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

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Speaker 1: The Supreme Court had a new conservative majority this term,

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Speaker 1: but most business decisions did not fall down audiological lines. Still,

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Speaker 1: business fared well as it usually does at the Roberts Court,

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Speaker 1: winning decisions that cut back on union rights, raise new

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Speaker 1: hurdles for some consumer class actions, and slash the Federal

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Speaker 1: Trade Commission's power to seek monetary awards in court. Joining

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Speaker 1: me as Jonathan Macy, a professor at Yale Law School,

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Speaker 1: john over the years, has the Roberts Court been friendly

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Speaker 1: to business generally speaking? It's it's generally speaking pro business,

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Speaker 1: but not you know, not to a ridiculous degree stress.

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Speaker 1: So looking at the balance sheet, so to speak, does

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Speaker 1: it seem like it was a good term for business. Yeah.

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Speaker 1: I think the Supreme Court is a happy place for

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Speaker 1: business right now. I think it doesn't have any of

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Speaker 1: the pathologies that we've seen either the White House or Congress.

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Speaker 1: So I think the decisions are largely sensible. I think

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Speaker 1: business is reassured by the certainty that these decisions provided,

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Speaker 1: and the fact that the courts were not always making

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Speaker 1: these decisions around ideological grounds was also a source of comfort.

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Speaker 1: Let's take a look at some of the business wins

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Speaker 1: this term. In a case involving union rights and property rights,

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Speaker 1: the court rule that California was violating the Constitution with

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Speaker 1: the decades old regulation and achievement of Caesar Chavez's movement

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Speaker 1: that gives union organizers access to agricultural company land for

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Speaker 1: part of the year to talk to workers. This was

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Speaker 1: the only business decision this term where the vote was

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Speaker 1: six to three down audiological lines, and it was fairly

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Speaker 1: clear after the oral arguments that the unions were going

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Speaker 1: to lose the case. Here are Chief Justice John Roberts

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Speaker 1: and Justice Amy Coney Barrett. This could be end up

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Speaker 1: being an authorization to enter every day of the year.

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Speaker 1: But you would acknowledge is a taking. What is the

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Speaker 1: big deal here? If the severity goes to compensation as

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Speaker 1: the petitioners claim, why would it be that big of

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Speaker 1: a deal for California to say to the unions, listen

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Speaker 1: to compensate for the taking. If you want access, you

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Speaker 1: pay fifty bucks. How big a loss is this for unions? Well,

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Speaker 1: it's a fairly narrow decision in the way I would

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Speaker 1: characterize that much more as the property rights decision as

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Speaker 1: much as a pro business decision, but it does say

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Speaker 1: that farmers have you the right to their property in

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Speaker 1: their land. I think that was an important decision, that

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Speaker 1: the union's physical access to farm workers by going over

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Speaker 1: the land of farmers with somebody that was not going

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Speaker 1: to be permitted. I think it was fairly expected. I

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Speaker 1: don't think it's surprised anybody. I think it was the

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Speaker 1: right decision. There are only seven decisions this term that

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Speaker 1: when strictly down ideological lines. Why do you think this

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Speaker 1: was one of them? Well, I think that this was

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Speaker 1: a fairly clear year right line question. Are you going

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Speaker 1: to decide with property right or are you're going to

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Speaker 1: decide with union access? And in a decision like that,

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Speaker 1: you're going to get a pretty stark ideological schism. Do

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Speaker 1: you agree that the conservatives on the court have been

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Speaker 1: eroding the power of organized labor for some time, even

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Speaker 1: in eighteen reversing a forty year old precedent in the

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Speaker 1: Janice case. Is this court generally hostile to unions? I

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Speaker 1: don't think that they're hostile to unions. I don't think

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Speaker 1: that they're overly friendly to unions either, And I think

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Speaker 1: that there's a problem with unions in this country that

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Speaker 1: they're not doing a particularly good job of representing workers,

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Speaker 1: and they've had problems historically with corruption and the light.

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Speaker 1: And I think that it's much more a matter of

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Speaker 1: the unions haven't earned the Court's resuspect as much as

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Speaker 1: it is about the Supreme Court being anti worker. Let's

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Speaker 1: go to another business win, TransUnion versus Ramirez. In this case,

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Speaker 1: the Court put new limits on consumed lawsuits backing TransUnion

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Speaker 1: and its challenge to a forty million dollar reward to

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Speaker 1: thousands of people the credit reporting firm characterized as potential terrorists.

