1
00:00:03,200 --> 00:00:13,560
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

2
00:00:16,160 --> 00:00:19,759
Speaker 2: Hundreds of demonstrators took to the streets of Missoula, Montana,

3
00:00:19,840 --> 00:00:24,520
Speaker 2: last week in support of the state's first openly transgender lawmaker,

4
00:00:24,760 --> 00:00:29,320
Speaker 2: Democratic state Representative, Zoe Zephyr. They did so after Zephyr

5
00:00:29,440 --> 00:00:32,320
Speaker 2: was banned from the floor of the state House because

6
00:00:32,479 --> 00:00:36,159
Speaker 2: in urging her Republican colleagues to oppose a bill banning

7
00:00:36,240 --> 00:00:41,680
Speaker 2: gender affirming healthcare for transgender miners, she used these words.

8
00:00:41,840 --> 00:00:44,960
Speaker 3: If you vote yes on this bill and yes on

9
00:00:45,000 --> 00:00:47,680
Speaker 3: these amendments, I hope the next time there's an invocation,

10
00:00:48,200 --> 00:00:50,199
Speaker 3: when you bow your heads in prayer, you see the

11
00:00:50,240 --> 00:00:51,080
Speaker 3: blood on your hands.

12
00:00:51,600 --> 00:00:54,800
Speaker 2: The Republicans, who controlled two thirds of the state House,

13
00:00:55,160 --> 00:00:59,120
Speaker 2: said that language broke decorum, and they voted to banish

14
00:00:59,200 --> 00:01:01,400
Speaker 2: Zephyr from the House floor for the rest of the

15
00:01:01,400 --> 00:01:05,720
Speaker 2: twenty twenty three legislative session, although allowing her to cast votes.

16
00:01:05,920 --> 00:01:10,119
Speaker 1: Clerk records the vote mister Kara, sixty three representatives voted I,

17
00:01:10,120 --> 00:01:13,000
Speaker 1: thirty four voted no. Really, a speaker has been upheld.

18
00:01:14,800 --> 00:01:18,479
Speaker 2: Zephyr sued, alleging a violation of her First Amendment rights,

19
00:01:18,600 --> 00:01:21,640
Speaker 2: as well as the rights of our eleven thousand constituents

20
00:01:21,680 --> 00:01:22,640
Speaker 2: to representation.

21
00:01:23,760 --> 00:01:27,600
Speaker 3: Given the fact that the Republicans used sort of an

22
00:01:27,720 --> 00:01:31,800
Speaker 3: unequal and undemocratic application of decorum to silence me and

23
00:01:31,959 --> 00:01:35,319
Speaker 3: the constituents who elected me in the legislature, I'm not

24
00:01:35,480 --> 00:01:38,240
Speaker 3: surprised that they doubled down on that effort when my

25
00:01:38,360 --> 00:01:43,240
Speaker 3: constituents showed up and demanded that their representative's voice be heard.

26
00:01:43,560 --> 00:01:46,080
Speaker 2: Joining me is Robert Peck, the president of the Center

27
00:01:46,120 --> 00:01:50,280
Speaker 2: for Constitutional Litigation. Robert give us the background of why

28
00:01:50,360 --> 00:01:51,320
Speaker 2: she was ousted.

29
00:01:52,160 --> 00:01:56,720
Speaker 4: The Montana House of Representatives claimed that she had violated

30
00:01:56,760 --> 00:02:01,600
Speaker 4: their rules of decorum by protesting against a bill under

31
00:02:01,760 --> 00:02:05,720
Speaker 4: consideration that would have banned gender affirming care, and she

32
00:02:05,920 --> 00:02:09,680
Speaker 4: pointed out that this would lead to an increased suicide

33
00:02:09,760 --> 00:02:12,040
Speaker 4: because she a choose them as basically as they passed this,

34
00:02:12,160 --> 00:02:15,760
Speaker 4: they would have blood on their hands, and that language

35
00:02:15,960 --> 00:02:19,520
Speaker 4: apparently so upset that they thought that this was terrible.

36
00:02:19,600 --> 00:02:23,120
Speaker 4: And in addition, the following day, because they stopped calling

37
00:02:23,160 --> 00:02:26,240
Speaker 4: on her so that she couldn't speak, they had the

38
00:02:26,480 --> 00:02:31,680
Speaker 4: galleries crowded with Zoe's efforts supporters and they were chanting,

39
00:02:31,880 --> 00:02:34,200
Speaker 4: let her speak, let her speak, and she held a

40
00:02:34,240 --> 00:02:38,320
Speaker 4: microphone that wasn't actually turned on over her head, as

41
00:02:38,360 --> 00:02:42,120
Speaker 4: if she was going to enhance the sound of those protests,

42
00:02:42,280 --> 00:02:44,519
Speaker 4: and they thought that amounted to insurrection.

43
00:02:44,960 --> 00:02:48,639
Speaker 2: It was on partisan lines because Republicans control two thirds

44
00:02:48,639 --> 00:02:51,800
Speaker 2: of the House and Senate in Montana. What was the censure?

