1
00:00:03,200 --> 00:00:08,719
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

2
00:00:10,360 --> 00:00:14,440
Speaker 2: The Court is mired in a Christis of ethics. These

3
00:00:14,480 --> 00:00:18,840
Speaker 2: scandals involving the justices have caused public opinion to question

4
00:00:18,920 --> 00:00:20,480
Speaker 2: the Court's fairness and independence.

5
00:00:21,120 --> 00:00:24,400
Speaker 1: The public's confidence in the Supreme Court has fallen to

6
00:00:24,640 --> 00:00:29,880
Speaker 1: historic lows following a series of controversial rulings that overturned

7
00:00:30,040 --> 00:00:34,879
Speaker 1: landmark decisions on abortion rights and federal regulatory powers, and

8
00:00:35,000 --> 00:00:39,640
Speaker 1: determined that former presidents have broad immunity from prosecution. So

9
00:00:39,800 --> 00:00:43,920
Speaker 1: President Biden, with less than six months left in his presidency,

10
00:00:44,360 --> 00:00:47,640
Speaker 1: is calling for dramatic changes to the Court that have

11
00:00:47,800 --> 00:00:51,520
Speaker 1: no chance of being approved by a closely divided Congress.

12
00:00:52,080 --> 00:00:55,680
Speaker 1: He's calling for doing away with lifetime appointments to the Court,

13
00:00:56,000 --> 00:00:59,520
Speaker 1: an enforceable code of ethics for the justices, and a

14
00:00:59,600 --> 00:01:04,880
Speaker 1: constantitutional amendment reversing that Supreme Court presidential immunity decision.

15
00:01:05,440 --> 00:01:07,760
Speaker 2: We need these reforms we sort trust in the courts,

16
00:01:08,319 --> 00:01:11,600
Speaker 2: preserve the system of checks and balances that are vital

17
00:01:11,600 --> 00:01:14,440
Speaker 2: to our democracy. They're also common sense.

18
00:01:14,240 --> 00:01:20,400
Speaker 1: Reforms, common sense, perhaps but controversial definitely. Joining me is

19
00:01:20,440 --> 00:01:24,800
Speaker 1: William Traynor, Dean of Georgetown law and a constitutional history scholar.

20
00:01:25,160 --> 00:01:28,800
Speaker 1: So Biden is suggesting term limits for the justices, a

21
00:01:28,880 --> 00:01:32,080
Speaker 1: system in which the sitting president would appoint a justice

22
00:01:32,160 --> 00:01:35,919
Speaker 1: every two years and that justice would spend eighteen years

23
00:01:35,920 --> 00:01:38,920
Speaker 1: on the court. So that would give each president a

24
00:01:39,000 --> 00:01:42,880
Speaker 1: chance to appoint justices. This is not a new idea.

25
00:01:43,280 --> 00:01:45,840
Speaker 1: Would it require a constitutional amendment?

26
00:01:46,280 --> 00:01:48,600
Speaker 3: No, this is not a new idea. The start of

27
00:01:48,600 --> 00:01:52,520
Speaker 3: his administration, President Biden appointed a commission to look at

28
00:01:52,720 --> 00:01:56,120
Speaker 3: the possibilities of Supreme Court reform, and this is one

29
00:01:56,160 --> 00:01:59,400
Speaker 3: of the proposals that they made and it is adopted

30
00:01:59,480 --> 00:02:02,240
Speaker 3: to just set it forward. So it's something that people

31
00:02:02,240 --> 00:02:04,160
Speaker 3: have been focusing on for a number of years, and

32
00:02:04,200 --> 00:02:07,560
Speaker 3: there's a debate about whether it requires constitutional amendments. There

33
00:02:07,720 --> 00:02:10,600
Speaker 3: have never been term limits for the court, so it

34
00:02:10,639 --> 00:02:13,839
Speaker 3: has always been the case that when people have been

35
00:02:14,160 --> 00:02:17,800
Speaker 3: appointed to the court, they've stayed their entire life until

36
00:02:17,800 --> 00:02:20,839
Speaker 3: they resigned. So it would be a new practice in

37
00:02:20,960 --> 00:02:24,200
Speaker 3: the United States Constitution. And so there's a debate about

38
00:02:24,240 --> 00:02:27,120
Speaker 3: whether you need a constitutional amendment to do this or not.

39
00:02:27,480 --> 00:02:32,040
Speaker 3: So I think it should be constitutional because historically the

40
00:02:32,120 --> 00:02:35,720
Speaker 3: duties of the Supreme Court justices have not always been

41
00:02:35,720 --> 00:02:39,600
Speaker 3: the same and so this is similarly just altering what

42
00:02:39,720 --> 00:02:42,360
Speaker 3: the duties of Supreme Court justices would be. But again

43
00:02:42,400 --> 00:02:43,919
Speaker 3: that's something that good people debate.

44
00:02:44,160 --> 00:02:47,600
Speaker 1: Yeah, some argue that the term limits proposal is at

45
00:02:47,639 --> 00:02:52,320
Speaker 1: odds with Article three, which provides that justices shall hold

46
00:02:52,360 --> 00:02:54,560
Speaker 1: their offices during good behavior.

47
00:02:55,000 --> 00:02:57,840
Speaker 3: So one of the questions is this consisting with the

48
00:02:57,880 --> 00:03:00,280
Speaker 3: original understanding? And I think it is. One of the

49
00:03:00,360 --> 00:03:03,679
Speaker 3: changes that we've seen over time is Supreme pur justices

50
00:03:03,800 --> 00:03:06,359
Speaker 3: are now on the court much longer than they were

51
00:03:06,360 --> 00:03:08,920
Speaker 3: at the beginning. So if you look at the Washington administration,

52
00:03:09,000 --> 00:03:12,679
Speaker 3: for example, the average tenure of the justices he appointed

53
00:03:13,240 --> 00:03:16,239
Speaker 3: was less than eight years, whereas now the most recent

54
00:03:16,280 --> 00:03:18,560
Speaker 3: departures from the court he go through death or resignation,

55
00:03:18,960 --> 00:03:22,280
Speaker 3: have been about thirty years. So this is dramatically different

56
00:03:22,800 --> 00:03:25,639
Speaker 3: than what was envisioned at the start. And it also

57
00:03:25,760 --> 00:03:28,840
Speaker 3: means that there's a tremendous amount of luck in terms

58
00:03:28,880 --> 00:03:32,680
Speaker 3: of which president controls the justices on the Court. So,

59
00:03:33,240 --> 00:03:37,360
Speaker 3: for example, Jimmy Carter in four years had actually no appointment,

60
00:03:37,800 --> 00:03:40,640
Speaker 3: whereas in the same period of time Donald Trump had

61
00:03:40,680 --> 00:03:44,200
Speaker 3: three appointments. So one of the things that Biden's proposal

62
00:03:44,240 --> 00:03:48,080
Speaker 3: would do is essentially take the luck and happenstance out

63
00:03:48,160 --> 00:03:51,080
Speaker 3: of the appointments to the Court by saying that every

64
00:03:51,160 --> 00:03:55,200
Speaker 3: president would have an appointment every two years. So that

65
00:03:55,360 --> 00:03:57,840
Speaker 3: really would bring I think the makeup of the court

66
00:03:58,040 --> 00:04:01,040
Speaker 3: much more in lign with what people determined in the

67
00:04:01,040 --> 00:04:04,880
Speaker 3: presidential election. So I think those are really the dominant

68
00:04:04,880 --> 00:04:08,720
Speaker 3: reasons why I think this would make sense the terms

69
00:04:08,720 --> 00:04:11,560
Speaker 3: in office for so long, and it also would bring

70
00:04:11,560 --> 00:04:14,280
Speaker 3: it in alignment much more with the presidential acts.

71
00:04:14,520 --> 00:04:18,240
Speaker 1: It seems like there's no chance that this Congress would

72
00:04:18,279 --> 00:04:21,359
Speaker 1: pass such a law. But let's say a law was passed.

73
00:04:21,640 --> 00:04:25,520
Speaker 1: Would the Supreme Court then be the ultimate arbiter of

74
00:04:25,600 --> 00:04:27,240
Speaker 1: whether it's constitutional or not.

75
00:04:27,600 --> 00:04:30,440
Speaker 3: So it's will ultimately be the arbiter as to whether

76
00:04:30,480 --> 00:04:33,240
Speaker 3: it's constitutional or not. I don't know kind of where

77
00:04:33,520 --> 00:04:35,960
Speaker 3: the case that would tee it up would be, but

78
00:04:36,080 --> 00:04:39,159
Speaker 3: ultimately something like this would be it's a question for

79
00:04:39,200 --> 00:04:39,920
Speaker 3: the Supreme Court.

80
00:04:40,640 --> 00:04:44,000
Speaker 1: Biden is also calling for a binding ethics code that

81
00:04:44,040 --> 00:04:49,240
Speaker 1: would require the justices to disclose gifts, refrain from political activity,

82
00:04:49,279 --> 00:04:53,680
Speaker 1: and recuse themselves from cases presenting conflicts of interest for

83
00:04:54,080 --> 00:04:57,800
Speaker 1: themselves or their spouses. Now Democrats have been trying to

84
00:04:57,839 --> 00:05:01,200
Speaker 1: pass an ethics code to no evail. Are there any

85
00:05:01,279 --> 00:05:06,600
Speaker 1: constitutional problems with Congress passing an ethics code for the justices?