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Speaker 1: Does this raise the bar for some consumer class actions?

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Speaker 1: This decision was one of the most surprising decisions. We

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Speaker 1: have a special situation with these large credit reporting agencies.

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Speaker 1: They have a tremendous amount of of power and an

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Speaker 1: ability to really wreck people's lives. And so people were

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Speaker 1: watching that case carefully to see if there are going

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Speaker 1: to be any meaningful constraints put on these large credit

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Speaker 1: reporting agencies. It was a five to four vote. Justice

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Speaker 1: Clarence Thomas split from the Conservatives and joined the liberals,

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Speaker 1: writing the descent. It's one of only two times this

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Speaker 1: term that he joined the liberals in descent. Why did

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Speaker 1: Thomas split from the conservatives here? You know, he's always

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Speaker 1: been a little bit of a wild card on these

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Speaker 1: business law cases, and so he's not as leear a

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Speaker 1: member of the conservative camp in cases like this. Let's

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Speaker 1: turn to Penny's versus New Jersey, where the court rule

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Speaker 1: that natural gas pipeline projects with federal approval can see

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Speaker 1: state owned land. Was this a bit of a surprise

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Speaker 1: because the justices often favor states rights. Well, many of

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Speaker 1: the justices are the courts also, you know, in favor

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Speaker 1: of big business as well, so there was a little

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Speaker 1: bit of attention in this case. It was a five

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Speaker 1: to four ruling along really unusual lines. In the majority

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Speaker 1: the chief justice conservative Samuel Alito and Brett Kavanaugh, and

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Speaker 1: liberals Stephen Bryer and Sonya so To Mayor in descent,

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Speaker 1: Conservative justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett

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Speaker 1: were joined by liberal Justice Elana Kagan. How do you

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Speaker 1: explain that line up? Well, a lot of it I

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Speaker 1: think I had to do in this case with personalities.

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Speaker 1: You're quite right, there was, you know, some significant departures

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Speaker 1: with the traditional ways that these justices oot, and they

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Speaker 1: were kind of all over the map. I don't think

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Speaker 1: you can draw a clear ideological map from the justices

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Speaker 1: to the results in that particular case. John, Let's look

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Speaker 1: at another win for business in a case where the

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Speaker 1: facts were horrifying, involving child slave labor on Coco farms

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Speaker 1: on the Ivory Coast, but the legal question was fairly prosaic.

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Speaker 1: Could US corporations Nessley and Cargo in this case be

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Speaker 1: sued by foreigners for aiding and abetting actions overseas? The

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Speaker 1: answer was no. Here's Justice Samuel Alito during the oral arguments.

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Speaker 1: So after fifteen years, isn't too much to ask that

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Speaker 1: you allege specifically that the defendants involved the defendants who

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Speaker 1: were before us here specifically new that first child labor

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Speaker 1: was being used on the farms or farm cooperatives with

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Speaker 1: which they did business. Is that too much to ask

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Speaker 1: after the oral arguments? I think this was expected. I

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Speaker 1: think so. I don't think it was a very big surprise.

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Speaker 1: I think the courts Fielder has to be some limit

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Speaker 1: to the amount of the extent to which US courts

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Speaker 1: are going to be used to settle, you know, civil

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Speaker 1: rights litigation or human rights litigations in ways that really

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Speaker 1: don't affect the US in any meaningful way. Now, in

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Speaker 1: a unanimous decision, the court slashed the Federal Trade Commission's

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Speaker 1: power to seek monetary awards in court, throwing at a

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Speaker 1: legal tool the Consumer Protection Agency has used to collect

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Speaker 1: billions of dollars over the past decade. Is it surprising

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Speaker 1: that this was unanimous? I was a little bit surprised

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Speaker 1: by that. Actually, this is a decision that will unambiguously

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Speaker 1: benefit certain businesses, and I think that there was just

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Speaker 1: a sense of a little bit too much bureaucratic overreaching there.

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Speaker 1: But I think it was quite a surprise at how

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Speaker 1: the site of that particular decision was how much does

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Speaker 1: it limit the ftc S power? So I think it's

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Speaker 1: a it's a fairly minor limit on their power. The ft.