45
00:02:52,360 --> 00:02:55,880
Speaker 4: So she is banished from being in the House chambers

46
00:02:56,400 --> 00:03:01,160
Speaker 4: during any legislative debate or during any action the House takes,

47
00:03:01,639 --> 00:03:05,000
Speaker 4: and she is also silenced so that she is not

48
00:03:05,080 --> 00:03:09,320
Speaker 4: allowed to speak or participate in that debate. But thinking

49
00:03:09,400 --> 00:03:11,720
Speaker 4: that this would keep them on the right side of

50
00:03:11,720 --> 00:03:15,880
Speaker 4: the constitutional line, they allow her to vote remotely. And

51
00:03:15,960 --> 00:03:19,400
Speaker 4: so she has set up herself with a laptop just

52
00:03:19,560 --> 00:03:23,040
Speaker 4: outside of the chambers where she follows it on her

53
00:03:23,120 --> 00:03:26,119
Speaker 4: laptop and she votes when it's appropriate to vote.

54
00:03:26,760 --> 00:03:30,320
Speaker 2: So she's suing. So she sued, and part of the

55
00:03:30,400 --> 00:03:34,960
Speaker 2: suit includes claims of First Amendment retaliation. It may be

56
00:03:35,080 --> 00:03:37,840
Speaker 2: indicative of our times that it's the same claim at

57
00:03:37,880 --> 00:03:41,480
Speaker 2: the center of Disney's new lawsuit against Governor Ron DeSantis

58
00:03:41,520 --> 00:03:46,440
Speaker 2: for retaliating against it for criticizing the Don't Say Gay legislation.

59
00:03:46,600 --> 00:03:48,680
Speaker 2: So tell us about that cause of action.

60
00:03:49,280 --> 00:03:53,360
Speaker 4: So a case of First Amendment. Retaliation is essentially when

61
00:03:53,400 --> 00:03:56,960
Speaker 4: you are punished for exercising your free speech rights. So

62
00:03:57,080 --> 00:04:01,640
Speaker 4: in this instance, because she basically voiced her opposition to

63
00:04:01,720 --> 00:04:05,200
Speaker 4: the then pending legislation that subsequently passed and was signed

64
00:04:05,240 --> 00:04:08,280
Speaker 4: by the governor, they banished her. And the excuse of

65
00:04:08,360 --> 00:04:12,840
Speaker 4: decorum doesn't fly because of course she was participating in

66
00:04:12,840 --> 00:04:15,839
Speaker 4: the legislative debate. They simply did not like the way

67
00:04:15,880 --> 00:04:17,640
Speaker 4: she phrased it or what she said.

68
00:04:18,560 --> 00:04:24,680
Speaker 2: She represents eleven thousand constituents, and some residents of the

69
00:04:24,720 --> 00:04:28,520
Speaker 2: Missoula area which she represents set in declarations filed as

70
00:04:28,520 --> 00:04:31,200
Speaker 2: part of the lawsuit that they wanted Zephyr her in

71
00:04:31,240 --> 00:04:34,760
Speaker 2: the legislature. How do their rights play into this?

72
00:04:35,360 --> 00:04:38,520
Speaker 4: Well, when you vote for a representative, you're voting for

73
00:04:38,600 --> 00:04:42,280
Speaker 4: someone who's going to do more than just vote. Take,

74
00:04:42,360 --> 00:04:45,800
Speaker 4: for example, the budget issue. Often what happens during budget

75
00:04:45,839 --> 00:04:49,040
Speaker 4: debates is not only pointing out how this is going

76
00:04:49,080 --> 00:04:52,840
Speaker 4: to help or adversely affect parts of the state, but

77
00:04:52,920 --> 00:04:57,040
Speaker 4: there's often horse trading that goes on. You can't basically say, look,

78
00:04:57,320 --> 00:04:59,600
Speaker 4: i'll vote for your provision if you vote for my

79
00:04:59,640 --> 00:05:01,680
Speaker 4: provision if you're not on the floor.

80
00:05:02,160 --> 00:05:06,039
Speaker 2: Also, the Montana legislature is a part time legislature that

81
00:05:06,279 --> 00:05:10,240
Speaker 2: only convenes every two years, so Zephyr would have to

82
00:05:10,279 --> 00:05:13,839
Speaker 2: be re elected in twenty twenty four before she could

83
00:05:13,920 --> 00:05:18,040
Speaker 2: return to the House floor. But even the Democratic minority leader,

84
00:05:18,200 --> 00:05:22,560
Speaker 2: Kim Abbott, appeared to concede that the removal of Zephyr

85
00:05:22,680 --> 00:05:26,000
Speaker 2: was within the House's authority. She said on the House floor,

86
00:05:26,240 --> 00:05:29,840
Speaker 2: you absolutely can do this by rule by the Constitution.

