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

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Speaker 1: The new Supreme Court term begins on Monday, and it

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Speaker 1: promises to be a term with several blockbuster decisions on

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Speaker 1: the docket so far, tariffs, congressional maps, transgender rights, campaign finance,

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Speaker 1: religious rights, copyright and capital punishment, and perhaps most consequential,

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Speaker 1: several tests of President Trump's attempts to expand executive power.

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Speaker 1: My guest is former United States Solicitor General Gregory Garr,

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Speaker 1: a partner at Latham and Watkins. Greig, let's start with

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Speaker 1: one of the biggest cases of the term, where trillions

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Speaker 1: of dollars in trade are at stake, as well as

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Speaker 1: the extent of the president's authority.

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Speaker 2: If you took away tariffs, we could end up being

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Speaker 2: a third World country.

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Speaker 1: President Trump has put tariffs at the center of USA

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Speaker 1: economic policy. Lower courts ruled that he overstepped his authority,

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Speaker 1: but now it will be up to the Supreme Court

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Speaker 1: to decide.

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Speaker 2: It's a very important decision, and frankly, if they'd make

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Speaker 2: the wrong decision, it would be a devastation for our country.

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Speaker 2: We've taken in trillions of dollars.

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Speaker 3: Greig, what are the issues here.

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Speaker 4: So this case involves a challenge brought by small businesses

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Speaker 4: to President Trump's tariff policy imposing tariffs on products from

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Speaker 4: companies around the world. Importantly, in this case, the President

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Speaker 4: doesn't assert inherent executive power to impose the tariffs, and said,

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Speaker 4: he claims that Congress granted him the power under a

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Speaker 4: fifty year old statute called the International Emergency Economic Powers Act,

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Speaker 4: or AEPA, and Section seventeen oh two of AEPA has

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Speaker 4: a long list of things that the president can do

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Speaker 4: if he declares an emergency, as President Trump did here

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Speaker 4: on the basis of foreign trade deficits and the Futonol

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Speaker 4: crisis as to certain countries. So when the president declares

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Speaker 4: such an emergency, Congress authorized him to do a number

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Speaker 4: of things, including to quote unquote regulate the importation of goods.

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Speaker 4: So this statue doesn't mention tariffs expressly. Before this year,

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Speaker 4: no president in aiba's fifty year history had ever invoked

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Speaker 4: it to impose tariffs, and Congress has always explicitly imposed

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Speaker 4: limitations on the exercise of tariffs when it's granted that

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Speaker 4: power explicitly. But the president claims that the broad reference

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Speaker 4: to regulate in this statute does authorize him to impose

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Speaker 4: the tariffs on goods around the country. So far, he's

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Speaker 4: lost that argument in each of the lower courts that

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Speaker 4: has considered it, but the case is moving to the

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Speaker 4: Supreme Court. And one of the signature projects of the

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Speaker 4: Roberts Court has been the development of the so called

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Speaker 4: major Questions doctrine, which is built on the age old

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Speaker 4: principle that Congress does not hide elephants in mouseholes. So

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Speaker 4: a couple of years ago, the Supreme Court in Biden

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Speaker 4: versus Nebraska held the Department of Education lacked authority to

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Speaker 4: institute sweeping student loan forgiveness on the basis of a

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Speaker 4: general emergency language in the Hero's Act. And before then

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Speaker 4: it held in a different case that the EPA couldn't

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Speaker 4: rely on a general provision of the Clean Air Act

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Speaker 4: to enforce sweeping climate change regulation. And the challengers in

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Speaker 4: this case essentially argued that the same principle compels the

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Speaker 4: conclusion that Ayapa's general reference to regulate can't be interpreted

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Speaker 4: to authorize the President to impose what would amount to

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Speaker 4: one of the biggest texts increases in US history, sort

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Speaker 4: of the elephant of all elephants.

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Speaker 2: Now.