86
00:05:07,640 --> 00:05:10,799
Speaker 3: Well, I don't think there's a problem with this. I

87
00:05:10,839 --> 00:05:15,080
Speaker 3: think that, for example, we have binding codes of ethics

88
00:05:15,120 --> 00:05:18,400
Speaker 3: for people in the executive pinch. It's really the same thing.

89
00:05:18,480 --> 00:05:22,400
Speaker 3: Congress here would be creating an ethical framework for Supreme

90
00:05:22,440 --> 00:05:25,240
Speaker 3: Court justices. So it seems to me that it's something

91
00:05:25,320 --> 00:05:27,800
Speaker 3: that Congress should be able to do. But again, this

92
00:05:27,920 --> 00:05:30,719
Speaker 3: is something that is debated, and there's some people who

93
00:05:30,720 --> 00:05:33,839
Speaker 3: will say, for example, Justice Alito has said this would

94
00:05:33,920 --> 00:05:36,880
Speaker 3: not be constitutional. So ultimately this would be a question

95
00:05:36,960 --> 00:05:37,840
Speaker 3: for the Court as well.

96
00:05:38,279 --> 00:05:39,839
Speaker 1: That's always the catch twenty two.

97
00:05:40,360 --> 00:05:40,560
Speaker 2: You know.

98
00:05:40,600 --> 00:05:43,440
Speaker 1: Alitos claimed in a Wall Street Journal injury that no

99
00:05:43,520 --> 00:05:46,799
Speaker 1: provision in the Constitution gives Congress the authority to regulate

100
00:05:46,800 --> 00:05:50,719
Speaker 1: the Supreme Court period, But the Constitution states that the

101
00:05:50,760 --> 00:05:55,599
Speaker 1: Supreme Court's jurisdiction must be exercised under such regulations as

102
00:05:55,600 --> 00:05:56,800
Speaker 1: the Congress shall make.

103
00:05:57,200 --> 00:05:59,479
Speaker 3: Well, the question is whether this is the kind of

104
00:05:59,520 --> 00:06:03,560
Speaker 3: regulation that the Constitution has contemplated, And again, this would

105
00:06:03,560 --> 00:06:06,200
Speaker 3: be a new question the Sucreme Court has never been

106
00:06:06,279 --> 00:06:10,320
Speaker 3: subject to congressional rules like this. But as a legal matter,

107
00:06:10,400 --> 00:06:12,720
Speaker 3: the question is I think whether this would fall into

108
00:06:13,040 --> 00:06:16,920
Speaker 3: the Constitution's text about regulations, and that's really debatable. Yeah,

109
00:06:16,960 --> 00:06:19,480
Speaker 3: I think it would, but again just as Alito has

110
00:06:19,520 --> 00:06:21,640
Speaker 3: said that it would not, and it would ultimately be

111
00:06:21,680 --> 00:06:22,560
Speaker 3: a question for the court.

112
00:06:22,920 --> 00:06:24,400
Speaker 1: I mean, what would it really do. It would stop

113
00:06:24,440 --> 00:06:27,880
Speaker 1: them from accepting gifts, but it wouldn't do anything to

114
00:06:28,680 --> 00:06:31,240
Speaker 1: make them less partisan in their decision making.

115
00:06:31,600 --> 00:06:34,279
Speaker 3: Well, you know, the argument would be that when they're

116
00:06:34,320 --> 00:06:37,000
Speaker 3: accepting gifts, you know, to fix the way in which

117
00:06:37,000 --> 00:06:39,440
Speaker 3: they think about cases. So it's you know, it's it's

118
00:06:39,480 --> 00:06:43,719
Speaker 3: not partisan directly. But I think underlying the idea of

119
00:06:43,720 --> 00:06:46,960
Speaker 3: an ethics code is the idea that when we received gifts,

120
00:06:47,120 --> 00:06:50,280
Speaker 3: it tends to color your point of view, and so

121
00:06:50,440 --> 00:06:52,880
Speaker 3: the ethics code would would take that out of the equation.

122
00:06:53,200 --> 00:06:55,160
Speaker 1: I don't know if he has, you know, made any

123
00:06:55,400 --> 00:06:59,479
Speaker 1: very specific suggestions, but this would be enforceable.

124
00:06:59,200 --> 00:07:03,159
Speaker 3: By well, I think that's a question. So what's the

125
00:07:03,200 --> 00:07:07,120
Speaker 3: mechanism for enforcement. One of the suggestions that people have

126
00:07:07,240 --> 00:07:10,880
Speaker 3: had is that you would put together a panel of

127
00:07:10,920 --> 00:07:13,800
Speaker 3: lower court judges who would decide what's appropriate and what's

128
00:07:13,840 --> 00:07:16,760
Speaker 3: not appropriate. So it would take it out of the

129
00:07:16,800 --> 00:07:19,520
Speaker 3: Supreme Court deciding for its help and give it to

130
00:07:19,560 --> 00:07:22,520
Speaker 3: other federal judges. So I think that's if this were

131
00:07:22,520 --> 00:07:24,880
Speaker 3: to go forward, and it's not going to go forward

132
00:07:24,920 --> 00:07:26,560
Speaker 3: with this Congress, but if we're to go forward in

133
00:07:26,600 --> 00:07:29,400
Speaker 3: the future, I think that is the most likely framework

134
00:07:29,560 --> 00:07:33,080
Speaker 3: that lower court judges would be appointed to enforce the rules.

135
00:07:33,720 --> 00:07:36,840
Speaker 1: Then he's calling for a constitutional amendment to ensure that

136
00:07:36,920 --> 00:07:41,240
Speaker 1: former presidents can be tried for crimes committed while in office.

137
00:07:41,760 --> 00:07:46,960
Speaker 1: Amending the Constitution is virtually impossible these days. It requires

138
00:07:47,000 --> 00:07:50,960
Speaker 1: approval from three quarters of the states, and that means

139
00:07:50,960 --> 00:07:54,280
Speaker 1: that either political party can block an amendment.

140
00:07:54,880 --> 00:07:58,800
Speaker 3: Well, it's incredibly hard, but it's incredibly hard for really

141
00:07:59,120 --> 00:08:01,680
Speaker 3: for most of them and history. But I think this

142
00:08:01,840 --> 00:08:04,720
Speaker 3: is really more than anything else. It does two things.

143
00:08:04,760 --> 00:08:08,600
Speaker 3: One is it's a symbolic statement and it's also an

144
00:08:08,600 --> 00:08:14,040
Speaker 3: indication of disapproval of the Supreme Court's decision in Trumpers

145
00:08:14,000 --> 00:08:17,240
Speaker 3: of the United States. So I think it's unlikely that

146
00:08:17,320 --> 00:08:20,080
Speaker 3: this would be adopted, but it still is a very

147
00:08:20,080 --> 00:08:20,920
Speaker 3: powerful statement.

148
00:08:21,320 --> 00:08:23,960
Speaker 1: Biden didn't include a couple of things that have been

149
00:08:24,040 --> 00:08:28,520
Speaker 1: proposed at various times, one being packing the court or

150
00:08:28,560 --> 00:08:31,720
Speaker 1: adding more justices to the court, and that doesn't have

151
00:08:32,160 --> 00:08:36,960
Speaker 1: the legal problems that his other suggestions have. It's allowed

152
00:08:36,960 --> 00:08:37,880
Speaker 1: by the constitution.

153
00:08:38,520 --> 00:08:41,800
Speaker 3: That's right. Congress has the ability to establish the number

154
00:08:41,840 --> 00:08:44,760
Speaker 3: of justices on the court. So right now we have nine,

155
00:08:45,000 --> 00:08:46,839
Speaker 3: and we've had nine for more than one hundred and

156
00:08:46,880 --> 00:08:49,880
Speaker 3: fifty years, but that's not written into the Constitution. And

157
00:08:49,920 --> 00:08:53,280
Speaker 3: we've had different numbers of justices over time, so we've

158
00:08:53,280 --> 00:08:55,760
Speaker 3: had its huge times and we've had as many as ten.

159
00:08:56,040 --> 00:09:00,600
Speaker 3: But there's really no constitutional problem with creating more justiceship.

