1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio 2 00:00:12,520 --> 00:00:24,960 Speaker 1: Who Knows what lecks in the hearts of Men? From 3 00:00:24,960 --> 00:00:28,240 Speaker 1: the Old Time radio show to later TV and movies, 4 00:00:28,640 --> 00:00:33,320 Speaker 1: the shadow always sounded mysterious and secretive. Fast forward to 5 00:00:33,360 --> 00:00:37,440 Speaker 1: the shadow docket, which also sounds secretive and opaque, and 6 00:00:37,520 --> 00:00:41,479 Speaker 1: in a sense it is emergency orders of the Supreme Court, 7 00:00:41,840 --> 00:00:47,040 Speaker 1: short and unsigned, issued outside normal procedures, without oral arguments 8 00:00:47,120 --> 00:00:50,879 Speaker 1: or a full briefing, often late at night and without explanation. 9 00:00:51,200 --> 00:00:54,440 Speaker 1: While the shadow docket certainly isn't new, it has grown 10 00:00:54,480 --> 00:00:58,240 Speaker 1: in size and significance. Any Coney Barrett is probably the 11 00:00:58,280 --> 00:01:00,520 Speaker 1: first justice to be asked to out it in your 12 00:01:00,560 --> 00:01:04,560 Speaker 1: confirmation hearings. You know, the shadow docket has become a 13 00:01:04,600 --> 00:01:07,000 Speaker 1: hot topic in the last couple of years. But you know, 14 00:01:07,080 --> 00:01:10,679 Speaker 1: even when I was clicking on the court, it was 15 00:01:10,760 --> 00:01:14,160 Speaker 1: not typical for the Court to issue opinions explaining why 16 00:01:14,200 --> 00:01:17,039 Speaker 1: Sart was denied. Joining me is Steve in Plantic, a 17 00:01:17,080 --> 00:01:19,960 Speaker 1: professor at the University of Checksis Law School who has 18 00:01:19,959 --> 00:01:23,560 Speaker 1: written extensively about the shadow docket. Steve explained what the 19 00:01:23,560 --> 00:01:27,840 Speaker 1: shadow docket is. It's a evocative term for what is 20 00:01:27,920 --> 00:01:31,320 Speaker 1: usually a pretty mundane part of the Supreme Court caseload. 21 00:01:31,560 --> 00:01:34,959 Speaker 1: It was coined by Chicago law professor Will bode In 22 00:01:36,200 --> 00:01:38,720 Speaker 1: basically just to describe all of the orders that the 23 00:01:38,760 --> 00:01:42,640 Speaker 1: Court hands down, So the non merit decision, the technical 24 00:01:42,680 --> 00:01:46,120 Speaker 1: stuff that court does when controlling its docket. And I 25 00:01:46,160 --> 00:01:49,560 Speaker 1: think the reason why it has become more pejorative and 26 00:01:49,680 --> 00:01:52,800 Speaker 1: less evocative is because the Court in the last four 27 00:01:52,840 --> 00:01:56,120 Speaker 1: or five years has been doing a lot more substantive 28 00:01:56,160 --> 00:01:58,240 Speaker 1: stuff on the shadow docket, where what used to be 29 00:01:58,320 --> 00:02:02,440 Speaker 1: primarily Anna Dine usual orders that nobody cared about are 30 00:02:02,440 --> 00:02:04,720 Speaker 1: all of a sudden, a much larger chunk of orders 31 00:02:04,880 --> 00:02:07,680 Speaker 1: having stuff into effects not just on the parties before 32 00:02:07,720 --> 00:02:09,840 Speaker 1: the Supreme corport on like lots and lots of people 33 00:02:09,880 --> 00:02:13,200 Speaker 1: as well. Of course, on Thursday, the Supreme Court refused 34 00:02:13,240 --> 00:02:16,320 Speaker 1: to block the Texas abortion law in its shadow docket. 