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Speaker 4: In response, the administration claims that the Court has never

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Speaker 4: applied the major Questions doctrine to the foreign affairs context,

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Speaker 4: and that in that context, the Court should presume that

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Speaker 4: Congress would give the president mora, which is actually something

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Speaker 4: that Justice Kavanaugh suggested in a concurring opinion last year. Nevertheless,

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Speaker 4: it seems hard to square the Administration's position in this

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Speaker 4: case with the application of the Major question doctrine in

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Speaker 4: other cases, particularly given that few presidential acts have had

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Speaker 4: such a momentous economic sweep as the president's tariff program has.

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Speaker 4: So this is a very big power he's asserting, and

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Speaker 4: we're all waiting to see how the Court reacts to

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Speaker 4: this particular assertion.

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Speaker 1: So, as you mentioned, the two lower courts rule that

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Speaker 1: Toompet overstepped his authority in imposing most of these tariffs.

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Speaker 1: Do you think the Supreme Court took this case to

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Speaker 1: overturn the lower courts or they would have taken the

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Speaker 1: case anyway because it's such an important issue.

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Speaker 4: Yeah, I think this is one that the Supreme Court

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Speaker 4: was going to take, probably either way, but certainly given

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Speaker 4: that the lower courts and validated the president's policy and

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Speaker 4: the administration was acting for review, I think it was

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Speaker 4: pretty much automatic that the Court was going to agree

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Speaker 4: to hear the case.

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Speaker 1: Do you think that this case of the cases the

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Speaker 1: Court is going to consider this term, is this the

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Speaker 1: greatest tests of Trump's attempt to expand presidential authority?

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Speaker 4: Well, this case is different, and that again, it really

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Speaker 4: just concerns the scope of the authority that Congress granted.

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Speaker 4: In other cases that I think we'll talk about, the

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Speaker 4: question is the president's assertion of his own inherent constitutional authority.

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Speaker 4: But this case really just boils down to a question

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Speaker 4: of what Congress delegated. So I mean, even if the

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Speaker 4: administration did win this case, it would still lead to

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Speaker 4: Congress the prerogative to change the law. On the other hand,

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Speaker 4: the Court might hold, again following its major questions cases,

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Speaker 4: that Congress simply didn't delegate this elephant to begin with.

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Speaker 1: Okay, So going on to a couple of other cases

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Speaker 1: that set up tests of presidential power over federal agencies

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Speaker 1: that have been into They involved Trump firing a member

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Speaker 1: of the Federal Trade Commission, Rebecca Slaughter, and a Federal

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Speaker 1: Reserve Board governor Lisa Cook, slightly different issues. So let's

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Speaker 1: start with the FTC commissioner, And is it about the

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Speaker 1: law there that says commissioners can only be removed for cause?

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Speaker 4: Right? And this is one of the cases where the

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Speaker 4: President is asserting his own inherent authority and Congress has

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Speaker 4: imposed a limitation on the president's removal authority with respective

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Speaker 4: heads of the Federal Trade Commission and requires the President

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Speaker 4: to show cause things like malfeesance or neglect of duty

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Speaker 4: or the like before he can actually remove the official.

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Speaker 4: And in this case, the President removed the official, Rebecca Slaughter,

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Speaker 4: a commissioner of the FTC, simply because he disagreed with

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Speaker 4: her as a matter of policy. So this case tees

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Speaker 4: up a challenge to a nineteen thirty five decision called

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Speaker 4: Humphreys Executor, where the Court upheld the Congress's imposition of

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Speaker 4: a four cause reques arnament on the president's removal of

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Speaker 4: commissioners of the FTC. So it's basically just a redo

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Speaker 4: and a chance for the Supreme Court to reconsider it's

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Speaker 4: Humphrey's Executor precedent. The administration here is arguing, first of all,

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Speaker 4: that the FTC has changed a lot since the day

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Speaker 4: of Humphrey's Executor. In essence, this is not your grandfather's FTC.