87
00:05:30,360 --> 00:05:32,880
Speaker 2: But just because you can do it does not make

88
00:05:32,920 --> 00:05:34,080
Speaker 2: it the right choice.

89
00:05:34,279 --> 00:05:38,040
Speaker 4: The statement that her Democratic leader made was wrong as

90
00:05:38,080 --> 00:05:40,880
Speaker 4: a matter of constitutional law, and we have seen this

91
00:05:41,040 --> 00:05:45,960
Speaker 4: repeatedly throughout time. So in the nineteen sixties, Julian Bond

92
00:05:46,240 --> 00:05:49,840
Speaker 4: was newly elected to the Georgia Legislature, but just before

93
00:05:49,880 --> 00:05:53,599
Speaker 4: he was sworn in, he criticized the Vietnam War and

94
00:05:53,640 --> 00:05:56,560
Speaker 4: basically said that the United States didn't belong in it. Answer,

95
00:05:56,600 --> 00:06:00,480
Speaker 4: the Georgia Legislature consider him unpatriotic for that state and

96
00:06:00,560 --> 00:06:03,760
Speaker 4: refused to let him take his office. He sued it

97
00:06:03,800 --> 00:06:05,880
Speaker 4: went all the way to the United States Supreme Court,

98
00:06:05,920 --> 00:06:08,400
Speaker 4: which in nineteen sixty six said he had to be

99
00:06:08,480 --> 00:06:11,640
Speaker 4: restored to his seat. That indeed, one of the greatest

100
00:06:11,720 --> 00:06:15,120
Speaker 4: purposes of the First Amendment is to make sure that

101
00:06:15,160 --> 00:06:18,440
Speaker 4: those who want to criticize and discuss government, even in

102
00:06:18,560 --> 00:06:20,599
Speaker 4: harsh terms, get the opportunity to do so.

103
00:06:21,080 --> 00:06:23,719
Speaker 2: Do you think that this Supreme Court would come to

104
00:06:23,760 --> 00:06:24,680
Speaker 2: a similar ruling.

105
00:06:25,120 --> 00:06:27,760
Speaker 4: I think even the Supreme Court, which you know is

106
00:06:28,080 --> 00:06:32,279
Speaker 4: not exactly friendly to transgender rights, would find this to

107
00:06:32,320 --> 00:06:35,240
Speaker 4: be a violation of the Constitution. Now, she sued in

108
00:06:35,360 --> 00:06:39,240
Speaker 4: state court, but this court has been very, very solicitous

109
00:06:39,400 --> 00:06:42,279
Speaker 4: of First Amendment rights. And here we have an addition

110
00:06:42,400 --> 00:06:45,680
Speaker 4: to those free speech rights that she exercised. A provision

111
00:06:45,720 --> 00:06:50,719
Speaker 4: in the Montana Constitution that protects legislators during legislative debate.

112
00:06:50,839 --> 00:06:53,279
Speaker 4: But they can't be sanctioned for what they say the

113
00:06:53,360 --> 00:06:57,920
Speaker 4: course of the legislative debate. And if an overwhelming majority

114
00:06:58,160 --> 00:07:02,919
Speaker 4: of the legislature, even everyone but one person, wants to

115
00:07:03,000 --> 00:07:06,320
Speaker 4: silence somebody, they don't have the right under the Montana

116
00:07:06,360 --> 00:07:09,960
Speaker 4: Constitution or the Federal Constitution to do so. And when

117
00:07:10,000 --> 00:07:12,920
Speaker 4: they violate the constitution, it is the courts that you

118
00:07:13,000 --> 00:07:15,840
Speaker 4: have to turn to to correct that. And the legislature

119
00:07:15,920 --> 00:07:18,200
Speaker 4: is subject to the constitution, it's not above it.

120
00:07:18,800 --> 00:07:22,320
Speaker 2: Well, the court that Zephyr turned to rejected her bid

121
00:07:22,400 --> 00:07:25,080
Speaker 2: to return to the state House. The judge said it

122
00:07:25,160 --> 00:07:30,280
Speaker 2: was outside his authority to overrule lawmakers. Citing separation of powers.

123
00:07:30,640 --> 00:07:34,400
Speaker 2: He said the Montana Constitution explicitly grants each house the

124
00:07:34,480 --> 00:07:37,720
Speaker 2: authority to expel or punish a member for good cause,

125
00:07:38,200 --> 00:07:42,480
Speaker 2: and that the constitution explicitly reserves this power for the legislature.

126
00:07:43,200 --> 00:07:44,640
Speaker 2: What's your take on that decision?

127
00:07:45,160 --> 00:07:45,840
Speaker 3: This was an.