35 00:02:16,520 --> 00:02:19,560 Speaker 1: But let's focus on the two decisions last week that 36 00:02:19,840 --> 00:02:24,200 Speaker 1: ordered the Biden administration to change course, each with huge 37 00:02:24,280 --> 00:02:28,520 Speaker 1: dramifications involving the migrant protection protocols known as Remain in 38 00:02:28,560 --> 00:02:34,839 Speaker 1: Mexico and the c DCS eviction moratorium. What are the implications, Well, 39 00:02:34,880 --> 00:02:36,680 Speaker 1: I mean, I think we saw last week with the 40 00:02:36,760 --> 00:02:40,320 Speaker 1: mt P case and the eviction moratorium, just how much 41 00:02:40,680 --> 00:02:44,239 Speaker 1: these rulings June can affect people. So MPP, now we're 42 00:02:44,280 --> 00:02:47,840 Speaker 1: having the federal government being required to restitute immigration policies, 43 00:02:47,840 --> 00:02:51,200 Speaker 1: can require potentially hundreds of thousands of style and applicants 44 00:02:51,240 --> 00:02:55,000 Speaker 1: to pursue their applications from Mexico. Obviously, the eviction moratorium 45 00:02:55,040 --> 00:02:58,480 Speaker 1: directly affects millions of Americans. And so I think there's 46 00:02:58,480 --> 00:03:01,240 Speaker 1: sort of two pieces to the quick seek He's one 47 00:03:01,560 --> 00:03:03,480 Speaker 1: is that if the court is going to be handing 48 00:03:03,520 --> 00:03:06,320 Speaker 1: down decisions with such broad effects, it really needs to 49 00:03:06,320 --> 00:03:09,280 Speaker 1: do a better job explaining itself. And the MP Pece 50 00:03:09,320 --> 00:03:12,160 Speaker 1: cases of an example, we've got basically one sense of 51 00:03:12,360 --> 00:03:14,919 Speaker 1: analysis as to why the court ordered what it did. 52 00:03:15,320 --> 00:03:17,080 Speaker 1: But Jude, I think the second part is, you know, 53 00:03:17,240 --> 00:03:19,320 Speaker 1: in the eviction moratory of case, where the court actually 54 00:03:19,320 --> 00:03:23,320 Speaker 1: did explain itself, it still seems problematic. That's such a 55 00:03:23,320 --> 00:03:26,840 Speaker 1: major issue effect that millions of people is being decided 56 00:03:26,960 --> 00:03:32,240 Speaker 1: incredibly quickly, under rushed circumstances, with really only the skimpiest 57 00:03:32,400 --> 00:03:35,600 Speaker 1: level of briefing, with no oral argument, and in a 58 00:03:35,680 --> 00:03:39,040 Speaker 1: context where I think frankly the Court has not historically 59 00:03:39,040 --> 00:03:41,320 Speaker 1: been at its best, and so I think the pressure 60 00:03:41,360 --> 00:03:43,920 Speaker 1: on the justices is not just to be more transparent 61 00:03:44,200 --> 00:03:46,839 Speaker 1: when handing down these rulings, but also to be more 62 00:03:46,960 --> 00:03:50,560 Speaker 1: thorough and provide as much of an opportunity for involvement 63 00:03:50,600 --> 00:03:53,640 Speaker 1: for plenary review, provided thorough going and explanation for what 64 00:03:53,680 --> 00:03:56,560 Speaker 1: it's doing, so that it's keeping with what we tend 65 00:03:56,600 --> 00:03:59,560 Speaker 1: to think of as principles of responsible judicial decision making. 66 00:04:00,320 --> 00:04:03,080 Speaker 1: They're supposed to be a showing of irreparable harm to 67 00:04:03,160 --> 00:04:05,360 Speaker 1: the court, right if the Court takes the case on 68 00:04:05,400 --> 00:04:09,240 Speaker 1: an emergency basis. In these two cases, where was the 69 00:04:09,280 --> 00:04:12,080 Speaker 1: irreparable harm if the Court didn't act, You know, the 70 00:04:12,120 --> 00:04:17,600 Speaker 1: Court could have certainly waited on reinstituting the Trump Remained 71 00:04:17,600 --> 00:04:20,520 Speaker 1: in Mexico policy. Well, and I think I think in 72 00:04:20,560 --> 00:04:23,719 Speaker 1: both cases there actually was a pretty good argument for 73 00:04:23,960 --> 00:04:26,760 Speaker 1: the Court