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Speaker 4: It's got a lot more executive authority, and so whatever

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Speaker 4: constitutional basis the Court had for its decision in Humphrey's Executor,

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Speaker 4: that shouldn't apply to the FTC today. The administration also

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Speaker 4: argues that if the Court doesn't accept that, it should

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Speaker 4: just go ahead and overrule the Humphreys Executor decision, which

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Speaker 4: is something a number of the more conservative justices have

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Speaker 4: expressed a willingness to do in recent years. And the

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Speaker 4: administration is also arguing that even if the President did

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Speaker 4: do something wrong here, a court couldn't actually order the

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Speaker 4: reinstatement of the official misslaughter here. The only remedy would

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Speaker 4: be one for back pay, which is actually the remedy

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Speaker 4: that was sought in the Humphreys Executor case. So this

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Speaker 4: is a major test of executive power. And really, although

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Speaker 4: the case arises in the context of firing an individual,

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Speaker 4: ultimately it's about the president seeking to gain control of

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Speaker 4: so called independent agencies by being able to place his

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Speaker 4: own preferred heads of those agencies in place.

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Speaker 1: So the Court has been chipping away at Humphrey's Executor

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Speaker 1: for a while, and Justice Elena Keigan said in one

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Speaker 1: of her recent decisions that you know, they're raring to

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Speaker 1: get rid of Humphrey's executor. Do you think Humphrey's executor

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Speaker 1: can survive this term?

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Speaker 4: You know, it sure seems like they are raring to

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Speaker 4: get rid of it, and you know, I probably would

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Speaker 4: put my money on the side of it not surviving.

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Speaker 4: That said, I mean, it would be fairly easy for

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Speaker 4: the Court to say that the FDC today is much

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Speaker 4: different than the FDC in Humphrey's executive time, and so

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Speaker 4: to you know, further narrow Humphrey's executor. But I do

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Speaker 4: think it's the case that the Justice is probably have

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Speaker 4: just had enough. So I think Humphrey's executors' day's maybe numbered.

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Speaker 1: The Court refused to let Slaughter return to her job

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Speaker 1: as the litigation goes forward, and that sets it apart

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Speaker 1: from the next case we'll talk about involving Trump's attempts

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Speaker 1: to fire Federal Reserve Board Governor Lisa Cook, and this

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Speaker 1: week the Court said that Trump can't fire Cook as

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Speaker 1: the litigation is proceeding. Is that different significant?

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Speaker 4: Yeah? I think it is. I mean, it's the one

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Speaker 4: time among all the other officials that the president has

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Speaker 4: fired that the Supreme Court has declined to grant the

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Speaker 4: administration's request to permit it to actually remove the official

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Speaker 4: once and for all, and instead, what the Supreme Court

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Speaker 4: did here was set the case for argument on the

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Speaker 4: administration's emergency request in January. Cook's case is different. Cook

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Speaker 4: is a member of the Board of Governors of the

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Speaker 4: Federal Reserve, and here the President isn't claiming that he

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Speaker 4: had the right place to fire Cook for any reason.

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Speaker 4: He claims that he had cause based on allegations that

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Speaker 4: she had engaged in mortgage fraud before she became a

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Speaker 4: member of the FED. So that's one way in which

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Speaker 4: the case is different than the Slaughter case. And then

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Speaker 4: also that the Supreme Court has indicated in prior opinions

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Speaker 4: that the FED may be different, and that it's what

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Speaker 4: the Supreme Court called a uniquely structured and quasi private

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Speaker 4: entity with the unique history. So even if the Court

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Speaker 4: is poised to overrule Humphrey's executor in the case of

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Speaker 4: an FDC official, it's not at all clear that the

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Speaker 4: Court is poised to reach anything like that result in

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Speaker 4: the context of the FED, which I think many believe

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Speaker 4: is uniquely important in terms of its insulation from immediate

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Speaker 4: presidential control.

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Speaker 1: If the Court says Trump can't fire Cook, won't have

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Speaker 1: any trouble coming to that decision in a reasoned way,

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Speaker 1: you know. Distinguishing the FED from other independent agencies, I.

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Speaker 4: Don't think so. And you know, in fact, as I mentioned,

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Speaker 4: I mean, the Court has already acknowledged a distinction. Now,

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Speaker 4: the question in Cooks case will be how far it

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Speaker 4: wants to run with that. But certainly the FED is different.