128
00:07:45,760 --> 00:07:49,239
Speaker 4: Application of judicial authority. The fact is that we expect

129
00:07:49,240 --> 00:07:52,240
Speaker 4: our courts to be a check on legislative abuses that

130
00:07:52,400 --> 00:07:56,280
Speaker 4: violate the constitution. And here we have a twofold violation

131
00:07:56,360 --> 00:08:00,400
Speaker 4: with respect to the representatives so sepher and a separate

132
00:08:00,480 --> 00:08:03,920
Speaker 4: violation with respect to their constituents. And while the authority

133
00:08:03,920 --> 00:08:07,080
Speaker 4: of the legislature is to expel a member for good cause,

134
00:08:07,120 --> 00:08:11,440
Speaker 4: that didn't expel her. They instead imposed a sanction on

135
00:08:11,600 --> 00:08:14,800
Speaker 4: her which she could continue to vote, So she was

136
00:08:14,840 --> 00:08:18,240
Speaker 4: not expelled, but she could not be seen or heard,

137
00:08:18,520 --> 00:08:22,240
Speaker 4: and that was an interference with her First Amendment rights. Certainly,

138
00:08:22,560 --> 00:08:25,880
Speaker 4: internal rules of the legislature don't overlive that. It was

139
00:08:25,920 --> 00:08:29,760
Speaker 4: also a violation of the Legislative Debate Provision, which the

140
00:08:29,920 --> 00:08:33,400
Speaker 4: Montana Supreme Court has enforced in the past, and so

141
00:08:33,559 --> 00:08:36,800
Speaker 4: therefore this was really strange that he thought had no

142
00:08:36,840 --> 00:08:39,240
Speaker 4: authority there. And then he also failed to address the

143
00:08:39,280 --> 00:08:43,360
Speaker 4: fact that this also left the constituents without a voice

144
00:08:43,440 --> 00:08:47,040
Speaker 4: on the House floor in violation of equal protection. This

145
00:08:47,320 --> 00:08:51,200
Speaker 4: again was an attempt really to punt on a controversial

146
00:08:51,240 --> 00:08:53,400
Speaker 4: issue so that he wouldn't have to deal with the

147
00:08:53,440 --> 00:08:54,360
Speaker 4: merits of anything.

148
00:08:54,760 --> 00:08:58,560
Speaker 2: Zephyr's attorneys said they're considering an appeal, but pointed to

149
00:08:58,679 --> 00:09:02,640
Speaker 2: the fact that the legislative session is ending, so there'd

150
00:09:02,679 --> 00:09:03,640
Speaker 2: be no consequence.

151
00:09:04,200 --> 00:09:08,959
Speaker 4: Well, the legislative session actually ended shortly after this judge's decision.

152
00:09:09,040 --> 00:09:11,480
Speaker 4: They moved up the time and they adjourned, and I

153
00:09:11,520 --> 00:09:14,400
Speaker 4: think they did that voting on the budget and avoiding

154
00:09:14,520 --> 00:09:17,480
Speaker 4: anything else, hoping that this loots the case so that

155
00:09:17,520 --> 00:09:19,680
Speaker 4: it could not be appealed. And certainly there is a

156
00:09:19,760 --> 00:09:22,760
Speaker 4: substantial argument that it is looted because there is no

157
00:09:22,960 --> 00:09:27,079
Speaker 4: existing injury from this, because the sanction against her also ended.

158
00:09:27,240 --> 00:09:29,720
Speaker 4: But I would argue that this is one of those

159
00:09:29,760 --> 00:09:33,360
Speaker 4: cases that is likely to repeat itself and evade review

160
00:09:33,400 --> 00:09:36,760
Speaker 4: because of the short period of the legislative session and

161
00:09:37,040 --> 00:09:40,800
Speaker 4: slowness with which courts operate, and so I would venture

162
00:09:40,840 --> 00:09:43,440
Speaker 4: that an appeal still lies and that there ought to

163
00:09:43,480 --> 00:09:46,720
Speaker 4: be a declaratory judgment about whether they could act this

164
00:09:46,800 --> 00:09:47,880
Speaker 4: way again in the future.

165
00:09:48,320 --> 00:09:51,280
Speaker 2: Thanks so much, Robert. That's Robert Peck of the Center

166
00:09:51,320 --> 00:09:55,559
Speaker 2: for Constitutional Litigation. Coming up, the Supreme Court will consider

167
00:09:55,640 --> 00:09:59,199
Speaker 2: reversing a forty year old president. You're listening to Bloomberg.

168
00:10:00,760 --> 00:10:04,920
Speaker 2: A new gallipole shows that nearly sixty percent of respondents

169
00:10:05,280 --> 00:10:08,720
Speaker 2: disapprove of the job. The Supreme Court is doing this

170
00:10:08,840 --> 00:10:12,800
Speaker 2: amid reports suggesting that justices might have had conflicts of interest.