moving. I mean, so in the MPP case, 74 00:04:27,160 --> 00:04:29,680 Speaker 1: you know, the Biden administration was basically being ordered to 75 00:04:30,520 --> 00:04:33,320 Speaker 1: um to rescue this policy right away. You know, if 76 00:04:33,360 --> 00:04:35,760 Speaker 1: anything I said that should have augured in favor of 77 00:04:36,000 --> 00:04:38,480 Speaker 1: slowing things down if I'm the Supreme Court, and so, 78 00:04:38,800 --> 00:04:42,799 Speaker 1: you know, by not grant him the Biden administration's application 79 00:04:42,880 --> 00:04:46,920 Speaker 1: for a stay. I think the court exacerbated that urgency 80 00:04:46,920 --> 00:04:50,000 Speaker 1: and that exigency the eventually moratorium in Jude. Frankly, I 81 00:04:50,000 --> 00:04:51,839 Speaker 1: think it's a harder case because I think there's harms 82 00:04:51,839 --> 00:04:55,880 Speaker 1: on both sides. Um there's the obvious harms to landlords 83 00:04:56,480 --> 00:04:58,040 Speaker 1: who you know, I think many of whom have had 84 00:04:58,080 --> 00:05:01,359 Speaker 1: trouble recouping the funds that the government has made available 85 00:05:01,400 --> 00:05:04,080 Speaker 1: to try to offset the effects the effects of the moratorium. 86 00:05:04,440 --> 00:05:06,040 Speaker 1: And of course there's the obvious part of the folks 87 00:05:06,080 --> 00:05:08,719 Speaker 1: who risk now being thrown on the streets. I think 88 00:05:08,800 --> 00:05:13,440 Speaker 1: the problem runs much deeper than those two cases. The 89 00:05:13,480 --> 00:05:17,440 Speaker 1: problem is that the Court has increasingly tilted the scales 90 00:05:17,560 --> 00:05:20,800 Speaker 1: when it looks at the equities towards the party it's 91 00:05:20,839 --> 00:05:23,800 Speaker 1: more sympathetic to on the merit. So that you know 92 00:05:23,839 --> 00:05:26,719 Speaker 1: the fact that an mp P you have potentially hundreds 93 00:05:26,720 --> 00:05:29,600 Speaker 1: of thousands of a stylum applicants who now faced the 94 00:05:29,720 --> 00:05:32,839 Speaker 1: very real physical risk that comes with being in Mexico 95 00:05:32,920 --> 00:05:35,240 Speaker 1: and the very real risk that it will prejudice their 96 00:05:35,240 --> 00:05:37,520 Speaker 1: ability to apply for asylum. That seems to be no 97 00:05:37,600 --> 00:05:40,560 Speaker 1: never mind to the Court's analysis, and I think that's 98 00:05:40,560 --> 00:05:43,000 Speaker 1: the real concern is that one of two things is true. 99 00:05:43,040 --> 00:05:46,440 Speaker 1: Either that's disappeared from the Court's analysis and that has 100 00:05:46,480 --> 00:05:48,760 Speaker 1: problems of its own, or it's not that the Court 101 00:05:48,800 --> 00:05:51,160 Speaker 1: is doing a wealthfully poor job to explain in itself. 102 00:05:51,320 --> 00:05:53,320 Speaker 1: And so, you know, I think the there's sort of 103 00:05:53,320 --> 00:05:57,200 Speaker 1: different layers to what people find problematic about the shadow docket. 104 00:05:57,240 --> 00:06:00,200 Speaker 1: I think the lowest tending fruit is the insta fresh 105 00:06:00,200 --> 00:06:02,520 Speaker 1: and explanations from the justices for why their ruling the 106 00:06:02,520 --> 00:06:08,279 Speaker 1: way they are with the migrant protection protocols. There, the 107 00:06:08,360 --> 00:06:12,440 Speaker 1: Court is telling the Biden administration that it has to 108 00:06:12,600 --> 00:06:15,720 Speaker 1: change its policy. You know, a policy that hasn't been 109 00:06:15,839 --> 00:06:17,800 Speaker 1: used in more than a year, wasn't even used at 110 00:06:17,839 --> 00:06:21,040 