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Speaker 1: She still has a lot of you know, arrows, and

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Speaker 1: it's quiver if you will, a lot of strategies, so

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Speaker 1: it will still be able to take action to benefit consumers.

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Speaker 1: They're just um, you know, the ability to recover certain

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Speaker 1: kinds of games in these consumer base cases has been

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Speaker 1: curtailed a bit. Next the Goldman Sachs case, where investors

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Speaker 1: accused the company of misleading shareholders by masking conflicts of

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Speaker 1: interest in mortgage backed securities it sold. The court gave

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Speaker 1: Goldman another chance to stop the lawsuit, but it seems

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Speaker 1: like such a long shot. So I don't know whether

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Speaker 1: to characterize this as a business win or a business loss. Yeah,

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Speaker 1: I don't know either. Think that one is a little

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Speaker 1: bit difficult to characterize. I think it has to be

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Speaker 1: viewed as at least a modest setback is that lawsuit

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Speaker 1: is allowed to go forward against Goldman Stacks. It's allowed

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Speaker 1: to go forward, but it seems like the Second Circuit

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Speaker 1: is going to rule against Goldman as it did before.

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Speaker 1: I think that's right. I think that's absolutely right. So

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Speaker 1: now let's turn to some of the business losses, starting

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Speaker 1: with a huge loss for the n double A, a

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Speaker 1: unanimous rejection of the n C double as bid for

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Speaker 1: broad antitrust immunity, clearing the way for a greater compensation

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Speaker 1: for student athletes. The justices were obviously sympathetic to the

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Speaker 1: athletes during oral arguments, with Justice is Brett Kavanaugh, Clarence Thomas,

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Speaker 1: and Samuel Alito questioning why athletes weren't getting a bigger

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Speaker 1: share of the billions of dollars schools get from sports.

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Speaker 1: I mean you said earlier, Uh, this would allow the

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Speaker 1: players to receive six thousand dollars a year, as if

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Speaker 1: that were some exorbitant amount when the TV contracts are

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Speaker 1: in the billions. Well, it just strike that the coaches

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Speaker 1: salaries have ballooned and they're in the amateur rights, as

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Speaker 1: are the players. So the argument is they are recruiting

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Speaker 1: their use up and then they're cast aside without even

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Speaker 1: a college degree. So they say, how can this be

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Speaker 1: defended in the name of amateurism. Well, this was a

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Speaker 1: case in which the U. S. Supreme Court decided that

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Speaker 1: this was going to be the beginning of the end

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Speaker 1: for a very long period of n C double A

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Speaker 1: exploitation of essentially child labor in the activities of student athletes.

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Speaker 1: This decision was long expected. The culture gap between the

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Speaker 1: in and the rest of the known universe is really

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Speaker 1: quite significant in this case, and essentially the ability of

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Speaker 1: student athletes used them one bus, e cetera, cetera was

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Speaker 1: the very obvious decision. I think what was notable about

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Speaker 1: the decision was the strength of the rhetoric in Justice

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Speaker 1: Kavanaugh's opinion. It was very eloquent decision defending the rights

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Speaker 1: of these athletes. Yes, Kavanaugh's concurrence seemed to be opening

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Speaker 1: the door to more suits by student athletes, sort of

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Speaker 1: cheering student athletes on. Absolutely that this was only the beginning,

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Speaker 1: and it does him as though it's been teed up

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Speaker 1: for future losses for the m C double A in

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Speaker 1: subsequent litigation. I think you're absolutely right. There was another

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Speaker 1: unanimous ruling about four that it had to face product

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Speaker 1: liability claims from auto accidents in Montana and Minnesota. How

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Speaker 1: much is that a setback for corporations? I think that

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Speaker 1: decision was also largely expected, and I don't think it'll

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Speaker 1: be you know, significant setback forations or in stock price movement.