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Speaker 4: It has roots in the old first National Bank of

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Speaker 4: the United States, and it's uniquely structured, and I think,

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Speaker 4: you know, many including Justice Kavanaugh and writings off the Court,

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Speaker 4: have sort of acknowledged that there may be particular concerns

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Speaker 4: as to why that would be an agency that could

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Speaker 4: operate with some independence within our constitutional system. So we'll

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Speaker 4: have to see next.

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Speaker 1: There's a case that could have an enormous effect on

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Speaker 1: elections in dozens of congressional districts with predominantly minority populations,

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Speaker 1: and it involves a Louisiana electoral map that raised the

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Speaker 1: number of black majority US congressional districts in that state.

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Speaker 1: It's already been at the Supreme Court once.

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Speaker 4: Yeah, So the case was argued in brief last term,

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Speaker 4: and the court couldn't reach a decision, they set it

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Speaker 4: for reargument and consideration this term, and this case really

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Speaker 4: has sort of had a long and tertious history already.

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Speaker 4: So after the twenty twenty census, Louisiana legislature, like many states,

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Speaker 4: went back and redrew its congressional maps, and the new

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Speaker 4: map it drew had one majority black district out of

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Speaker 4: six districts statewide. At that point, a group of black

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Speaker 4: voters brought suit against the state, arguing that the plan

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Speaker 4: impermissively diluted the votes of black residents in violation of

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Speaker 4: Section two of the Voting Rights Act because nearly a

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Speaker 4: third of the state's population is black. So the lower

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Speaker 4: courts ultimately ordered the state to draw a new map,

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Speaker 4: and the new map contained a second black majority district,

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Speaker 4: But this time a group of non black residents went

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Speaker 4: to federal court and argued that the twenty twenty four

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Speaker 4: map impermissibly took race into account in the other direction

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Speaker 4: and so it was itself invalid. So the state basically

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Speaker 4: went to the Supreme Court, said it was between Iraq

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Speaker 4: and a hard place and asked a court to resolved it.

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Speaker 4: And as you noted the Court was enabled to do

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Speaker 4: so last term, So it's set up for reargument again

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Speaker 4: and basically up the ante by asking the parties to

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Speaker 4: brief the question of whether the state's intentional creation of

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Speaker 4: a second majority minority district to comply with the Voting

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Speaker 4: Rights Act actually violated the equal protection clause. So now

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Speaker 4: the Court is faced with the question that is sort

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Speaker 4: of long beleegure at the Court in voting rights cases,

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Speaker 4: which is, how do you square the fact that you

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Speaker 4: have to take race into account to comply with the

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Speaker 4: protections of the Voting Rights Act with the fact that

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Speaker 4: the constitution Equal Protection class generally prohibit states from taking

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Speaker 4: race into account and making important decisions. So this case

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Speaker 4: could definitely have a major effect on Section two litigation

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Speaker 4: going forward. The Government, for its part, argues that Section

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Speaker 4: two's results tests is unconstitutional if it requires the states

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Speaker 4: to draw majority minority districts where race predominates, and that

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Speaker 4: basically what a planet has to show to prevail under

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Speaker 4: its view of the Voting Rights Act, as it must

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Speaker 4: show that the new district is superior under race neutral

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Speaker 4: districting principles. So the Voting Rights Act is one area

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Speaker 4: where We've seen some consequential decisions in the past few years,

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Speaker 4: and this is a case that definitely should be followed closely.

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Speaker 1: The Court gutted part of the Voting Rights Act in

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Speaker 1: the Shelby County versus Holder case in twenty thirteen, and

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Speaker 1: some justices have questioned the constitutionality of race based districts.

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Speaker 1: A quote the challenges used here was one from Justice

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Speaker 1: Brett kavanav the authority to conduct race based cannot extend

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Speaker 1: indefinitely into the future. Does it seem as if the

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Speaker 1: Court is heading in that direction to get rid of

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Speaker 1: the consideration of race in map drilling.