160
00:09:01,080 --> 00:09:04,880
Speaker 3: The reason why he didn't do that is that that

161
00:09:05,320 --> 00:09:09,640
Speaker 3: would feel very partisan. So for example, if you were

162
00:09:09,679 --> 00:09:13,280
Speaker 3: to have three more justices that a democratic president could appoint,

163
00:09:13,880 --> 00:09:16,959
Speaker 3: then there would be a point about those justices. It

164
00:09:17,120 --> 00:09:19,920
Speaker 3: almost inevitably the next time you had a Republican president

165
00:09:20,040 --> 00:09:23,920
Speaker 3: or Republican pyrs, it would be expanded even more. So

166
00:09:24,240 --> 00:09:27,560
Speaker 3: he has proposed something that's not packing the court but

167
00:09:27,679 --> 00:09:31,920
Speaker 3: is really designed to be i think nonpartisan, to get

168
00:09:32,040 --> 00:09:35,360
Speaker 3: every president moving forward two seats, and on top of that,

169
00:09:35,760 --> 00:09:38,600
Speaker 3: also to say that the justices on the court will

170
00:09:38,960 --> 00:09:43,080
Speaker 3: have lifetime tenure. So it will not alter short term

171
00:09:43,480 --> 00:09:48,000
Speaker 3: the court's makeup. There's six conservative justices, six Republican appointees,

172
00:09:48,080 --> 00:09:52,600
Speaker 3: three liberal justices, the three Democratic appointees. It would be

173
00:09:53,120 --> 00:09:57,520
Speaker 3: a very long time before you could conceivably have, under

174
00:09:57,600 --> 00:10:01,640
Speaker 3: President Biden's formula, a shift towards a Supreme Court in

175
00:10:01,679 --> 00:10:04,400
Speaker 3: which most of the appointees were Democratic. And in fact,

176
00:10:05,000 --> 00:10:08,079
Speaker 3: if for example, Donald Trump were to win in twenty

177
00:10:08,080 --> 00:10:11,520
Speaker 3: twenty four, this kind of legislation would allow him to

178
00:10:11,600 --> 00:10:14,319
Speaker 3: put more justices on the court. So if you were

179
00:10:14,360 --> 00:10:16,440
Speaker 3: to serve another term in office and you were to

180
00:10:16,440 --> 00:10:20,679
Speaker 3: have legislation like this, you'd have two more Republican appointed

181
00:10:20,800 --> 00:10:23,280
Speaker 3: justices on the Court, and that would actually shift the

182
00:10:23,320 --> 00:10:27,480
Speaker 3: Court to the right. So the proposal is not one

183
00:10:27,520 --> 00:10:30,880
Speaker 3: that's partisan. It's really one about establishing a framework for

184
00:10:30,920 --> 00:10:32,000
Speaker 3: the Court moving forward.

185
00:10:32,400 --> 00:10:34,800
Speaker 1: Coming up next on the Bloomberg Lawn Show, I'll continue

186
00:10:34,800 --> 00:10:38,920
Speaker 1: this conversation with Dean William Trainer of Georgetown Law. With

187
00:10:39,040 --> 00:10:42,240
Speaker 1: less than six months left in his presidency, why is

188
00:10:42,320 --> 00:10:45,800
Speaker 1: President Biden asking for these reforms that have no chance

189
00:10:45,840 --> 00:10:49,680
Speaker 1: of being approved by a closely divided Congress. With ninety

190
00:10:49,760 --> 00:10:54,360
Speaker 1: nine days to go before election day, President Joe Biden

191
00:10:54,480 --> 00:10:58,400
Speaker 1: says that extremism on the US Supreme Court is undermining

192
00:10:58,440 --> 00:11:02,359
Speaker 1: public confidence in the institution, and he called on Congress

193
00:11:02,400 --> 00:11:06,600
Speaker 1: to quickly establish term limits and an enforceable ethics code

194
00:11:06,640 --> 00:11:10,480
Speaker 1: for the nine justices. He also called on lawmakers to

195
00:11:10,640 --> 00:11:16,000
Speaker 1: ratify a constitutional amendment limiting presidential immunity. I've been talking

196
00:11:16,000 --> 00:11:19,520
Speaker 1: to William Traynor, dean of Georgetown Law and a constitutional

197
00:11:19,559 --> 00:11:22,440
Speaker 1: history scholar. Before the break. We were talking about some

198
00:11:22,559 --> 00:11:26,920
Speaker 1: of the proposals to reform the Supreme Court that President

199
00:11:26,920 --> 00:11:30,000
Speaker 1: bind did not put forward, and one of those is

200
00:11:30,160 --> 00:11:35,520
Speaker 1: something called jurisdiction stripping, which is allowable under the constitution. Right.

201
00:11:36,080 --> 00:11:40,360
Speaker 3: Congress has substantial control over the jurisdiction of the Court,

202
00:11:40,880 --> 00:11:43,160
Speaker 3: so at very times in the past it's taken certain

203
00:11:43,160 --> 00:11:45,880
Speaker 3: issues away from the Supreme Court, and that's what we

204
00:11:45,960 --> 00:11:50,440
Speaker 3: call jurisdiction striven. But that's not something that his provisions

205
00:11:50,520 --> 00:11:53,360
Speaker 3: or his proposals called for, and I think that's really

206
00:11:53,400 --> 00:11:56,240
Speaker 3: not been something that has been at the top of

207
00:11:56,280 --> 00:11:59,480
Speaker 3: the genus. His proposals really track the things that people

208
00:11:59,480 --> 00:12:02,800
Speaker 3: are because got there some kind of expansion of the court,

209
00:12:03,240 --> 00:12:05,440
Speaker 3: some kind of ethics code. And then also in the

210
00:12:05,440 --> 00:12:08,760
Speaker 3: wake of Trump versus the United States, a constitutional amendment

211
00:12:08,760 --> 00:12:11,520
Speaker 3: that would lead to a different result, and that would

212
00:12:11,559 --> 00:12:14,920
Speaker 3: provide that presidents can be prosecuted, which again is before

213
00:12:14,960 --> 00:12:17,880
Speaker 3: the division Trump versus the United States, That's been something

214
00:12:17,880 --> 00:12:21,200
Speaker 3: that has been assumed throughout American history. You know, I

215
00:12:21,280 --> 00:12:24,880
Speaker 3: worked on the ran Contra investigation and the focus was

216
00:12:24,960 --> 00:12:29,400
Speaker 3: on whether President Reagan was guilty of criminality, and during

217
00:12:29,400 --> 00:12:32,040
Speaker 3: the course of that investigation, there was really no argument

218
00:12:32,440 --> 00:12:35,520
Speaker 3: that you shouldn't be considering presidential criminality. The same thing

219
00:12:35,559 --> 00:12:38,280
Speaker 3: in water Day. So this is really the Trump versus

220
00:12:38,440 --> 00:12:41,560
Speaker 3: United States decision is something that really represents the departure

221
00:12:42,000 --> 00:12:45,400
Speaker 3: from something that has been assumed to be the case

222
00:12:45,880 --> 00:12:48,400
Speaker 3: really all the way back to the times of the Founders.

223
00:12:48,920 --> 00:12:51,400
Speaker 1: What do you make of the fact that, for example,

224
00:12:51,760 --> 00:12:56,840
Speaker 1: in Trump the United States, and in several cases where

225
00:12:56,880 --> 00:13:01,920
Speaker 1: the conservative majority has ignored president taking away the Chevron

226
00:13:02,000 --> 00:13:05,560
Speaker 1: doctrine of course, eliminating Roe v. Wade. I mean, do

227
00:13:05,640 --> 00:13:08,880
Speaker 1: you think that the conservative justices feel no restraint right

228
00:13:08,920 --> 00:13:11,800
Speaker 1: now that even the Chief Justice, you know, he used

229
00:13:11,800 --> 00:13:15,959
Speaker 1: to talk about justices not being politicians. We get Amy

230
00:13:15,960 --> 00:13:19,400
Speaker 1: Cony Barrett talk about justices they're not politicians in robes,

231
00:13:19,920 --> 00:13:24,040
Speaker 1: but they're making some really radical decisions that paint them

232
00:13:24,080 --> 00:13:26,040
Speaker 1: as politicians and robes.

233
00:13:26,480 --> 00:13:28,360
Speaker 3: Well. One of the things that we're seeing right now

234
00:13:28,640 --> 00:13:34,040
Speaker 3: is that the Supreme Court is breaking with precedent in

235
00:13:34,200 --> 00:13:39,600
Speaker 3: major cases. So the doctrine that the Court normallythologies called

236
00:13:39,679 --> 00:13:43,600
Speaker 3: stuary decisives, which means once you've decided something that's sick.

237
00:13:44,120 --> 00:13:47,440
Speaker 3: What we're seeing in recent years is the Court is

238
00:13:47,480 --> 00:13:51,000
Speaker 3: overturning a lot of physicians that have been well established

239
00:13:51,000 --> 00:13:54,520
Speaker 3: for a long time. So we talked about the Chevron doctrine.

240
00:13:55,040 --> 00:13:57,880
Speaker 3: We've seen that also in the context of affirmative actions.

241
00:13:58,480 --> 00:14:02,200
Speaker 3: We saw that in the context of abortion. And the

242
00:14:02,360 --> 00:14:05,520
Speaker 3: logic of this is for conservative members of the Court

243
00:14:06,080 --> 00:14:09,520
Speaker 3: that they're really originalists. They focused on the original understanding

244
00:14:09,600 --> 00:14:14,199
Speaker 3: Constitution and they're taking the position that if the original

245
00:14:14,280 --> 00:14:18,680
Speaker 3: understanding says something, then you follow the original understanding, that

246
00:14:18,840 --> 00:14:23,320
Speaker 3: not not what the precedent is. So that's why, in

247
00:14:23,520 --> 00:14:28,479
Speaker 3: really important case, that's the case we're seeing long established

248
00:14:28,840 --> 00:14:35,280
Speaker 3: decisions being overturned against Roe, affirmative action, the Chevron doctrine.