Speaker 1: the end of the Trump administration. That seems like a 111 00:06:21,080 --> 00:06:26,560 Speaker 1: big step to take in an emergency procedure. I think 112 00:06:26,560 --> 00:06:28,160 Speaker 1: it's an enormous step to take. I think, you know, 113 00:06:28,279 --> 00:06:30,839 Speaker 1: the tricky part here is that we saw over and 114 00:06:30,839 --> 00:06:34,240 Speaker 1: over agains are on the Trump administration, the Court actually 115 00:06:34,600 --> 00:06:39,840 Speaker 1: moving quite aggressively to stop lower courts that had blocked 116 00:06:40,200 --> 00:06:43,000 Speaker 1: Trump administration immigration policies. That immigration is actually one of 117 00:06:43,000 --> 00:06:45,440 Speaker 1: the most fertile areas of the shadow docket, or the 118 00:06:45,440 --> 00:06:48,560 Speaker 1: trum administration. There were at least eleven different times where 119 00:06:48,640 --> 00:06:51,919 Speaker 1: lower courts had blocked Trump immigration policies and the Supreme 120 00:06:51,920 --> 00:06:55,280 Speaker 1: Court froze the lower courts injunction. So I think the 121 00:06:55,640 --> 00:06:58,360 Speaker 1: irony of the MPP ruling is it really drives home 122 00:06:58,960 --> 00:07:03,840 Speaker 1: just how partisans these rulings appear, and just how ideological 123 00:07:03,920 --> 00:07:07,799 Speaker 1: they've become, because the same deference that the Court showed 124 00:07:07,839 --> 00:07:11,080 Speaker 1: towards the executive branch when it came to immigration policy 125 00:07:11,200 --> 00:07:13,800 Speaker 1: under a Republican president all of a sudden seemed to 126 00:07:13,840 --> 00:07:16,920 Speaker 1: disappear when it comes to immigration policy and or democratic 127 00:07:16,960 --> 00:07:19,840 Speaker 1: president and June Again, I think this goes back to 128 00:07:19,880 --> 00:07:23,400 Speaker 1: the larger point, which is, if the court explained itself, 129 00:07:23,920 --> 00:07:26,720 Speaker 1: it would be harder for folks to raise that concern. 130 00:07:26,760 --> 00:07:28,800 Speaker 1: It would be harder for folks to level that charge. 131 00:07:29,240 --> 00:07:32,000 Speaker 1: But when you couple the appearance of that kind of 132 00:07:32,000 --> 00:07:35,760 Speaker 1: favoritism with the Court's refusal to actually provide an explanation, 133 00:07:36,360 --> 00:07:39,800 Speaker 1: that's what makes this certainly look so insidious, whether in 134 00:07:39,880 --> 00:07:42,840 Speaker 1: fact it really is. What about the fact that there 135 00:07:42,880 --> 00:07:45,840 Speaker 1: isn't a full briefing in these and there aren't oral 136 00:07:45,960 --> 00:07:49,160 Speaker 1: arguments in these. I mean, so you know, I think 137 00:07:49,320 --> 00:07:51,600 Speaker 1: folks who are who are sort of defenders of what 138 00:07:51,640 --> 00:07:54,120 Speaker 1: the Supreme Court has been doing. I think too often 139 00:07:54,920 --> 00:07:57,520 Speaker 1: caricature critics like me and say that, like we just said, 140 00:07:57,560 --> 00:07:59,080 Speaker 1: there shouldn't be a show doctor at all, That's just 141 00:07:59,160 --> 00:08:01,600 Speaker 1: not true. I mean sense, no one disputes that there's 142 00:08:01,640 --> 00:08:04,400 Speaker 1: a need for the Supreme Court to have the ability 143 00:08:04,760 --> 00:08:08,800 Speaker 1: to issue emergency relief in extraordinary circumstances. I think the 144 00:08:08,840 --> 00:08:11,400 Speaker 1: way that it has gotten a bit out of hands 145 00:08:12,120 --> 00:08:15,840 Speaker 1: is how far that release is running beyond the parties. 