171
00:10:13,400 --> 00:10:17,840
Speaker 2: There are reports of lavish vacations Justice Clarence Thomas took

172
00:10:17,880 --> 00:10:22,760
Speaker 2: for two decades, paid for by billionaire GOP donor Harlan Crowe,

173
00:10:23,000 --> 00:10:25,920
Speaker 2: and also a real estate deal with Crowe. The Senate

174
00:10:26,040 --> 00:10:29,000
Speaker 2: Judiciary Committee held a hearing on what should be done

175
00:10:29,120 --> 00:10:34,199
Speaker 2: to enact ethics guidelines for Supreme Court justices. Committee members

176
00:10:34,200 --> 00:10:38,280
Speaker 2: heard from a panel of legal experts, including rakeem Brooks,

177
00:10:38,320 --> 00:10:41,880
Speaker 2: the president of the Alliance for Justice, and Jeremy Foegel,

178
00:10:42,120 --> 00:10:45,360
Speaker 2: the executive director for the Berkeley Judicial Institute.

179
00:10:45,640 --> 00:10:48,400
Speaker 5: When you become a public servant, we all agree that

180
00:10:48,440 --> 00:10:50,959
Speaker 5: you will forsake riches while in office.

181
00:10:51,520 --> 00:10:53,360
Speaker 1: You may indeed be friends.

182
00:10:52,960 --> 00:10:55,240
Speaker 2: With millionaires and billionaires, but.

183
00:10:55,200 --> 00:10:57,840
Speaker 5: You don't get to share their world to build a

184
00:10:57,840 --> 00:10:59,200
Speaker 5: mansion in yours.

185
00:11:00,679 --> 00:11:00,920
Speaker 6: Too.

186
00:11:00,960 --> 00:11:04,280
Speaker 5: Many Americans already think that the justices decide cases based

187
00:11:04,320 --> 00:11:06,960
Speaker 5: on their political preferences and alliances rather than the law.

188
00:11:07,800 --> 00:11:11,400
Speaker 5: Lack of clarity about the justices ethical obligations only feeds

189
00:11:11,440 --> 00:11:12,040
Speaker 5: that perception.

190
00:11:12,840 --> 00:11:16,840
Speaker 2: However, Republican senators criticize the hearing as an effort to

191
00:11:16,880 --> 00:11:20,480
Speaker 2: destroy the reputation of Thomas, who's one of the staunchest

192
00:11:20,480 --> 00:11:23,880
Speaker 2: conservative voices on the Court. Joining me is an expert

193
00:11:23,880 --> 00:11:27,559
Speaker 2: in judicial ethics, Arthur Hellman, a professor at the University

194
00:11:27,559 --> 00:11:30,640
Speaker 2: of Pittsburgh's School of Law. Through the years, the justices

195
00:11:30,679 --> 00:11:34,680
Speaker 2: have been called upon to write their own code of conduct,

196
00:11:35,080 --> 00:11:40,359
Speaker 2: but they've never done so. And recently the Chief presented

197
00:11:40,400 --> 00:11:44,520
Speaker 2: this statement on ethics, principles and practices. At all nine

198
00:11:44,679 --> 00:11:49,080
Speaker 2: justices signed it. It's nothing new, So is that an

199
00:11:49,120 --> 00:11:53,080
Speaker 2: indication to you that they think everything's fine, They don't

200
00:11:53,200 --> 00:11:55,160
Speaker 2: think they have to have an ethics code.

201
00:11:55,720 --> 00:12:00,960
Speaker 6: It certainly suggests that they're not prepared to an ethics

202
00:12:01,040 --> 00:12:03,560
Speaker 6: code at this time, or at least they were not

203
00:12:04,160 --> 00:12:08,480
Speaker 6: when they submitted that statement. In response to the question

204
00:12:08,640 --> 00:12:12,199
Speaker 6: from the Senate. It did strike me that at the hearing,

205
00:12:12,480 --> 00:12:17,360
Speaker 6: some of the Republican senators, although generally defending the Court,

206
00:12:17,679 --> 00:12:22,000
Speaker 6: seemed to give indications that they might find that defense

207
00:12:22,040 --> 00:12:25,800
Speaker 6: a little bit easier if the Court did adopt a

208
00:12:25,880 --> 00:12:28,120
Speaker 6: code of conduct. And one of the things that has

209
00:12:28,160 --> 00:12:32,319
Speaker 6: always struck me is that the Court has explained sort

210
00:12:32,360 --> 00:12:37,480
Speaker 6: of why it doesn't think it needs a code of conduct,

211
00:12:37,840 --> 00:12:40,720
Speaker 6: but I don't think it has ever really explained why

212
00:12:41,200 --> 00:12:45,480
Speaker 6: that would be a bad idea. Now, I think the

213
00:12:45,559 --> 00:12:50,440
Speaker 6: reason may be one that their reluctance to express in public,

214
00:12:51,040 --> 00:12:54,400
Speaker 6: namely that if they do adopt a code of conduct,

215
00:12:54,960 --> 00:13:00,439
Speaker 6: it will make it easier for partisan or ideologically motivated

216
00:13:00,640 --> 00:13:06,040
Speaker 6: people to attack particular justices. But there's so much attack

217
00:13:06,240 --> 00:13:10,360
Speaker 6: going on now that I'm not sure that reasoning, if

218
00:13:10,360 --> 00:13:14,640
Speaker 6: it is the reasoning behind their reluctance, should carry much weight.