249
00:14:35,440 --> 00:14:38,200
Speaker 3: But they're also not all in alignment. So for example,

250
00:14:38,560 --> 00:14:42,600
Speaker 3: the Chief Justice is more respectful of precedent. So in

251
00:14:42,680 --> 00:14:46,560
Speaker 3: the Dobs case, he actually was a concurrence, he would

252
00:14:46,600 --> 00:14:50,440
Speaker 3: not have overturned Row. So there's a split among the

253
00:14:50,640 --> 00:14:54,240
Speaker 3: conservative justices on the Court about the extent to which

254
00:14:54,280 --> 00:14:55,680
Speaker 3: they respect precedent.

255
00:14:55,880 --> 00:14:58,800
Speaker 1: What's your take on originalism, because it seems as if

256
00:14:58,920 --> 00:15:01,240
Speaker 1: you can pick a lot of different things from history

257
00:15:01,240 --> 00:15:02,880
Speaker 1: and it just depends on what you pick.

258
00:15:03,400 --> 00:15:07,280
Speaker 3: Well, I'm an originalist, and I think that it's very

259
00:15:07,320 --> 00:15:10,520
Speaker 3: powerful to say that the Constitution should be understood with

260
00:15:10,600 --> 00:15:13,000
Speaker 3: regard to what the original understanding was. That's what we

261
00:15:13,120 --> 00:15:16,040
Speaker 3: the people adopted. I disagree with the Court in a

262
00:15:16,080 --> 00:15:18,640
Speaker 3: lot of these cases because I don't think they're getting

263
00:15:19,000 --> 00:15:23,040
Speaker 3: the original understanding right. So in Trump versus the United States,

264
00:15:23,040 --> 00:15:26,200
Speaker 3: for example, I think the founders were clear that a

265
00:15:26,280 --> 00:15:30,360
Speaker 3: president could be prosecuted. So Trump versus the United States

266
00:15:30,400 --> 00:15:33,400
Speaker 3: is not an original opinion. Actually, see Justice Robertson his

267
00:15:33,520 --> 00:15:39,240
Speaker 3: opinion says there's really no obvious original understanding answer there is,

268
00:15:39,960 --> 00:15:42,480
Speaker 3: So I think in a lot of these cases you

269
00:15:42,640 --> 00:15:45,480
Speaker 3: get a very different result if you follow the original

270
00:15:45,560 --> 00:15:48,720
Speaker 3: understanding this and in fact got the history right. Because

271
00:15:48,840 --> 00:15:51,480
Speaker 3: I think in case after case, what we're seeing is

272
00:15:51,960 --> 00:15:55,120
Speaker 3: an original court actually is not getting the history right.

273
00:15:55,800 --> 00:16:01,480
Speaker 1: During his term, Biden resisted calls from progressive to seek

274
00:16:01,520 --> 00:16:05,800
Speaker 1: reform to the Supreme Court. Why now with six months

275
00:16:05,880 --> 00:16:06,960
Speaker 1: left in his.

276
00:16:07,160 --> 00:16:10,640
Speaker 3: Term, Well, I think he wants to make a statement

277
00:16:10,920 --> 00:16:14,680
Speaker 3: as his presidency is drawing to a close that he

278
00:16:14,760 --> 00:16:18,520
Speaker 3: thinks the Supreme Court is off the rails in a

279
00:16:18,560 --> 00:16:21,360
Speaker 3: lot of crucial areas. And I think he didn't act

280
00:16:21,400 --> 00:16:25,160
Speaker 3: before now because this is cumulative. You know, what he's

281
00:16:25,200 --> 00:16:28,360
Speaker 3: seeing over time is there are more and more decisions

282
00:16:28,400 --> 00:16:32,040
Speaker 3: in which the Court is departing from the original understanding

283
00:16:32,120 --> 00:16:35,560
Speaker 3: or departing from precedent. And I think Trump versus the

284
00:16:35,600 --> 00:16:37,880
Speaker 3: United States might have been the trigger for him. That

285
00:16:38,640 --> 00:16:41,320
Speaker 3: is a decision where I think he would say that

286
00:16:41,760 --> 00:16:45,120
Speaker 3: the Court has taken a position that's really at odds

287
00:16:45,160 --> 00:16:48,800
Speaker 3: with principles of the rule of law, and some steps

288
00:16:49,000 --> 00:16:51,760
Speaker 3: has to be taken to address that. At the same time,

289
00:16:51,840 --> 00:16:55,560
Speaker 3: I think it's chose a tremendous amount of restraint because

290
00:16:55,640 --> 00:16:57,800
Speaker 3: what the rest of us were pushing for when he

291
00:16:57,880 --> 00:17:01,400
Speaker 3: came into office and have been pushing throughout expanding the

292
00:17:01,480 --> 00:17:04,800
Speaker 3: number of justices, and he hasn't done that. He's gone

293
00:17:04,840 --> 00:17:08,159
Speaker 3: for with something that's I think both more nuanced and

294
00:17:08,200 --> 00:17:11,960
Speaker 3: more respectful of partisan balance. It's really much more nonpartisan

295
00:17:12,240 --> 00:17:15,520
Speaker 3: because it would give to every president to appointments for

296
00:17:15,560 --> 00:17:18,399
Speaker 3: every term. So that's that's not a partisan result, but

297
00:17:18,480 --> 00:17:21,280
Speaker 3: it does reflect the idea that we should move away

298
00:17:21,359 --> 00:17:24,920
Speaker 3: from that kind of thirty years on the court, which

299
00:17:24,960 --> 00:17:27,000
Speaker 3: is what we're seeing now, and move to something that

300
00:17:27,520 --> 00:17:29,800
Speaker 3: is much more less I think with the founders and visions.

301
00:17:30,800 --> 00:17:34,560
Speaker 1: As you've mentioned, none of these proposals are going to

302
00:17:34,560 --> 00:17:39,159
Speaker 1: go through this Congress. And even if Democrats won control

303
00:17:39,240 --> 00:17:42,760
Speaker 1: of Congress and the White House next year, Republicans would

304
00:17:42,800 --> 00:17:45,359
Speaker 1: still be able to fill abuster. So I mean, is

305
00:17:45,400 --> 00:17:49,760
Speaker 1: there anything that can be done about the Supreme Court?

306
00:17:49,800 --> 00:17:51,000
Speaker 1: Anything practical?

307
00:17:51,680 --> 00:17:56,439
Speaker 3: I think statements matter. I think statements matter, and what

308
00:17:56,880 --> 00:18:02,040
Speaker 3: President Biden has done is made statements about term limits.

309
00:18:02,320 --> 00:18:06,160
Speaker 3: He's made a statement about judicial ethics, and he's made

310
00:18:06,160 --> 00:18:09,720
Speaker 3: a statement about the Trump versus the United States decisions.

311
00:18:09,760 --> 00:18:13,639
Speaker 3: And when he does that, it really all just the dialogue.

312
00:18:13,760 --> 00:18:17,040
Speaker 3: It brings issues to the four. So we're talking about

313
00:18:17,119 --> 00:18:19,439
Speaker 3: term limits. The reason why we're talking about term lemits

314
00:18:19,720 --> 00:18:24,719
Speaker 3: is because of what President Biden has done. And I

315
00:18:24,760 --> 00:18:30,680
Speaker 3: think that that the popular dialogue, I think does affect

316
00:18:31,000 --> 00:18:34,240
Speaker 3: the way in which some decisions are decided. So we'll

317
00:18:34,280 --> 00:18:37,720
Speaker 3: see you moving forward if this has any effects. But again,

318
00:18:37,760 --> 00:18:40,560
Speaker 3: I think the idea is that it conveys to the

319
00:18:40,680 --> 00:18:43,920
Speaker 3: Court the idea that they have moved out of alignment

320
00:18:44,040 --> 00:18:47,040
Speaker 3: with you know, what they should be doing, and if

321
00:18:47,040 --> 00:18:51,840
Speaker 3: they're very serious concerns that are widespread about the Court's path.

322
00:18:52,240 --> 00:18:55,040
Speaker 3: So you know, I think it's a long term effect.

323
00:18:55,119 --> 00:18:57,359
Speaker 3: It's not going to lead to new legislation. It's not

324
00:18:57,400 --> 00:19:00,199
Speaker 3: going to lead to a new constitutional amendment. But one

325
00:19:00,200 --> 00:19:03,159
Speaker 3: of the things that Justice Brier would say is that

326
00:19:03,240 --> 00:19:05,040
Speaker 3: the Court should not have to pay attention to the

327
00:19:05,119 --> 00:19:08,000
Speaker 3: temperature of the day. It should pay attention to the

328
00:19:08,000 --> 00:19:11,320
Speaker 3: climate at the time. And what President and Biden is

329
00:19:11,359 --> 00:19:13,159
Speaker 3: trying to do is to make a statement about what

330
00:19:13,200 --> 00:19:14,439
Speaker 3: the climate of the times is.

331
00:19:14,920 --> 00:19:18,119
Speaker 1: Republicans have been playing the long game, the very long

332
00:19:18,200 --> 00:19:22,680
Speaker 1: game as far as the Supreme Court, which has resulted

333
00:19:23,000 --> 00:19:27,240
Speaker 1: in this conservative super majority on the Court, and it

334
00:19:27,280 --> 00:19:30,280
Speaker 1: seems the Court has always been more important to Republicans

335
00:19:30,480 --> 00:19:35,480
Speaker 1: in presidential elections. Are these controversial decisions a wake up

336
00:19:35,560 --> 00:19:38,800
Speaker 1: call for Democrats? Will the Court now be an issue

337
00:19:38,840 --> 00:19:41,879
Speaker 1: for Democrats in the presidential election.