146 00:08:15,880 --> 00:08:18,880 Speaker 1: Where we've seen the Supreme Court already seven times this 147 00:08:19,080 --> 00:08:23,480 Speaker 1: term blocked by it delt state policies and through emergency 148 00:08:23,480 --> 00:08:26,120 Speaker 1: injunctions when it had only issued four of those in 149 00:08:26,200 --> 00:08:29,400 Speaker 1: John Roberts's first fifty years. Is chief justice right where 150 00:08:29,640 --> 00:08:33,000 Speaker 1: the Court itself is basically going out of its way 151 00:08:33,400 --> 00:08:36,040 Speaker 1: not just to sort of temporarily protect the rights of 152 00:08:36,080 --> 00:08:40,079 Speaker 1: the parties in a case, but actually to control government 153 00:08:40,120 --> 00:08:43,280 Speaker 1: policies large while the case works its way through the court. 154 00:08:43,800 --> 00:08:46,160 Speaker 1: And I think that's the part of the shadow doctors 155 00:08:46,160 --> 00:08:50,000 Speaker 1: that is to me the most problematic, because that's where 156 00:08:50,000 --> 00:08:53,560 Speaker 1: you have all of these transparency, legitimacy concerns It's not 157 00:08:53,640 --> 00:08:55,840 Speaker 1: that we since the Court should lack the ability to 158 00:08:55,880 --> 00:08:59,280 Speaker 1: issue emergency ruling. It's that we think emergency ruling should 159 00:08:59,320 --> 00:09:03,600 Speaker 1: be narrowly or subscribed and not be in the business 160 00:09:03,720 --> 00:09:08,679 Speaker 1: of making broad new pronouncements about the substance of federal law. 161 00:09:08,720 --> 00:09:12,720 Speaker 1: Do these decisions have the same presidential authority? I mean, 162 00:09:12,800 --> 00:09:16,040 Speaker 1: can courts cite them as precedent in the same way 163 00:09:16,080 --> 00:09:19,200 Speaker 1: they can with regular decisions of the Supreme Court on 164 00:09:19,240 --> 00:09:22,520 Speaker 1: the merits. That's another piece of the story too, is 165 00:09:22,679 --> 00:09:26,679 Speaker 1: historically the Supreme Court had insisted that these kinds of 166 00:09:26,760 --> 00:09:30,520 Speaker 1: rulings were not presidential, certainly, not if they came through 167 00:09:30,600 --> 00:09:33,400 Speaker 1: unsigned orders, and even not to the same extent if 168 00:09:33,400 --> 00:09:36,520 Speaker 1: they came with a majority opinion. And we've seen the 169 00:09:36,559 --> 00:09:39,160 Speaker 1: Court run away from that this term. So there's a 170 00:09:39,200 --> 00:09:42,839 Speaker 1: couple of examples in COVID cases where the Supreme Court 171 00:09:42,920 --> 00:09:48,119 Speaker 1: has treated unsigned orders as precedents find them the lower courts. 172 00:09:48,160 --> 00:09:51,640 Speaker 1: There's a decision from April called Tandon versus Newsom, where 173 00:09:51,720 --> 00:09:55,480 Speaker 1: at the end of the unsigned majority opinion, the Court 174 00:09:55,559 --> 00:09:59,800 Speaker 1: chastises the Ninth Circuit for refusing them to correctly read 175 00:10:00,360 --> 00:10:03,960 Speaker 1: the tea leads of four prior unsigned orders. So yeah, 176 00:10:04,000 --> 00:10:07,360 Speaker 1: I mean the justices themselves June are now treating not 177 00:10:07,520 --> 00:10:10,120 Speaker 1: just the opinions that are coming out of the shadow docket, 178 00:10:10,360 --> 00:10:14,240 Speaker 1: but even some of the unsigned orders as having precedential effect. 179 00:10:14,440 --> 00:10:16,360 Speaker 1: You know that it's more than just Biden the parties 180 00:10:16,360 --> 00:10:18,920 Speaker 1: that actually also should be followed by the lower courts. 