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Speaker 4: Well, the hesitation and reluctance and hostility to consideration of

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Speaker 4: race in a number of areas, including affirmative action and

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Speaker 4: the like, has definitely been one of the sort of

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Speaker 4: emphasises of this court. Interestingly, the Court just a couple

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Speaker 4: of years ago, in a case on Alabama, by a

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Speaker 4: five to four vote with the Chief Justice and the

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Speaker 4: majority joined by the more liberal justices and Justice Kavanaugh,

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Speaker 4: upheld a map that was challenged out of Alabama. So

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Speaker 4: it would be something of a right turn for the

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Speaker 4: Court to go ahead and validate section two the voting

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Speaker 4: rights act on constitutional grounds more broadly, and we don't know.

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Speaker 4: I think, based on the fact that the Court was

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Speaker 4: unable to reach a decision last term in this case,

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Speaker 4: it suggests that the justices are struggling. The fact that

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Speaker 4: they've added this broader constitutional question doesn't mean that the

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Speaker 4: Justices have to resolve it on that basis. I think

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Speaker 4: if there's anything we can sort of speculate at this

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Speaker 4: point is that the Justices are closely divided on this issue.

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Speaker 1: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 1: this conversation with Gregory gar former US Solicitor General. We'll

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Speaker 1: discuss upcoming cases on transgender rights, religious rights, copyright, and

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Speaker 1: capital punishment. I'm June Grosso, and you're listening to Bloomberg.

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Speaker 1: Lindsay Heacox is a college senior and transgender woman who

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Speaker 1: participates in club level running in soccer at Boise State University.

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Speaker 1: Heacock says that she should have the opportunity to play

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Speaker 1: sports like everyone else.

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Speaker 4: I don't even think most of my teammates would even

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Speaker 4: think of me as trans. I just look like a

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Speaker 4: regular girl.

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Speaker 1: But in twenty twenty, Idaho passed the first law of

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Speaker 1: its kind barring transgender women and girls from participating on

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Speaker 1: all female teams starting in grade school. The Ninth Circuit

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Speaker 1: Court of Appeals ruled that the law couldn't be enforced

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Speaker 1: against Heacock's but now her case, along with that of

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Speaker 1: a fifteen year old transgender girl from West Virginia, is

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Speaker 1: before the Supreme Court. I've been talking to former United

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Speaker 1: States Solicitor General Gregory Garr, a partner at Latham and Watkins.

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Speaker 1: So greg, the Supreme Court sort is going to decide

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Speaker 1: whether states can ban transgender girls and women from competing

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Speaker 1: for their schools on female athletic teams. The appeals are

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Speaker 1: from the Fourth Circuit and the Ninth Circuit, which blocked

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Speaker 1: the states of West Virginia and Idaho from fully enforcing

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Speaker 1: their bans. But the Fourth Circuit's decision was based on

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Speaker 1: Title nine and the Ninth Circuit's decision was based on

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Speaker 1: the Equal Protection Clause.

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Speaker 4: So it wouldn't be a Supreme Court term with that.

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Speaker 4: A return to the culture wars in this case definitely

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Speaker 4: presents that, and the cases from both circuits do present

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Speaker 4: the different questions of the Equal Protection Clause in Title

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Speaker 4: nine and challenges to the validity of state laws that

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Speaker 4: prohibit transgender girls and women from competing in girls and

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Speaker 4: women's sports. These are laws that I think about half

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Speaker 4: of the states have, and the main legal question in

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Speaker 4: the case is whether it's sex discrimination when a state

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Speaker 4: mandates that only biological females can compete in female sports.