338
00:19:42,560 --> 00:19:44,240
Speaker 3: Well, I think it will be a point in the

339
00:19:44,280 --> 00:19:48,560
Speaker 3: presidential election. I think what President Biden has done is

340
00:19:48,600 --> 00:19:51,919
Speaker 3: to make this issue really front the center. So for

341
00:19:52,040 --> 00:19:57,560
Speaker 3: many years, Republican presidential candidates I've argued, if you elect me,

342
00:19:58,320 --> 00:20:01,560
Speaker 3: I will appoint justices who will overturn Row, and that

343
00:20:01,720 --> 00:20:06,439
Speaker 3: was always the biggest issue. Democratic presidential candidates try to

344
00:20:06,680 --> 00:20:09,679
Speaker 3: argue that they would shape the Supreme Court, but it

345
00:20:09,800 --> 00:20:13,240
Speaker 3: never really got any political win. So I think that

346
00:20:13,520 --> 00:20:16,000
Speaker 3: what we're seeing now is first of all, that there's

347
00:20:16,000 --> 00:20:19,359
Speaker 3: a real popular movement, and I think it could be

348
00:20:19,400 --> 00:20:22,359
Speaker 3: a factor in the election for the first time. I

349
00:20:22,400 --> 00:20:25,000
Speaker 3: think it could be a factor that would cut in

350
00:20:25,400 --> 00:20:30,160
Speaker 3: favor of Vice President Harris. She in particular, she's making

351
00:20:30,200 --> 00:20:34,119
Speaker 3: an abortion a front and center issue, and I think that,

352
00:20:34,520 --> 00:20:37,200
Speaker 3: you know, that's something that Democrats have not been able

353
00:20:37,240 --> 00:20:40,320
Speaker 3: to do successfully in the past. So this is the

354
00:20:40,400 --> 00:20:44,440
Speaker 3: first time, I think in many years in which concerned

355
00:20:44,440 --> 00:20:46,600
Speaker 3: about the Court actually would cut in favor of the

356
00:20:46,600 --> 00:20:50,440
Speaker 3: Democratic presidential candidates other than the Republican candidates.

357
00:20:50,960 --> 00:20:55,040
Speaker 1: And Annenberg Report on Public Confidence in the Courts finds, quote,

358
00:20:55,040 --> 00:20:58,480
Speaker 1: the withering of public confidence in the courts, and every

359
00:20:58,480 --> 00:21:03,000
Speaker 1: pole you see shows that public confidence in the court,

360
00:21:03,040 --> 00:21:05,520
Speaker 1: whatever the numbers are, they're very low, and they're always

361
00:21:05,640 --> 00:21:09,160
Speaker 1: trending lower. Has there been another time in our history

362
00:21:09,200 --> 00:21:12,960
Speaker 1: where there's been this crisis of confidence in the courts

363
00:21:12,960 --> 00:21:15,360
Speaker 1: and in the Supreme Court in particular.

364
00:21:16,000 --> 00:21:19,000
Speaker 3: The most prominent time in which there's been a crisis

365
00:21:19,040 --> 00:21:23,000
Speaker 3: of confidence in the Supreme Court was during President Franklin

366
00:21:23,040 --> 00:21:29,320
Speaker 3: Roosevelt's administration, and the court struck down many crucial pieces

367
00:21:29,320 --> 00:21:34,800
Speaker 3: of newbial legislation. So there was tremendous, tremendous concern about

368
00:21:34,800 --> 00:21:38,080
Speaker 3: the court. Now, President Franklin Roosevelt pushed it too far,

369
00:21:38,560 --> 00:21:41,399
Speaker 3: He tried to pack the court, and that generated a

370
00:21:41,440 --> 00:21:46,120
Speaker 3: lot of opposition. But that's the period in which most

371
00:21:46,160 --> 00:21:50,600
Speaker 3: recently we've seen incredible concern about the Supreme Court, and

372
00:21:50,680 --> 00:21:52,520
Speaker 3: I think a sense that it was out of step

373
00:21:52,720 --> 00:21:57,000
Speaker 3: with popular will. This is a time in which there

374
00:21:57,080 --> 00:21:59,280
Speaker 3: is a concern about the Court in a way that

375
00:21:59,320 --> 00:22:03,199
Speaker 3: we have not seen for almost one hundred years. So

376
00:22:04,040 --> 00:22:07,960
Speaker 3: the significance of President Biden's proposals is that it's part

377
00:22:08,000 --> 00:22:10,960
Speaker 3: of a focus on the court, which again I think

378
00:22:11,160 --> 00:22:14,440
Speaker 3: is new within the lifetime of virtually every American.

379
00:22:14,640 --> 00:22:17,240
Speaker 1: Dean, thanks so much for your insights and giving us

380
00:22:17,320 --> 00:22:21,480
Speaker 1: the historical perspective as well. That's Dean William Traynor of

381
00:22:21,520 --> 00:22:24,600
Speaker 1: Georgetown Law. Coming up next on the Bloomberg Law Show.

382
00:22:25,080 --> 00:22:28,840
Speaker 1: Nike Fire is a warning shot to sneaker artists. I'm

383
00:22:28,920 --> 00:22:33,040
Speaker 1: June Grosso and you're listening to Bloomberg. A sneaker artist

384
00:22:33,119 --> 00:22:38,360
Speaker 1: known as the Shoe Surgeon built a customization empire, collaborating

385
00:22:38,400 --> 00:22:42,000
Speaker 1: with global brands like Nike, Gucci, and Adidas, and a

386
00:22:42,080 --> 00:22:46,399
Speaker 1: cult like social media following. Justin Bieber Drake and O'Dell

387
00:22:46,480 --> 00:22:50,480
Speaker 1: Beckham Junior all wore his customized shoes and he's even

388
00:22:50,600 --> 00:22:53,880
Speaker 1: started an academy where students pay up to five thousand

389
00:22:53,960 --> 00:22:58,359
Speaker 1: dollars to learn the craft of shoe personalization. But not

390
00:22:58,520 --> 00:23:03,199
Speaker 1: so fast, Nike. He is suing Dominic Chambron for trademark

391
00:23:03,280 --> 00:23:08,000
Speaker 1: infringement and counterfeiting and asking for sixty million dollars in damages.

392
00:23:08,440 --> 00:23:11,040
Speaker 1: Joining me is Zach Kertz of Sneaker and Street Where

393
00:23:11,200 --> 00:23:14,639
Speaker 1: Legal Services. So Zach, I'm going to confess right up

394
00:23:14,680 --> 00:23:17,600
Speaker 1: front that I don't know much about the sneaker world.

395
00:23:17,880 --> 00:23:19,760
Speaker 1: Who is the shoe Surgeon.

396
00:23:20,240 --> 00:23:23,080
Speaker 4: The shoe surgeon is the guy in the industry of

397
00:23:23,200 --> 00:23:27,080
Speaker 4: sneakers and customization of sneakers. His name is Don Chambron,

398
00:23:27,600 --> 00:23:30,480
Speaker 4: and he started a sort of as a bespoke cobbler,

399
00:23:30,560 --> 00:23:33,440
Speaker 4: just doing one of one customs, and he still continues

400
00:23:33,480 --> 00:23:35,760
Speaker 4: to do that. It's just he's got a bigger clientele now.

401
00:23:35,840 --> 00:23:38,920
Speaker 4: He was actually in entourage, I believe he's also done

402
00:23:38,960 --> 00:23:43,960
Speaker 4: shoes for Lebron, James Drake, justin Bieber, Obj, I mean,

403
00:23:44,040 --> 00:23:46,240
Speaker 4: you name it. All the celebrities really want to work

404
00:23:46,240 --> 00:23:48,600
Speaker 4: with him now. So if you're familiar with jewelry and

405
00:23:48,640 --> 00:23:51,359
Speaker 4: watches and people say Jacob the Jeweler, he's sort of

406
00:23:51,400 --> 00:23:53,919
Speaker 4: that version in sneakers. He's the guy to go to

407
00:23:54,000 --> 00:23:57,080
Speaker 4: in customs and really leads in sort of creativity and

408
00:23:57,119 --> 00:24:00,800
Speaker 4: custom footwear and custom apparel. He's even done for Logan

409
00:24:00,920 --> 00:24:02,800
Speaker 4: Paul when he fights in the ring. He does all

410
00:24:02,920 --> 00:24:05,640
Speaker 4: his equipment and his boxing shoes as well.

411
00:24:05,840 --> 00:24:10,639
Speaker 1: Nike hired him several times between twenty seventeen to twenty

412
00:24:10,680 --> 00:24:14,200
Speaker 1: twenty three to customize shoes, and once commissioned him to

413
00:24:14,200 --> 00:24:17,160
Speaker 1: create a pair of sneakers for Lebron James encrusted with

414
00:24:17,240 --> 00:24:20,399
Speaker 1: twenty four carrot gold and one hundred thousand dollars worth

415
00:24:20,400 --> 00:24:24,199
Speaker 1: of diamonds. Those are some sneakers, But now Nike is

416
00:24:24,240 --> 00:24:26,960
Speaker 1: suing him. Why is Nike suing him?