219
00:13:15,360 --> 00:13:18,280
Speaker 6: I do think at this point that they would be

220
00:13:18,320 --> 00:13:22,360
Speaker 6: well advised to adopt a code of conduct, and we

221
00:13:22,400 --> 00:13:25,160
Speaker 6: should be clear what that means. That a code of conduct,

222
00:13:25,240 --> 00:13:29,000
Speaker 6: as a Chief Justice says, is a source of guidance,

223
00:13:29,320 --> 00:13:33,560
Speaker 6: it does not carry with it an enforcement mechanism necessarily

224
00:13:34,080 --> 00:13:37,680
Speaker 6: that's a separate question. That's a more difficult question. But

225
00:13:38,400 --> 00:13:42,719
Speaker 6: once the justices have told us that they do have

226
00:13:42,880 --> 00:13:47,520
Speaker 6: a written down set of principles and practices, it seems

227
00:13:47,559 --> 00:13:50,640
Speaker 6: to me it's a very short step to actually adopt

228
00:13:50,679 --> 00:13:54,040
Speaker 6: a code of conduct. It's hard to see what they

229
00:13:54,600 --> 00:13:59,000
Speaker 6: gain by refusing to do so, and I do think

230
00:13:59,080 --> 00:14:04,120
Speaker 6: they could gained some support. They would have done something

231
00:14:04,160 --> 00:14:07,760
Speaker 6: to respond to this outcry, whether or not the outcry

232
00:14:08,040 --> 00:14:13,200
Speaker 6: is motivated by genuine concern over ethics. There are some

233
00:14:13,240 --> 00:14:16,840
Speaker 6: good reasons for having a code of conduct.

234
00:14:17,120 --> 00:14:20,000
Speaker 2: And why couldn't they just adopt the code of conduct

235
00:14:20,080 --> 00:14:22,600
Speaker 2: that other federal judges are subject to.

236
00:14:23,600 --> 00:14:26,720
Speaker 6: I've seen statements to the effect that, well, the code

237
00:14:26,760 --> 00:14:30,960
Speaker 6: of Conduct for United States judges, which is applicable to

238
00:14:31,680 --> 00:14:37,520
Speaker 6: all other federal judges, isn't necessarily applicable to Supreme Court justices.

239
00:14:38,120 --> 00:14:41,280
Speaker 6: But I'm not sure that anybody has pointed out any

240
00:14:41,320 --> 00:14:46,080
Speaker 6: specific provisions that would be inapplicable. And in fact, if

241
00:14:46,080 --> 00:14:48,400
Speaker 6: you look at the code, it seems to me that

242
00:14:48,480 --> 00:14:52,720
Speaker 6: most of the provisions very clearly would be equally suitable.

243
00:14:52,840 --> 00:14:56,440
Speaker 6: For example, a judge may not make a contribution to

244
00:14:56,480 --> 00:14:59,840
Speaker 6: a political candidate, A judge should not be a member

245
00:15:00,080 --> 00:15:04,240
Speaker 6: of a club that practices invidious discrimination. A judge should

246
00:15:04,280 --> 00:15:08,080
Speaker 6: not use his or her judicial position to advance the

247
00:15:08,160 --> 00:15:12,480
Speaker 6: private interests of the judge, whether judge's friends or associates.

248
00:15:12,560 --> 00:15:15,640
Speaker 6: Those are some of the provisions of the code, and

249
00:15:15,760 --> 00:15:19,840
Speaker 6: I can't imagine that the justices would say, well, those

250
00:15:19,880 --> 00:15:22,560
Speaker 6: don't apply to us. So I really think it would

251
00:15:22,560 --> 00:15:25,960
Speaker 6: be a very easy task to go through that code.

252
00:15:26,440 --> 00:15:29,640
Speaker 6: If there are some provisions that for some reason shouldn't

253
00:15:29,640 --> 00:15:34,480
Speaker 6: apply to Supreme Court justices, they can modify or eliminate those.

254
00:15:35,000 --> 00:15:37,720
Speaker 6: But I think it would be a very easy job

255
00:15:38,200 --> 00:15:41,800
Speaker 6: to take the existing Code of Conduct for United States

256
00:15:41,880 --> 00:15:45,320
Speaker 6: judges and turn it into one that the Justices could

257
00:15:45,360 --> 00:15:49,000
Speaker 6: put on their website and say, we look to this

258
00:15:49,200 --> 00:15:50,160
Speaker 6: for guidance.

259
00:15:51,160 --> 00:15:55,480
Speaker 2: So Senator Dick Durbin said, lacks ethical standards have created

260
00:15:55,520 --> 00:15:59,560
Speaker 2: a lack of public confidence in the Court. The Court

261
00:15:59,600 --> 00:16:02,320
Speaker 2: is at an all time low as far as public

262
00:16:02,640 --> 00:16:04,920
Speaker 2: opinion goes, And does this add to it.