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Speaker 4: Both cases involve transgender girls who want to compete on

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Speaker 4: female cross country teams. So last year, as you remember,

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Speaker 4: in US versus Scurmetti, the Court held that a Tennessee

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Speaker 4: law banning puberty blockers and homeowned therapy for transgender miners

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Speaker 4: did not engage in sex based discrimination, violating the Equal

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Speaker 4: Protection Clause, and it seems likely that the courtal reached

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Speaker 4: a similar conclusion here. In fact, picking up on Justice

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Speaker 4: Ginsberg's own writings, the government argues that the laws here

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Speaker 4: simply take into account the physical differences between men and women,

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Speaker 4: and that therefore they don't really engage in impermissible discrimination

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Speaker 4: to begin with. Now that plaintiffs sort of counter with

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Speaker 4: the Supreme Court's decision in boss Stock versus Clayton County,

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Speaker 4: where the Court held the discrimination based on gender or

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Speaker 4: sexual identity is discrimination on the basis of sex under

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Speaker 4: Title seven. But the Supreme Court distinguished, and I think

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Speaker 4: limited boss Stock and the Scurmetti case last year, and

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Speaker 4: I think that challengers probably have a hard argument in

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Speaker 4: pushing BASTA to the Supreme Court. In this case, the

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Speaker 4: supporters of these laws also argue that allowing biological males

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Speaker 4: to compete in women's sports would defeat the whole purpose

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Speaker 4: of Title nine. So you know, this is again one

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Speaker 4: of these cases that really sort of hits hard on

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Speaker 4: the culture wars, and the Court I think will be

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Speaker 4: following up Byette's decision last year in Screametti and we'll

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Speaker 4: see what it does.

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Speaker 1: Twenty seven states have laws or regulations that restrict transgender

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Speaker 1: student athletes.

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Speaker 3: So if the Court upholds the state.

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Speaker 1: Bans in these cases, would all those laws then be

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Speaker 1: valid or does it depend on what they say the

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Speaker 1: exact wording.

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Speaker 4: Well, it depends on what they say. But I think,

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Speaker 4: you know, as a general matter, this is an up

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Speaker 4: or down question. I mean, I think if the Court

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Speaker 4: holds that the laws in the two cases here are

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Speaker 4: constitutional and don't violate Time nine, then I think that

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Speaker 4: the other laws will almost certainly pass muster as well, And.

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Speaker 1: It also wouldn't be a Supreme Court term without a

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Speaker 1: religious rights case. A Rastafarian wants to suit prison officials

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Speaker 1: in Louisiana who forcibly shaved him bald in violation of

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Speaker 1: his religious beliefs. The Court has considered a lot of

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Speaker 1: cases involving the rights of Christians, but I don't know

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Speaker 1: of any until now involving the rights of Rastafarians.

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Speaker 4: Yeah, and the course has been very active in the

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Speaker 4: area of religion recently, and you know, generally as sided

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Speaker 4: with proponents of religious liberty. The facts of this case

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Speaker 4: are really pretty extreme and outrageous. In this case is

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Speaker 4: brought by a Rastafarian, Immey, who is suiting a state

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Speaker 4: prison official under what's called the Religious land Use in

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Speaker 4: Institutional Persons Act or ur LUPA, and he claims that

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Speaker 4: when he was transferred to a new prison, the prison

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Speaker 4: official allegedly handcuffed him to a chair and actually shaved

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Speaker 4: his head, even though he told the guard that he

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Speaker 4: had taken religious vow not to cut off his hair,

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Speaker 4: which he had honored for over a decade, and actually

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Speaker 4: handed the guard a copy of a Fifth Circuit decision

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Speaker 4: holding that cutting the hair of a Rastafarian inmate would

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Speaker 4: violate the inmate's religious liberties, so that the inmate brought

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Speaker 4: suit seeking monetary damages against the prison officials involved in

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Speaker 4: this process. So under a different law, the Religious Freedom

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Speaker 4: Restoration Act, the Supreme Court is held that inmates can

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Speaker 4: get money damages against federal officers who violate their religious liberties.