181 00:10:19,000 --> 00:10:21,640 Speaker 1: Of course, that's an enormous problem unto itself, because if 182 00:10:21,679 --> 00:10:23,880 Speaker 1: all the Supreme Court is doing is given us one 183 00:10:23,920 --> 00:10:27,160 Speaker 1: sentence of explanation and telling us that that's precedent Jude, 184 00:10:27,200 --> 00:10:28,959 Speaker 1: it's not hard to see how people can be pretty 185 00:10:28,960 --> 00:10:31,880 Speaker 1: confused about exactly what precedent it is and what the 186 00:10:31,880 --> 00:10:34,240 Speaker 1: Supreme Court has actually told the lower courts to do. 187 00:10:34,640 --> 00:10:38,080 Speaker 1: When did we start to see this increase in emergency 188 00:10:38,280 --> 00:10:41,760 Speaker 1: orders in the shadow dockets, the up kick in emergency 189 00:10:41,840 --> 00:10:45,560 Speaker 1: applications June, we really see throwing the Trump administration. And 190 00:10:45,600 --> 00:10:48,240 Speaker 1: some of that is because of the Trump administration. I mean, 191 00:10:48,280 --> 00:10:51,719 Speaker 1: Trump files forty one applications for emergency relief from the 192 00:10:51,720 --> 00:10:54,520 Speaker 1: Supreme Court in four years, compared to a total of 193 00:10:54,640 --> 00:10:57,959 Speaker 1: eight in the previous sixteen years by the Obama and 194 00:10:58,000 --> 00:11:00,960 Speaker 1: Bush administrations combined. So that's the twenty old increase in 195 00:11:01,000 --> 00:11:03,160 Speaker 1: applications from the federal government. But it's not just the 196 00:11:03,160 --> 00:11:05,319 Speaker 1: federal governments in private party filing more and more of 197 00:11:05,320 --> 00:11:08,439 Speaker 1: these applications. And I think where we really see this 198 00:11:08,520 --> 00:11:13,120 Speaker 1: trend accelerate June is when Justice Kavanaugh replaced Justice Kennedy 199 00:11:13,320 --> 00:11:15,560 Speaker 1: in the summer of And I think there are some 200 00:11:15,600 --> 00:11:18,920 Speaker 1: pretty obvious explanations for that. You know, I think Justice Kennedy, 201 00:11:18,960 --> 00:11:21,920 Speaker 1: as you know, was, if not a moderate, at least 202 00:11:21,960 --> 00:11:24,880 Speaker 1: a moderate and influence on both of the sort of 203 00:11:24,920 --> 00:11:27,000 Speaker 1: wings of the court to his left and his right. 204 00:11:27,200 --> 00:11:30,120 Speaker 1: And with his departure, I think any procedural constraints that 205 00:11:30,200 --> 00:11:32,040 Speaker 1: might have come with that went with him. And so 206 00:11:32,080 --> 00:11:34,600 Speaker 1: now there's not only a solid conservative majority on the 207 00:11:34,640 --> 00:11:37,880 Speaker 1: merit of these cases, but also now a staali conservative 208 00:11:37,920 --> 00:11:42,839 Speaker 1: majority to use this procedural vehicle to basically effectively decide 209 00:11:42,880 --> 00:11:45,120 Speaker 1: those merits. So any of the data, no matter how 210 00:11:45,200 --> 00:11:48,200 Speaker 1: you slice it, you really see this phenomenon takeoff starting 211 00:11:48,200 --> 00:11:51,600 Speaker 1: with the court October eighteen term. You know, Justice Kavanaugh's 212 00:11:51,640 --> 00:11:53,760 Speaker 1: first on the bench. Is there a hint that some 213 00:11:53,840 --> 00:11:57,520 Speaker 1: of the justices have problems with the shadow docket In 214 00:11:57,600 --> 00:12:01,520 Speaker 1: the eviction case, Justice Stephen Briar referenced some of the 215 00:12:01,679 --> 00:12:05,400 Speaker 1: shadow docket criticism in his dissenting opinion. He said, these 216 00:12:05,480 --> 00:12:09,920 Speaker 1: questions call for considered decision making, informed