263
00:16:05,880 --> 00:16:09,880
Speaker 6: Well, it may, although I think for most people the

264
00:16:09,960 --> 00:16:14,000
Speaker 6: ethical issues are far less important than the Court's decisions.

265
00:16:14,560 --> 00:16:17,600
Speaker 6: And I think it was the Court's decisions, particularly in

266
00:16:17,000 --> 00:16:22,800
Speaker 6: the most recent term the hugely controversial overruling of Roe v.

267
00:16:22,920 --> 00:16:27,080
Speaker 6: Wade that have been most responsible for changes in a

268
00:16:27,280 --> 00:16:33,440
Speaker 6: negative direction of public approval of the Court. The ethical issues, sure,

269
00:16:33,560 --> 00:16:39,720
Speaker 6: they add fire to the flames, it's not the major driver.

270
00:16:40,280 --> 00:16:45,280
Speaker 6: I do think that the Court would find it has

271
00:16:45,560 --> 00:16:50,720
Speaker 6: more friends if it did adopt a code of conduct

272
00:16:51,400 --> 00:16:53,880
Speaker 6: that would guide it in the same way that it

273
00:16:53,960 --> 00:16:55,600
Speaker 6: guides other federal judges.

274
00:16:56,400 --> 00:17:00,160
Speaker 2: To me, what it makes it seem like this, this

275
00:17:00,280 --> 00:17:03,160
Speaker 2: refusal over year after year after year to adopt a

276
00:17:03,200 --> 00:17:07,720
Speaker 2: code of ethics, that the Supreme Court justices are above

277
00:17:07,760 --> 00:17:11,040
Speaker 2: the law, they don't need to follow the same rules

278
00:17:11,040 --> 00:17:14,160
Speaker 2: and regulations, are rebound by the same rules and regulations

279
00:17:14,200 --> 00:17:16,080
Speaker 2: as other federal judges.

280
00:17:17,040 --> 00:17:21,119
Speaker 6: Well, I don't think it suggests that they think they're

281
00:17:21,720 --> 00:17:25,960
Speaker 6: above the law. I mean, they keep reiterating that they

282
00:17:26,080 --> 00:17:30,840
Speaker 6: do look to the Code of conduct or guidance. That

283
00:17:30,960 --> 00:17:33,640
Speaker 6: is what makes it so baffling to me that they

284
00:17:33,680 --> 00:17:37,240
Speaker 6: don't say in a formal way, we look to the

285
00:17:37,320 --> 00:17:39,840
Speaker 6: code for guidance. In other words, if you look at

286
00:17:39,840 --> 00:17:43,400
Speaker 6: the code, it says that's the source of guidance. And

287
00:17:44,119 --> 00:17:47,120
Speaker 6: I just don't see why the Supreme Court is unwilling

288
00:17:47,160 --> 00:17:51,560
Speaker 6: to say, we too look to the Code as a

289
00:17:51,600 --> 00:17:55,840
Speaker 6: source of guidance. But I don't think that not making

290
00:17:55,880 --> 00:18:00,840
Speaker 6: it formal suggests that they think they're above the law.

291
00:18:01,600 --> 00:18:09,600
Speaker 6: They think that informal consultation is so close to adopting

292
00:18:09,680 --> 00:18:13,480
Speaker 6: the code that they don't need to take that further step.

293
00:18:13,680 --> 00:18:18,200
Speaker 6: And further they may think that taking that step will

294
00:18:18,200 --> 00:18:22,400
Speaker 6: make them more vulnerable to attacks as I don't think

295
00:18:22,440 --> 00:18:26,800
Speaker 6: that reasoning, if it was ever persuasive, is persuasive today.

296
00:18:27,240 --> 00:18:30,920
Speaker 6: But I don't think that equivalent of their saying we're

297
00:18:30,960 --> 00:18:34,000
Speaker 6: above the law. They look at the law in the

298
00:18:34,080 --> 00:18:37,040
Speaker 6: sense that they look at the rules. They just have

299
00:18:37,160 --> 00:18:42,000
Speaker 6: a somewhat different relationship to it. It's not the formal

300
00:18:42,560 --> 00:18:47,080
Speaker 6: relationship that other federal judges have, despite.

301
00:18:46,720 --> 00:18:50,680
Speaker 2: The fact that they have this guidance that they supposedly follow.

302
00:18:51,359 --> 00:18:55,000
Speaker 2: Look what happened in Clarence Thomas's case, and it looks

303
00:18:55,080 --> 00:18:58,760
Speaker 2: like there won't even be an investigation. The only way

304
00:18:59,000 --> 00:19:03,280
Speaker 2: to hold up into account seems to be impeachment, and

305
00:19:03,320 --> 00:19:06,280
Speaker 2: that's almost impossible in the political landscape today.