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Speaker 4: And so the basic questions whether the same rule would

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Speaker 4: apply to the state officers under our LUPA the parallel statute,

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Speaker 4: and it would seem like the answer would have to

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Speaker 4: be yes. But the state argues that because our LUPA

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Speaker 4: was passed under Congress's spending Clause power, where Congress generally

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Speaker 4: attaches strings to federal funding grants, the state argues that

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Speaker 4: a different rule applies because the state has never agreed

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Speaker 4: to these sorts of terms to be subjected to money

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Speaker 4: to damages suits. And then the state also argues that

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Speaker 4: if the court accepts the inmate's position, it's going to

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Speaker 4: only exacerbate the shortage of people who are willing to

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Speaker 4: serve as prison guards. I'm not sure that that's going

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Speaker 4: to be enough here. I mean, I think that the

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Speaker 4: facts of this case in particular may weigh in the

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Speaker 4: Court and the Trump administration. Here is actually supporting the

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Speaker 4: inmate in this case, so that the state may have

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Speaker 4: an uphill battle in his hands. But we'll see.

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Speaker 1: And it was the Fifth Circuit that threw out his lawsuit,

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Speaker 1: even though it was a Fifth Circuit decision that he

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Speaker 1: was bending about.

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Speaker 4: Yeah. Well, and really, at this point, it's the separate

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Speaker 4: question of not whether the law is violated, but whether

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Speaker 4: he could get monetary damages. And in fairness to the state,

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Speaker 4: most of the lower courts had held to this point

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Speaker 4: that you cannot get monetary damages against the prison official

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Speaker 4: under or LUPA. So it's definitely interesting that the court

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Speaker 4: agreed to take the case.

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Speaker 1: Nevertheless, so the court is going to hear another death

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Speaker 1: penalty case. It hurt a couple last term. This time

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Speaker 1: it's about what defendants have to show in order to

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Speaker 1: prove that they're mentally disabled and thus ineligible for the

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Speaker 1: death penalty.

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Speaker 4: Yeah, and the death totally has actually been a pretty

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Speaker 4: interesting area for this court. Last term it had three

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Speaker 4: death penalty cases and the death row inmate won in

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Speaker 4: all three of those cases. And so this term, as

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Speaker 4: you said, it's revisiting the constitutional limits on the execution

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Speaker 4: of intellectually disabled individuals. In a case called Atkins versus Virginia,

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Speaker 4: the court held at the eighth Amendment prohibits the execution

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Speaker 4: of individuals who are intellectually disabled, which has generally been

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Speaker 4: defined to mean someone having an IQ of seventy or below.

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Speaker 4: And so the question in this case is what are

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Speaker 4: court's supposed to do when they're presented with multiple IQ scores,

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Speaker 4: one of which falls below the line. And in this case,

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Speaker 4: the inmate had multiple IQ scores of seventy five, seventy four,

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Speaker 4: seventy two, seventy eight, and seventy four again, and so

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Speaker 4: all five of these scores were above seventy. Of the scores,

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Speaker 4: the seventy two actually falls below the line if you

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Speaker 4: accept the standard range for err, which would put his

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Speaker 4: score at sixty nine. The Court of Appeals nevertheless held

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Speaker 4: that the death sentence should be set aside. The inmate

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Speaker 4: argues that it was right and that you could actually

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Speaker 4: just look beyond the low IQ score and if you

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Speaker 4: looked sort of holistically at the evidence, including testimony about

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Speaker 4: the inmates intellectual disability, that it was unconstitutional to execute him.

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Speaker 4: But the state argues that the fact that there are

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Speaker 4: so many scores above seventy should be in itself decisive,

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Speaker 4: and that this is an area where the courts should

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Speaker 4: defer to the state's judgment, at least where it's based

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Speaker 4: on multiple ice Q scores about seventy. So it's an

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Speaker 4: interesting question. And again, I mean this court, you know,

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Speaker 4: maybe a little bit against what some might expect, has

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Speaker 4: actually been more receptive to the claims of death row inmates.

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Speaker 4: But we'll see if less terms run of successes carries

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Speaker 4: over into this.

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Speaker 1: The last on our list, but certainly not least a

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Speaker 1: one billion dollar jury verdict is at issue. The Supreme

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Speaker 1: Court is going to consider shielding Cox Communications from a

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Speaker 1: one billion dollar lawsuit by the music industry.

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Speaker 4: Yeah, finally we get to a business case, and the

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Speaker 4: court every once in a while to size one of those.

