens up or during a period
Speaker 1: of time in which uh a nominee is pending before
Speaker 1: the Senate. And so in a fact, Mulvaney's term was
Speaker 1: coming up at the end of during this week, and
Speaker 1: this allows him to continue to be in charge until
Speaker 1: the Senate acts. Just about thirty seconds, Christopher, do we
Speaker 1: are we ever going to get someone that that consumer
Speaker 1: advocates wanting this job as long as President Trump is
Speaker 1: in office, and he opposes it just about twenty seconds. Sorry, sure,
Speaker 1: no problem. Well, I think it's I think it's something
Speaker 1: that the public deserves. You know, the Trump administration has
Speaker 1: had seven months to find someone to run this important
Speaker 1: watchdog agency, and it's remarkable that somehow they still have
Speaker 1: managed to pick a nominee with no discernible experience in
Speaker 1: consumer protection or banking. All right, thanks so much, I
Speaker 1: appreciate it. That's Christopher Peterson, a professor at the University
Speaker 1: of Utah Law School. Thanks for listening to the Bloomberg
Speaker 1: Law Podcast. You can subscribe and listen to the show
Speaker 1: on Apple Podcasts, SoundCloud, and on Bloomberg dot com slide podcast.
Speaker 1: I'm June Brosso. This is Bloomberg. H m hm