306
00:19:07,440 --> 00:19:11,960
Speaker 6: Well, it is true that in the lower federal courts

307
00:19:12,600 --> 00:19:19,960
Speaker 6: there is a mechanism for investigating allegations of misconduct by

308
00:19:20,200 --> 00:19:23,879
Speaker 6: judges that is entirely separate from the Code of Conduct,

309
00:19:24,280 --> 00:19:28,240
Speaker 6: and both documents, both of the Code of Conduct and

310
00:19:28,320 --> 00:19:32,879
Speaker 6: the rules governing the misconduct process may clear that the

311
00:19:32,880 --> 00:19:37,000
Speaker 6: two systems are not congruent, that a violation of the

312
00:19:37,040 --> 00:19:43,600
Speaker 6: Code is not necessarily misconduct, but misconduct proceedings can be

313
00:19:43,800 --> 00:19:48,840
Speaker 6: used where there's an allegation of a violation of the Code,

314
00:19:49,400 --> 00:19:53,679
Speaker 6: and there is no equivalent process for the Supreme Court.

315
00:19:54,040 --> 00:19:56,000
Speaker 6: But I think a couple of the witnesses that the

316
00:19:56,040 --> 00:20:00,240
Speaker 6: hearing pointed out very powerfully how difficult it would be

317
00:20:00,400 --> 00:20:03,920
Speaker 6: and how problematic it would be to try to come

318
00:20:04,000 --> 00:20:08,439
Speaker 6: up with a counterpart set of procedures for the Supreme Court.

319
00:20:08,920 --> 00:20:12,720
Speaker 6: It would be misused, it would be weaponized, and I

320
00:20:12,800 --> 00:20:16,440
Speaker 6: don't think it would be an improvement over the current situation.

321
00:20:17,119 --> 00:20:20,400
Speaker 6: Although I agree with you that it is not ideal

322
00:20:21,160 --> 00:20:25,639
Speaker 6: that there is no enforcement mechanism for the Supreme Court.

323
00:20:26,280 --> 00:20:29,320
Speaker 6: But I think in the end, my view is that

324
00:20:29,760 --> 00:20:31,720
Speaker 6: the cure would be worse than the disease.

325
00:20:32,640 --> 00:20:35,000
Speaker 2: I just wonder if the justices just think, you know,

326
00:20:35,040 --> 00:20:39,880
Speaker 2: our attention spans are so short and this will blow over,

327
00:20:40,160 --> 00:20:42,920
Speaker 2: just like you know, the League draft sort of blew

328
00:20:42,960 --> 00:20:46,119
Speaker 2: over until Justice Alito started talking about it again.

329
00:20:46,840 --> 00:20:50,119
Speaker 6: I don't want to speculate as to their motives, or

330
00:20:50,119 --> 00:20:52,600
Speaker 6: I guess I have speculated a little bit as to

331
00:20:52,640 --> 00:20:56,360
Speaker 6: their thinking. I think that they do believe that they

332
00:20:56,560 --> 00:21:02,119
Speaker 6: and their colleagues do their best to comely and some

333
00:21:02,200 --> 00:21:06,520
Speaker 6: of the reasons that witnesses suggested coming up with an

334
00:21:06,680 --> 00:21:11,880
Speaker 6: enforcement mechanism would be so threatening to the way the

335
00:21:11,880 --> 00:21:16,639
Speaker 6: court works and in the end would result in even

336
00:21:17,119 --> 00:21:22,520
Speaker 6: more problems with respect to perceptions among people, because you

337
00:21:22,560 --> 00:21:26,399
Speaker 6: would then have a steady flow of complaints that would

338
00:21:26,400 --> 00:21:31,040
Speaker 6: assure that Supreme Court ethics were always in the news

339
00:21:31,160 --> 00:21:34,560
Speaker 6: one way or the other, and that can possibly be

340
00:21:34,680 --> 00:21:37,760
Speaker 6: helpful to the court or to the system of justice.

341
00:21:37,960 --> 00:21:40,160
Speaker 2: Thanks so much for being on the show, Arthur. That's

342
00:21:40,240 --> 00:21:43,720
Speaker 2: Professor Arthur Hellman of the University of Pittsburgh School of Law.

343
00:21:44,000 --> 00:21:46,320
Speaker 2: And that's it for this edition of The Bloomberg Law Show.

344
00:21:46,640 --> 00:21:49,000
Speaker 2: Remember you can always get the latest legal news on

345
00:21:49,040 --> 00:21:53,320
Speaker 2: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,

346
00:21:53,520 --> 00:21:58,560
Speaker 2: and at www dot Bloomberg dot com, Slash podcast Slash Law,

347
00:21:58,960 --> 00:22:01,520
Speaker 2: and remember to tune into The Bloomberg Las Show every

348
00:22:01,600 --> 00:22:05,480
Speaker 2: weeknight at ten pm Wall Street Time. I'm Jim Grosso

349
00:22:05,640 --> 00:22:07,240
Speaker 2: and you're listening to Bloomberg