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Speaker 1: I think support that And now why not? Is it

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Speaker 1: a limited decision? Yeah? Well, I think that the chances

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Speaker 1: of these particular problems arising with great regularity are not

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Speaker 1: very significant, and their problems that can be dealt with

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Speaker 1: through engineering and insurance and built into the price of

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Speaker 1: these automobiles and other manufactured goods. Johnson and Johnson didn't

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Speaker 1: argue a case before the Supreme Court, but it's certainly

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Speaker 1: lost at the Court when the Justice has refused to

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Speaker 1: take it to peel from a two point one billion

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Speaker 1: dollar award to women who claimed It's baby powder was

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Speaker 1: contaminated with cancer causing asbestos. So the Supreme Court left

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Speaker 1: intact the largest verdict in the almost decade long litigation

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Speaker 1: over the iconic product. Why do you think not even

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Speaker 1: four justices we're willing to take this case. They just

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Speaker 1: declined to consider it. And I think that they're just

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Speaker 1: respecting that the trial process and not interfering with trial

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Speaker 1: court results, you know, up holding the jury system. So

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Speaker 1: my scorecard shows many significant business wins and a few

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Speaker 1: losses a good term on the whole for business. Is

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Speaker 1: there a particular reason that you see why there are

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Speaker 1: so many different lineups in these cases and several unanimous cases.

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Speaker 1: I think the courts are kind of a deacon of

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Speaker 1: civilization right now. I think the Supreme Court in particular

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Speaker 1: is trying to show that there is something to the

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Speaker 1: rule of law, that there is a difference of stark

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Speaker 1: divide line between law and politics. And as incredibly politicized

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Speaker 1: is the nomination an appointment process to the courts has

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Speaker 1: become particularly under Congress recently. The fact of the matter

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Speaker 1: is that the people who are getting appointed are are

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Speaker 1: generally quite professional and competent legal minds and are following

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Speaker 1: the law. Thanks for being on the show, John, That's

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Speaker 1: Professor Jonathan Macy of Yale Law School. Coming up next

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Speaker 1: on The Bloomberg Law Show, The Gender Gap at the

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Speaker 1: Supreme Court Lectorn. We will hear your arguments first this

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Speaker 1: morning in case Mahannoi Areas School District versus b l

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Speaker 1: MS Black. Thank you, Mr Chief Justice, and may please

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Speaker 1: the Court. It's not that often that a woman takes

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Speaker 1: the lectun at the Supreme Court. Lisa Blatt is a

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Speaker 1: Supreme Court star. She's argued forty one cases before the Court,

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Speaker 1: more than any other woman, winning thirty seven. But Blatt

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Speaker 1: of Williams Connelly is the exception rather than the rule.

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Speaker 1: Men outnumbered women advocates on five to twenty eight at

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Speaker 1: arguments during this term. Joining me as Kimberly Strawbridge Robinson

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Speaker 1: Bloomberg Law Supreme Court reporter who has been tracking the numbers. Kimberly,

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Speaker 1: we've talked before about how women lawyers are underrepresented at

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Speaker 1: the Supreme Court. Had the numbers improved this past term, Well,

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Speaker 1: they really haven't improved over the past decade, we've seen

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Speaker 1: the percentage of women arguing cases fall between twelve and

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Speaker 1: this term, it fell right in the middle of that.

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Speaker 1: But this is an issue that the percentage goes a

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Speaker 1: little bit up and down, but we still see a

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Speaker 1: big gap in male and femails arguing at the Supreme Court.

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Speaker 1: You talked to a lot of experts in this area.

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Speaker 1: What is the problem? I mean, there are so many

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Speaker 1: women attorneys practicing law. Why are there so few at

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Speaker 1: the Supreme Court level. This is a really big problem

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Speaker 1: and that has many different kind of solutions that people

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Speaker 1: are looking to and the hopes that the next ten

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Speaker 1: years will be better than the last ten years. One

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Speaker 1: problem that we found when just looking at the numbers

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Speaker 1: of Supreme Court arguments was that men tend to do

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Speaker 1: repeat arguments at the Supreme Court, whereas women don't often

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Speaker 1: get those same opportunities. So we saw a number of

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Speaker 1: men argued five cases, which doesn't sound like a lot,

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Speaker 1: but there just aren't that many Supreme Court cases and

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Speaker 1: ended up being something like thirteen percent of all the

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Speaker 1: cases were argued by these five men. On the flip side,

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Speaker 1: there was only a handful of female attorneys, so even

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Speaker 1: argued two cases. So you know, one thing that advocates

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Speaker 1: have pointed out is that having a star attorney at

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Speaker 1: a law firm do all of the arguments, can you know,

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Speaker 1: really cause this gender gap to persons. It was interesting

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Speaker 1: you spoke to Hogan and levels Neil Catial and he

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Speaker 1: said the lack of diversity in the Supreme Court bar

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Speaker 1: is something that keeps him up nights. But yet he

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Speaker 1: argued three of his firms four arguments this term. That's right.