417
00:24:27,400 --> 00:24:29,800
Speaker 4: Essentially, they're saying those collaps as you mentioned, there was

418
00:24:29,800 --> 00:24:32,639
Speaker 4: one in twenty seventeen, twenty eighteen for the Lebrons that

419
00:24:32,720 --> 00:24:35,160
Speaker 4: you mentioned, and then another time in twenty twenty three

420
00:24:35,359 --> 00:24:37,680
Speaker 4: where he did another pair of shoes for Lebron James

421
00:24:37,680 --> 00:24:40,520
Speaker 4: for being the all time meeting scorer, passing Kareem. So

422
00:24:40,880 --> 00:24:42,800
Speaker 4: he's been on Nike's good side and they've done a

423
00:24:42,800 --> 00:24:45,119
Speaker 4: whole bunch of deals with him. But for whatever reason,

424
00:24:45,520 --> 00:24:48,520
Speaker 4: they decided that what he's been doing now, such as

425
00:24:48,640 --> 00:24:51,240
Speaker 4: you know, creating these customs and opening up his own

426
00:24:51,320 --> 00:24:54,840
Speaker 4: surgeon academy where he's teaching others to customize sneakers, they

427
00:24:54,880 --> 00:24:56,680
Speaker 4: thought that that was a little too far, and they're

428
00:24:56,720 --> 00:24:59,879
Speaker 4: claiming that it was without their approval and that he should.

429
00:24:59,600 --> 00:25:03,480
Speaker 1: Have known that customizing sneakers. Is there any problem with

430
00:25:04,119 --> 00:25:07,360
Speaker 1: intellectual property rights if you customize a brand sneaker?

431
00:25:07,760 --> 00:25:09,159
Speaker 4: I guess there are people on both sides of the

432
00:25:09,160 --> 00:25:11,520
Speaker 4: coin there. I believe that the answer is no. I

433
00:25:11,560 --> 00:25:15,199
Speaker 4: think that the first sale doctrine essentially allows you to

434
00:25:15,840 --> 00:25:19,840
Speaker 4: you know, resell or customize even another brand's trademarks. Legally,

435
00:25:20,040 --> 00:25:22,760
Speaker 4: there are a few exceptions to that, specifically, you know,

436
00:25:22,800 --> 00:25:25,680
Speaker 4: if it's materially altered, and that's one of the areas

437
00:25:25,680 --> 00:25:28,280
Speaker 4: that these custom sneaker cases come down to. If this

438
00:25:28,520 --> 00:25:31,440
Speaker 4: was materially altered enough, and you know, there's case law

439
00:25:31,480 --> 00:25:33,679
Speaker 4: on that, and it really doesn't require too much to

440
00:25:34,040 --> 00:25:36,760
Speaker 4: be materially altered. But the way I see it is

441
00:25:37,000 --> 00:25:39,680
Speaker 4: this is really just a form of expression of creative expression.

442
00:25:39,720 --> 00:25:41,520
Speaker 4: And if I purchase a pair of shoes and I

443
00:25:41,560 --> 00:25:43,919
Speaker 4: want to color on them, and if someone does a

444
00:25:43,920 --> 00:25:46,000
Speaker 4: better job coloring on them than me, and I pay

445
00:25:46,040 --> 00:25:48,159
Speaker 4: them for that service, there was really nothing wrong. But

446
00:25:48,200 --> 00:25:50,840
Speaker 4: there should be no trademark confusion. I know what I'm doing,

447
00:25:50,880 --> 00:25:52,000
Speaker 4: I know who I'm doing it with.

448
00:25:52,400 --> 00:25:55,520
Speaker 1: But is Nike saying more than that? Is Nike saying

449
00:25:55,560 --> 00:25:58,840
Speaker 1: that he's actually created counterfeit Nike sneakers.

450
00:25:59,200 --> 00:26:01,880
Speaker 4: They are just saying one that there are these infringing

451
00:26:02,000 --> 00:26:05,240
Speaker 4: new shoes, and they're claiming that those are customized shoes,

452
00:26:05,440 --> 00:26:09,919
Speaker 4: meaning someone purchased a valid, authentic Nike shoe and they're using,

453
00:26:10,240 --> 00:26:12,520
Speaker 4: you know, the base of an authentic Nike shoe and

454
00:26:12,560 --> 00:26:14,960
Speaker 4: then customizing the rest of it and making their own. Second,

455
00:26:15,040 --> 00:26:17,880
Speaker 4: what Nike saying is, these are counterfit Nike shoes. It's

456
00:26:17,880 --> 00:26:19,720
Speaker 4: a Nike shoe entirely from scratch.

457
00:26:20,160 --> 00:26:22,600
Speaker 1: Let's take those one at a time. Let's take the counterfeit.

458
00:26:23,080 --> 00:26:25,280
Speaker 1: That's clearly illegal, right.

459
00:26:25,400 --> 00:26:27,440
Speaker 4: Yeah, to me, it is. And that's where I think

460
00:26:27,480 --> 00:26:29,400
Speaker 4: this case lies because I know a lot of people

461
00:26:29,440 --> 00:26:32,000
Speaker 4: in the sneaker industry, and I even have customs myself,

462
00:26:32,240 --> 00:26:34,120
Speaker 4: and you know, most of the time when you're doing that,

463
00:26:34,280 --> 00:26:36,119
Speaker 4: you're starting with a base. You know, you're starting with

464
00:26:36,160 --> 00:26:38,720
Speaker 4: an authentic Nike bottom or an Adidas bottom. You have

465
00:26:38,800 --> 00:26:41,200
Speaker 4: to get that mold at that bottom because those most

466
00:26:41,200 --> 00:26:44,119
Speaker 4: cost a lot. It's hard to just buy authentic you know,

467
00:26:44,200 --> 00:26:46,639
Speaker 4: molds and such from China, and to your point, that

468
00:26:46,680 --> 00:26:49,120
Speaker 4: would be counterfeiting. But I don't think that's what's going

469
00:26:49,160 --> 00:26:51,320
Speaker 4: on here. I think, you know, these are still authentic

470
00:26:51,600 --> 00:26:54,439
Speaker 4: Nike mid soles and soles that they're using, and they

471
00:26:54,520 --> 00:26:56,879
Speaker 4: might change up some other things there. That's turned it

472
00:26:56,920 --> 00:26:59,840
Speaker 4: into a custom, which is at first second we talked about,

473
00:27:00,080 --> 00:27:00,640
Speaker 4: I mean, do you have.

474
00:27:00,600 --> 00:27:02,840
Speaker 1: A question in your mind about whether they're accusing him

475
00:27:02,880 --> 00:27:05,920
Speaker 1: of also making counterfeit Nikes from scratch.

476
00:27:06,440 --> 00:27:08,879
Speaker 4: They definitely are. I'm saying that, you know, based on

477
00:27:08,920 --> 00:27:11,080
Speaker 4: my knowledge in the steaker industry, and just I don't

478
00:27:11,080 --> 00:27:13,199
Speaker 4: think that that's what's going on here. But Nike is

479
00:27:13,240 --> 00:27:16,760
Speaker 4: claiming that the second aspect that counterfeit Nike shoes entirely

480
00:27:16,760 --> 00:27:18,920
Speaker 4: from scratch, according to the complaint, is.

481
00:27:18,960 --> 00:27:23,280
Speaker 1: Nike saying that he needed the company's permission, that they've

482
00:27:23,280 --> 00:27:26,399
Speaker 1: partnered before, and that should have put him on notice

483
00:27:26,720 --> 00:27:28,440
Speaker 1: that he needed Nike's permission.

484
00:27:29,000 --> 00:27:30,960
Speaker 4: You're right, there was a part in the complaint that

485
00:27:31,080 --> 00:27:34,160
Speaker 4: discussed exactly that, the fact that the previous agreements sort

486
00:27:34,200 --> 00:27:37,280
Speaker 4: of showed him the way to work to Nike, and

487
00:27:37,359 --> 00:27:39,439
Speaker 4: that he should have known that these other ones are

488
00:27:39,480 --> 00:27:41,840
Speaker 4: outside the limit. However, you know, the way I see

489
00:27:41,880 --> 00:27:43,959
Speaker 4: that is they talk to the complaint about how they

490
00:27:43,960 --> 00:27:46,320
Speaker 4: allowed these one on one customs and these smaller kinds

491
00:27:46,320 --> 00:27:48,399
Speaker 4: of services and stuff as well, and I sort of

492
00:27:48,440 --> 00:27:50,679
Speaker 4: see that as the same kind of thing here. You know,

493
00:27:50,720 --> 00:27:53,280
Speaker 4: if you're allowing those and then you're working with Nike

494
00:27:53,680 --> 00:27:56,160
Speaker 4: after that, then you know, there's sort of the same thing.

495
00:27:56,160 --> 00:27:58,520
Speaker 4: If you're just giving it to the same person. You know,

496
00:27:58,720 --> 00:28:00,840
Speaker 4: the line can be blurned, like to see both sides.