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Speaker 4: So that this case involves the important copyright question of

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Speaker 4: whether an Internet service provider can be held contributorially liable

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Speaker 4: for its customers act of copyright infringement. So the internet

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Speaker 4: service provider allows streaming and someone at his home improperly

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Speaker 4: downloads music. The Court of Appeals held that a culpable

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Speaker 4: intent to facilitate infringement could be inferred simply on the

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Speaker 4: basis that the internet service provider continued to provide services

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Speaker 4: after it knew that those services were being used to

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Speaker 4: commit direct infringement, and with the challengers argued here pointing

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Speaker 4: to prior Supreme Court precedent this area is that near

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Speaker 4: knowledge of an actual infringing use is insufficient to impose

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Speaker 4: secondary liability on the seller of goods or services, and

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Speaker 4: that instead what the copyright infringement law requires is a

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Speaker 4: culpable intent to facilitate direct infringement, which is what the

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Speaker 4: plane of much show, and that would be like evidence

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Speaker 4: that the merchant urged another to infringe or actually set

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Speaker 4: up a platform that lacked any significant non infringing uses

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Speaker 4: anything apart from that. The internet service provider Cox Communication

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Speaker 4: here argues it would create a substantial disincentive for the

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Speaker 4: provision of universal Internet service, which could affect all of us,

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Speaker 4: or at least anyone in a home or a teenager

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Speaker 4: has improperly downloaded music.

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Speaker 3: But yet a jury found against Cox.

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Speaker 4: Yeah, a jury found against Cox and held it liable

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Speaker 4: for a billion dollars in damages. So it's a really

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Speaker 4: big deal for internet services providers. Trump supported review in

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Speaker 4: this case, and it certainly is one of the most

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Speaker 4: important business cases pending before the court.

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Speaker 1: The Court's going to be accepting more cases as the

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Speaker 1: term goes along.

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Speaker 3: You have the shadow dock. It's so active.

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Speaker 1: But do you think that in the end this term

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Speaker 1: is going to be you know, the headlines afterwards will

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Speaker 1: be about the expansion or perhaps limitation of presidential power.

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Speaker 4: No question, one of the big sort of headline questions

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Speaker 4: of this term will be the exercise of executive power.

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Speaker 4: I mean, we have an administration that is boldly exercising

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Speaker 4: executive power across the number of fronts, and those cases

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00:27:39,520 --> 00:27:41,960
Speaker 4: are now coming to the Supreme Court. So I think

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Speaker 4: that it's likely that that will be one of the

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Speaker 4: headlines of this term. Whether the headline is that the

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Speaker 4: president has succeeded in expanding executive power or that the

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Speaker 4: Supreme Court has pushed back against assertions of executive power,

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Speaker 4: we don't know. There are a number of really important

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Speaker 4: case is already on the docket, and as you indicated,

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Speaker 4: there are more cases in the pipeline, in the emergency

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Speaker 4: docket and otherwise, and if you go back over the

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Speaker 4: last couple of terms, you know many of the most

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Speaker 4: important cases are added to the Court's docket after this

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Speaker 4: point in time, so this is really just the tip

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Speaker 4: of the iceberg.

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Speaker 1: Thanks for spending so much time with me, Greg, I

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Speaker 1: always enjoy our yearly previews of the Supreme Court term.

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Speaker 1: That's former US Solicitor General Gregory Garr, a partner at

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Speaker 1: Latham and Watkins. And that's it for this edition of

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Speaker 1: the Bloomberg Law Show. Remember you can always get the

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Speaker 1: latest legal news on our Bloomberg Law Podcast. You can

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Speaker 1: find them on Apple Podcasts, Spotify, and at www dot

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Speaker 1: Bloomberg dot com slash podcast Slash Law, and remember to

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00:28:45,560 --> 00:28:48,600
Speaker 1: tune into The Bloomberg Law Show every weeknight at ten

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Speaker 1: pm Wall Street Time. I'm Jim Grosso, and you're listening

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Speaker 1: to Bloomberg