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Speaker 1: And you know a lot of people who I spoke

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Speaker 1: to said, it's not just about the partner at the top.

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Speaker 1: A lot of it's about convincing clients. These are their livelihoods,

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Speaker 1: especially when you're talking about companies. General councils have to

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Speaker 1: go back to their boards and say, we hired the

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Speaker 1: best Supreme Court advocate rather than you know, we gave

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Speaker 1: the junior partner an opportunity to argue a case. What

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Speaker 1: really matters to them is the win. But I will

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Speaker 1: note that Neil Chastel is really interesting because he's one

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Speaker 1: of only a handful of attorneys of color who argue

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Speaker 1: at the Court. And when we talk about gaps in

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Speaker 1: coverage of advocates at the Court, the racial gap is

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Speaker 1: one of those really big ones too, which is probably

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Speaker 1: even worse than the gender gaps that exists. So five

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Speaker 1: male lawyers argued four cases each, which represented of all

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Speaker 1: the arguments at the court, and one of those advocates,

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Speaker 1: Ken and Shan McGann, is a man of color. That's true.

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Speaker 1: So again this was Cannon Shamogam at Paul White. You know,

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Speaker 1: they are probably a number of factors that could really

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Speaker 1: play into why he was the only advocate from his

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Speaker 1: firm to get up to the Supreme Court lecture in

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Speaker 1: this term, including that they're a really new practice so

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Speaker 1: their bench is not that deep. But it does really

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Speaker 1: highlight the problem of just trying to count the number

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Speaker 1: of arguments by women. We lose a lot of other

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Speaker 1: kinds of diversity in the conversation as well, which deserves

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Speaker 1: to be talked about. I suppose if you're a client

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Speaker 1: and you know that one of the attorneys has argued

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Speaker 1: multiple times at the Supreme Court, you'd want that person

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Speaker 1: to argue for you. But it's also troubling that even

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Speaker 1: with first time appearances, men out number the women, thirty

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Speaker 1: seven men compared to eleven women. Yeah, I think that

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Speaker 1: was really surprising for a lot of the advocates who

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Speaker 1: I talked to, because there is kind of this sense

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Speaker 1: that there's been so much light on this that things

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Speaker 1: should be getting better, but that number really suggests that

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Speaker 1: it's not. And when you dig a little deeper into

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Speaker 1: that number, you see that law firms are also driving

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Speaker 1: the disparity for first time advocates, although instead of being

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Speaker 1: at these big law firms, you know, with one big

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Speaker 1: Supreme Court star, it tends to be you know, smaller

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Speaker 1: firms solos or regional law firms that are pushing that diversity.

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Speaker 1: But it's still a problem, and one that suggests we're

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Speaker 1: not making a lot of progress. Some women do seem

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Speaker 1: to be trying to fix the problem. Tell us about

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Speaker 1: Lisa Black, who she is and what she's been doing right, Well,

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Speaker 1: she's the female advocate who's argued the most of the

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Speaker 1: Supreme Court. She's argued forty one cases, and this year

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Speaker 1: it seemed like there was a real effort to get

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Speaker 1: two other women in her practice to get their first

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Speaker 1: Supreme Court arguments, and actually one notch too, Fara Harris,

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Speaker 1: and she ended up being the only woman from private

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Speaker 1: practice who actually argued more than one case at the

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Speaker 1: Supreme Court. But again it Lisa had a really conscious effort,

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Speaker 1: not just by the time the argument came around, but

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Speaker 1: from the very start to really sell you know, these

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Speaker 1: two other younger partners to the clients in order to

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Speaker 1: get the comfortable with allowing them to argue. And all

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Speaker 1: four of their cases this year over at what it

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Speaker 1: was and Connolly, we're argued by women. Lisa Black told

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Speaker 1: you she just couldn't give up the cheerleader case. That's right.