497
00:28:00,880 --> 00:28:04,000
Speaker 4: But yes, Nike's definitely alleging that the previous agreements, he

498
00:28:04,000 --> 00:28:05,680
Speaker 4: should have known that he needed making's permission.

499
00:28:06,240 --> 00:28:10,879
Speaker 1: The first sale doctrine. Has that ever been tested with

500
00:28:11,000 --> 00:28:12,320
Speaker 1: sneakers in court?

501
00:28:12,680 --> 00:28:15,040
Speaker 4: Yeah, there actually are a couple of recent cases. There's

502
00:28:15,440 --> 00:28:19,240
Speaker 4: a case where Bans to Mischief, which is a Brooklyn

503
00:28:19,520 --> 00:28:23,240
Speaker 4: art based collective that also creates sneakers and other products,

504
00:28:23,280 --> 00:28:25,440
Speaker 4: and they sort of just make fun of big businesses

505
00:28:25,480 --> 00:28:27,920
Speaker 4: and do a lot of really good First Amendment kind

506
00:28:27,960 --> 00:28:30,760
Speaker 4: of free speech and parody kind of stuff as well.

507
00:28:30,960 --> 00:28:33,280
Speaker 4: And in that case, they made a shoe that looked

508
00:28:33,359 --> 00:28:36,359
Speaker 4: very similar to Van's old school you know, famous black

509
00:28:36,359 --> 00:28:39,440
Speaker 4: and white skates shoe, except it was distorted. It was

510
00:28:39,480 --> 00:28:41,920
Speaker 4: called the Wavy Baby, and it went up and down

511
00:28:42,000 --> 00:28:44,920
Speaker 4: and it was really something comical, and it even had

512
00:28:44,920 --> 00:28:46,840
Speaker 4: disclaimers on the bottom of the shoe that says, you know,

513
00:28:46,960 --> 00:28:49,080
Speaker 4: don't walk in this, you'll get hurt. And you know,

514
00:28:49,120 --> 00:28:51,160
Speaker 4: they thought that they would have been protected by the

515
00:28:51,200 --> 00:28:53,760
Speaker 4: First Amendment or the first sale doctrine, and they raised

516
00:28:53,760 --> 00:28:56,400
Speaker 4: both those defenses in that case, and ultimately they ended

517
00:28:56,480 --> 00:28:58,960
Speaker 4: up losing, and they're actually in appeals right now. I

518
00:28:59,040 --> 00:29:01,720
Speaker 4: believe you for the peel sided advance as well for

519
00:29:01,840 --> 00:29:03,800
Speaker 4: the first sale doctrine. There's a bunch of other ones

520
00:29:03,840 --> 00:29:06,280
Speaker 4: that raised the first sale doctrine recently in like counterfeiting

521
00:29:06,320 --> 00:29:08,880
Speaker 4: kind of cases. I know John Geiger, and there's another

522
00:29:08,920 --> 00:29:12,120
Speaker 4: case called Nike versus Customs by a Lean, and that

523
00:29:12,160 --> 00:29:15,120
Speaker 4: would be more applicable here, I think because they toured

524
00:29:15,200 --> 00:29:17,840
Speaker 4: did the same thing. They used Nike shoes and they

525
00:29:17,840 --> 00:29:20,600
Speaker 4: painted butterflies on them and did their own custom art

526
00:29:20,600 --> 00:29:23,440
Speaker 4: and they sold them. However, in that complaint that there

527
00:29:23,440 --> 00:29:26,880
Speaker 4: are documents and evidence that these people were purchasing fake

528
00:29:27,000 --> 00:29:29,920
Speaker 4: Nike shoes and not Nike shoes. A similar first sale

529
00:29:29,920 --> 00:29:32,480
Speaker 4: defense was raised in that one, and you know that

530
00:29:32,520 --> 00:29:34,360
Speaker 4: one ended up settling, so we didn't really get any

531
00:29:34,360 --> 00:29:37,000
Speaker 4: presages on it. But they had a similar defense and

532
00:29:37,040 --> 00:29:40,160
Speaker 4: they did customs, except with that one it was unauthentic

533
00:29:40,480 --> 00:29:42,240
Speaker 4: Nikes that they were allegedly using.

534
00:29:42,480 --> 00:29:45,840
Speaker 1: What about his you know this academy where he's teaching people,

535
00:29:46,040 --> 00:29:47,280
Speaker 1: what is he actually teaching them there?

536
00:29:47,320 --> 00:29:49,360
Speaker 4: Do you know he does a bunch of academies. He

537
00:29:49,400 --> 00:29:52,440
Speaker 4: has won in LA and one in New York, and

538
00:29:52,680 --> 00:29:55,840
Speaker 4: there's also even online classes, and essentially he's really just

539
00:29:55,880 --> 00:29:58,680
Speaker 4: teaching the people how to be customizes themselves, how to

540
00:29:58,720 --> 00:30:01,520
Speaker 4: make a shoe. To make a shoe, you got to

541
00:30:01,560 --> 00:30:05,000
Speaker 4: do dcon and recon, so essentially they're you know, taking

542
00:30:05,040 --> 00:30:08,280
Speaker 4: apart shoes and building up new shoes. And Nike in

543
00:30:08,320 --> 00:30:10,680
Speaker 4: the complaint was a legend that this was an illicit

544
00:30:10,760 --> 00:30:13,959
Speaker 4: empire of infringement. He was teaching people to you know,

545
00:30:14,000 --> 00:30:17,400
Speaker 4: infringe on Nike trademarks. When I think that's very craftly

546
00:30:17,480 --> 00:30:20,400
Speaker 4: worded by their lawyers. Essentially, you know, there are all

547
00:30:20,440 --> 00:30:25,240
Speaker 4: these kind of sneaker customization shops and sneaker education classes

548
00:30:25,240 --> 00:30:27,480
Speaker 4: out there in the world. That's essentially what he's doing.

549
00:30:27,480 --> 00:30:30,120
Speaker 4: He's just teaching you how to build up a shoe

550
00:30:30,240 --> 00:30:32,720
Speaker 4: and rebuild a shoe. It's just sometimes he's usally a

551
00:30:32,800 --> 00:30:34,680
Speaker 4: Nike shoe as an example, you.

552
00:30:34,640 --> 00:30:37,680
Speaker 1: Know, looking at this from outside the sneaker world, if

553
00:30:37,680 --> 00:30:41,240
Speaker 1: he's showing people how to take a Nike shoe apart

554
00:30:41,280 --> 00:30:45,040
Speaker 1: and then make another shoe from the Nike base, that

555
00:30:45,120 --> 00:30:46,840
Speaker 1: seems to me like it's infringement.

556
00:30:47,640 --> 00:30:49,840
Speaker 4: Not necessarily, there are a lot of factors that go

557
00:30:49,920 --> 00:30:53,480
Speaker 4: into infringement, and I mean actual confusion is one of

558
00:30:53,480 --> 00:30:56,760
Speaker 4: the big ones. And you know, if you're purchasing a

559
00:30:56,760 --> 00:30:59,040
Speaker 4: class from him for whatever the price may be, from

560
00:30:59,120 --> 00:31:02,120
Speaker 4: five hundred bucks to five thousand dollars, and you're building

561
00:31:02,120 --> 00:31:04,400
Speaker 4: a shoe yourself, you're not going to be confused.

562
00:31:04,440 --> 00:31:05,280
Speaker 3: You know what you're.

563
00:31:05,120 --> 00:31:07,320
Speaker 4: Doing, and you know you know you're building your own

564
00:31:07,360 --> 00:31:09,400
Speaker 4: Nike shoe and most of the time you're keeping that

565
00:31:09,480 --> 00:31:12,000
Speaker 4: for personal you know, you're not reselling that or anything.

566
00:31:12,360 --> 00:31:15,960
Speaker 4: So I think there's arguments to be made about actual confusion.

567
00:31:16,080 --> 00:31:18,800
Speaker 4: And he's just so big in the industry that that

568
00:31:18,880 --> 00:31:21,320
Speaker 4: people know who he is and on his shoes and

569
00:31:21,400 --> 00:31:24,560
Speaker 4: in his class it has his trademark logos and you

570
00:31:24,600 --> 00:31:26,680
Speaker 4: know everything that he uses as well. So I think

571
00:31:26,720 --> 00:31:29,360
Speaker 4: those are also other factors that help you avoid any

572
00:31:29,400 --> 00:31:31,680
Speaker 4: type of confusion. And that's really one of the most

573
00:31:31,680 --> 00:31:35,160
Speaker 4: important things here. Trademark infringement and trademarks in general just

574
00:31:35,440 --> 00:31:37,800
Speaker 4: meant to be source indicators. And that's sort of what

575
00:31:37,920 --> 00:31:40,040
Speaker 4: Nike's saying here, this thing that you know, when he

576
00:31:40,080 --> 00:31:42,400
Speaker 4: makes his shoes, people are confused. If it's a Nike,

577
00:31:42,440 --> 00:31:44,760
Speaker 4: you're a surgeon and you know, his name is just

578
00:31:44,800 --> 00:31:47,080
Speaker 4: so big in the industry now, so if you see

579
00:31:47,120 --> 00:31:49,400
Speaker 4: his logo on the shoe, then you're going to essentially

580
00:31:49,400 --> 00:31:52,800
Speaker 4: know it's a custom shoe, which is different than you know,

581
00:31:52,800 --> 00:31:55,480
Speaker 4: a regular Nike shoe, and it's a form of expression.