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Speaker 1: So anybody who's seen Lisa Black argue knows that she's

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Speaker 1: a really passionate um arguers. She's very aggressive, and she

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Speaker 1: has this way with the justices that I just don't

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Speaker 1: think anyone else could get get away with very casual um.

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Speaker 1: And this case was about a teenager who had been

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Speaker 1: punished by a school district because she used profanity on

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Speaker 1: social media. And so this was a case kind of

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Speaker 1: a matchmate in heaven um for Lisa Black Um and

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Speaker 1: she admitted that she just can't give it up. And

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Speaker 1: she recognizes that that's hard for other partners to do,

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Speaker 1: but she said that's something that you know, they need

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Speaker 1: to be able to do to step aside in order

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Speaker 1: to kind of start to bridge this gap a little bit.

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Speaker 1: You know, another thing is I assume that the people

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Speaker 1: who are writing the briefs are not the lawyers who

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Speaker 1: are doing the arguments. So the people who write the

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Speaker 1: briefs are normally more junior. That's true. Often that's the

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Speaker 1: cases you have, you know, kind of a leite associator

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Speaker 1: or junior partner take the first crack at writing the briefs.

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Speaker 1: That's not to say that you know, the person's the

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Speaker 1: top isn't very much involved. Um, they are, but oftentimes

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Speaker 1: you know, that is something to highlight two clients, is

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Speaker 1: that this person wrote your brief. They know the arguments

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Speaker 1: in and out, um, and they probably could do a

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Speaker 1: really strong job making the arguments orally as well as

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Speaker 1: in writing. So what is the situation at the Solicitor

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Speaker 1: General's Office as far as women and women arguing Supreme

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Speaker 1: Court cases? Well, the Solicitor General's Office is a huge

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Speaker 1: driver of all kinds of these you know gaps that

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Speaker 1: we have men women, um, and you know, racial diversity

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Speaker 1: and diversity of practice. Um. That's because they just argue

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Speaker 1: so many more cases than any other litigant. And it's

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Speaker 1: a place where we really see, you know, because the

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Speaker 1: office is small and they are used so many cases.

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Speaker 1: It's a real opportunity, um for young lawyers to get

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Speaker 1: a number of arguments under their belts so that when

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Speaker 1: they of the office, they can say, I'm an experienced

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Speaker 1: Supreme Court advocate. And that office, you know, for a

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Speaker 1: while had been kind of on parity with equal men

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Speaker 1: and women in it, and fell sharply during the first

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Speaker 1: year of the Trump administration. But those numbers are climbing,

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Speaker 1: and right now we have the person who's leading that

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Speaker 1: is a woman, Elizabeth Polager Um, and so I would

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Speaker 1: expect those numbers to go up. But the Solicitor General's

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Speaker 1: Office is just one of these pipelines, you know, as

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Speaker 1: well as partners stepping aside, as well as filling the

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Speaker 1: Solicitor General's Office with you know, a diverse group of people.

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Speaker 1: It's just one of many things that needs to change

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Speaker 1: in order for us to see some equality here and

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Speaker 1: even there. As your article points out, two of the

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Speaker 1: male attorneys at the s g s office argued four

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Speaker 1: cases each. That's right, and these were both you know,

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Speaker 1: the office has just three career officials, um, who are

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Speaker 1: really long time advocates and so it's not surprising that

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Speaker 1: those people would argue the most cases. I think, um,

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Speaker 1: you know, there may be three or four advocates, I

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Speaker 1: think just three who have argued a hundred cases um,

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Speaker 1: and two of them came you know, from those career positions.

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Speaker 1: But right now they're all filled by men, um and

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Speaker 1: so that of course is going to be a huge

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Speaker 1: driver of lack of diversity. And they're all white men.

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Speaker 1: So it's gonna you know, hurt kind of the numbers

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Speaker 1: on all levels um. And so until that changes, I think,

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Speaker 1: you know, we're gonna again have to look to you know,

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Speaker 1: that as a significant driver, and we'll see if the

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Speaker 1: numbers overall improved next term. Thanks so much, Kimberly. That's

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Speaker 1: Bloomberg Law. Supreme Court reporter Kimberly Strawbridge Robinson. I'm June

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Speaker 1: Gross and you're listening to Bloomberg