582
00:31:55,840 --> 00:31:59,480
Speaker 1: But the court that heard this the one case didn't agree.

583
00:31:59,240 --> 00:32:01,520
Speaker 4: With that exactly. I mean that case was a little

584
00:32:01,560 --> 00:32:04,120
Speaker 4: different in such, but yeah, I mean people equate this

585
00:32:04,360 --> 00:32:06,000
Speaker 4: to cars. You know, if I buy a Honda and

586
00:32:06,040 --> 00:32:08,240
Speaker 4: I put a mod kid on it, HANDA going to

587
00:32:08,240 --> 00:32:10,360
Speaker 4: come after me and say, hey, you can't do that.

588
00:32:10,480 --> 00:32:12,960
Speaker 4: And there are some companies that actually do go after

589
00:32:13,040 --> 00:32:16,560
Speaker 4: people for similar kind of things. Famous is a Ferrari case.

590
00:32:17,160 --> 00:32:20,000
Speaker 4: It didn't get litigated, but there's a DJ named dead

591
00:32:20,040 --> 00:32:23,880
Speaker 4: Now and he put a rainbow kind of graphic effect

592
00:32:23,920 --> 00:32:27,120
Speaker 4: on one of his Ferraris and he's used it everywhere

593
00:32:27,160 --> 00:32:28,640
Speaker 4: he went, you know, when he went to parties, and

594
00:32:28,800 --> 00:32:31,720
Speaker 4: it got named the Perrari just because there was a

595
00:32:31,800 --> 00:32:34,480
Speaker 4: cat on the side of it. And Ferrari didn't like that,

596
00:32:34,680 --> 00:32:37,560
Speaker 4: so they sent him a season assists and they essentially said,

597
00:32:37,720 --> 00:32:40,200
Speaker 4: you know, don't use it anymore, take it apart, or

598
00:32:40,400 --> 00:32:42,240
Speaker 4: we're going to come after you, and he listened to him.

599
00:32:42,240 --> 00:32:44,720
Speaker 4: He ended up stripping all the details and selling the car.

600
00:32:44,880 --> 00:32:47,120
Speaker 4: And there are other cases that actually have been litigated

601
00:32:47,120 --> 00:32:50,000
Speaker 4: that's sort of similar. So it's just crazy to hear,

602
00:32:50,200 --> 00:32:52,760
Speaker 4: you know, the kind of reefs or control that these

603
00:32:52,760 --> 00:32:55,040
Speaker 4: companies have on the products after market.

604
00:32:55,320 --> 00:32:58,959
Speaker 1: And the sneaker surgeon is putting his own trademark on

605
00:32:59,000 --> 00:32:59,720
Speaker 1: a Nike.

606
00:32:59,600 --> 00:33:02,000
Speaker 4: Shoe yet most of the time of years. But to

607
00:33:02,040 --> 00:33:05,480
Speaker 4: your point, that sort of helps eliminate confusion. But by

608
00:33:05,480 --> 00:33:08,040
Speaker 4: people seeing that logo and saying, oh, I know who's

609
00:33:08,480 --> 00:33:10,760
Speaker 4: the shoe, sursion shoe, which means it's going to be

610
00:33:10,960 --> 00:33:13,960
Speaker 4: a custom shoe. He doesn't just do Nikes, you know,

611
00:33:14,000 --> 00:33:16,920
Speaker 4: he does other brands as well, Adida, New Balance, you know,

612
00:33:17,000 --> 00:33:19,000
Speaker 4: you name it, he does it. And to me, again,

613
00:33:19,040 --> 00:33:21,760
Speaker 4: it's a form of expression. I have many custom shoes

614
00:33:21,880 --> 00:33:24,040
Speaker 4: and I've really just reached out with guys and said, hey,

615
00:33:24,080 --> 00:33:26,400
Speaker 4: can you create this for me? And it's sitting on

616
00:33:26,480 --> 00:33:27,680
Speaker 4: my desk right here, right.

617
00:33:27,520 --> 00:33:30,720
Speaker 1: Now, sneakers on the desk. It really isn't my world.

618
00:33:30,840 --> 00:33:32,920
Speaker 1: So do you see this suit going to trial or

619
00:33:32,920 --> 00:33:33,920
Speaker 1: do you see a settlement?

620
00:33:34,440 --> 00:33:37,600
Speaker 4: You know, sneaker customization is something that's there and it's

621
00:33:37,640 --> 00:33:41,080
Speaker 4: not going away. Customization in general is so big in

622
00:33:41,080 --> 00:33:44,200
Speaker 4: every industry. Everyone wants to, you know, show off themselves

623
00:33:44,280 --> 00:33:47,120
Speaker 4: in the form of expression, whether it's athletes on the

624
00:33:47,160 --> 00:33:49,280
Speaker 4: field or the court or wherever it may be, or

625
00:33:49,520 --> 00:33:51,560
Speaker 4: you know, just people like you and I. So I

626
00:33:51,600 --> 00:33:54,000
Speaker 4: think the customization thing is never going away, and I

627
00:33:54,000 --> 00:33:56,600
Speaker 4: think that Nike has embraced it. You know, they've been

628
00:33:56,640 --> 00:33:59,480
Speaker 4: doing deals with customizers such as the Shoe Surgeon. So

629
00:34:00,200 --> 00:34:03,080
Speaker 4: crazy to see that end. I don't think, you know,

630
00:34:03,160 --> 00:34:05,440
Speaker 4: that's going to happen. I think Nike in their statement

631
00:34:05,440 --> 00:34:07,520
Speaker 4: and even in the complaint, they sort of carved out

632
00:34:07,520 --> 00:34:11,080
Speaker 4: a lane for these customizations to be done. And that's

633
00:34:11,080 --> 00:34:13,160
Speaker 4: sort of what this is about. You know how big

634
00:34:13,200 --> 00:34:14,640
Speaker 4: the shoe surgeons lane is going to be.

635
00:34:15,040 --> 00:34:17,040
Speaker 1: So I mean, what lane do you think they've carved out?

636
00:34:17,200 --> 00:34:21,040
Speaker 4: So they talked about allowing specific, one of one customizations

637
00:34:21,080 --> 00:34:24,160
Speaker 4: for you know, Nike sponsored athletes, and I think that's

638
00:34:24,200 --> 00:34:27,280
Speaker 4: important because these athletes probably have clauses in their contract

639
00:34:27,320 --> 00:34:28,960
Speaker 4: that say you can't do this, or you can't do that,

640
00:34:29,080 --> 00:34:30,920
Speaker 4: or you got to come to Nike with permission. And

641
00:34:31,400 --> 00:34:33,439
Speaker 4: if they're doing a custom whether it's you know, one

642
00:34:33,440 --> 00:34:35,759
Speaker 4: shoe for themselves, or they're going to wear during the game,

643
00:34:35,880 --> 00:34:38,400
Speaker 4: or just shoes they're going to wear around town. Nike's

644
00:34:38,440 --> 00:34:40,640
Speaker 4: going to be aware of that, and you know, that's

645
00:34:40,640 --> 00:34:42,680
Speaker 4: really what Nike wants here. They want to know what's

646
00:34:42,719 --> 00:34:44,759
Speaker 4: going on so they're not left out and they check

647
00:34:44,840 --> 00:34:48,239
Speaker 4: everything to their exact specifications like they claim. So I

648
00:34:48,280 --> 00:34:51,560
Speaker 4: think those kind of collaborations and customers will be allowed.

649
00:34:51,719 --> 00:34:54,000
Speaker 4: It also mentioned in the complaint that they're happy with

650
00:34:54,200 --> 00:34:56,319
Speaker 4: the shoe surgeon when he was just doing small time

651
00:34:56,360 --> 00:34:58,920
Speaker 4: work as a you know, best spoke cobbler, one of

652
00:34:59,000 --> 00:35:00,799
Speaker 4: ones and such. So I think think, you know, by

653
00:35:00,800 --> 00:35:02,640
Speaker 4: putting out that in the complaint, and it sort of

654
00:35:02,640 --> 00:35:03,959
Speaker 4: also opens up the lane as well.

655
00:35:04,239 --> 00:35:07,680
Speaker 1: I've learned a lot about the world of custom sneakers.

656
00:35:07,960 --> 00:35:11,160
Speaker 1: Thanks so much, Zach. That's Zach Kurtz of Sneaker and

657
00:35:11,239 --> 00:35:14,560
Speaker 1: Streetwear Legal Services. And that's it for this edition of

658
00:35:14,560 --> 00:35:17,640
Speaker 1: the Bloomberg Law Podcast. Remember you can always get the

659
00:35:17,680 --> 00:35:20,600
Speaker 1: latest legal news by subscribing and listening to the show

660
00:35:20,760 --> 00:35:24,680
Speaker 1: on Apple Podcasts, Spotify, and at Bloomberg dot com slash

661
00:35:24,800 --> 00:35:29,279
Speaker 1: podcast Slash Law. I'm June Grosso and this is Bloomberg,