by full briefing 217 00:12:10,000 --> 00:12:15,040 Speaker 1: and argument. Their answers impact the health of millions. Yeah, 218 00:12:15,040 --> 00:12:16,920 Speaker 1: I mean, so you know, that's I think the most 219 00:12:17,000 --> 00:12:19,760 Speaker 1: Justice Briar has said, at least in an opinion, to 220 00:12:19,840 --> 00:12:22,920 Speaker 1: criticize the shadow dockets. Um just the stood of my work, 221 00:12:23,000 --> 00:12:26,000 Speaker 1: perhaps not surprisingly has been much more outspoken. She's written 222 00:12:26,040 --> 00:12:28,160 Speaker 1: a couple of descents in these cases where she has 223 00:12:28,200 --> 00:12:32,240 Speaker 1: been quite critical of the conservative majority for how it 224 00:12:32,280 --> 00:12:34,600 Speaker 1: is to use the shadow docket. But you know, June, 225 00:12:34,720 --> 00:12:37,200 Speaker 1: these have been and far between, and I actually think 226 00:12:37,640 --> 00:12:40,360 Speaker 1: it's been you know, part of why this has been 227 00:12:40,360 --> 00:12:43,640 Speaker 1: flying under the radar is because to the state of 228 00:12:43,720 --> 00:12:47,560 Speaker 1: extent as the conservative justices, I think the more progressive 229 00:12:47,600 --> 00:12:51,319 Speaker 1: justices are fighting these cases on their merits. And so, 230 00:12:51,480 --> 00:12:53,960 Speaker 1: you know, a good example again is that Tandon religious 231 00:12:53,960 --> 00:12:57,320 Speaker 1: liberty case from April, where Justice Kagan writes this incredibly 232 00:12:57,360 --> 00:13:02,120 Speaker 1: powerful and incredibly sharp brief the sent about why you 233 00:13:02,200 --> 00:13:05,960 Speaker 1: just couldn't agree with the Supreme Court's interpretation of the 234 00:13:05,960 --> 00:13:09,360 Speaker 1: free exercise clause, but sort of allies, the fact that 235 00:13:09,400 --> 00:13:11,200 Speaker 1: the Court was doing this in the context of the 236 00:13:11,200 --> 00:13:13,720 Speaker 1: shadow docets we it's not supposed to UM and so 237 00:13:13,760 --> 00:13:16,040 Speaker 1: I think, you know, the procedural objections are starting to 238 00:13:16,120 --> 00:13:18,959 Speaker 1: get a bit louder from the left, but they've been 239 00:13:19,000 --> 00:13:21,360 Speaker 1: with the exception of Justice Sodomitory, they've been pretty tame 240 00:13:21,840 --> 00:13:24,040 Speaker 1: for much of the you know, sort of uptick and 241 00:13:24,080 --> 00:13:25,720 Speaker 1: for much of the first couple of years of this 242 00:13:25,840 --> 00:13:29,600 Speaker 1: of the rise of this pattern. What's the greatest concern 243 00:13:29,800 --> 00:13:34,960 Speaker 1: Is it the lack of transparency? Is it the rushed proceedings? 244 00:13:35,400 --> 00:13:39,880 Speaker 1: What's the greatest concern here for you or for other scholars? Um? 245 00:13:39,920 --> 00:13:43,040 Speaker 1: It's a really good question. I think the short answer 246 00:13:43,240 --> 00:13:46,360 Speaker 1: is um, all things equal. If I could be one 247 00:13:46,360 --> 00:13:48,440 Speaker 1: thing would be the transparency, if the justices would just 248 00:13:48,520 --> 00:13:51,200 Speaker 1: write more UM and so in that respect, I would 249 00:13:51,280 --> 00:13:54,319 Speaker 1: encourage folks to put side by side the MPP decision 250 00:13:54,320 --> 00:13:57,120 Speaker 1: and the eviction moratorium. You know, whatever you think of 251 00:13:57,160 --> 00:14:00,920 Speaker 1: the eviction moratorium ruling, we got eight pages of explanation 252 00:14:00,960 --> 00:14:03,760 Speaker 1: from the court identifying what the standard of review was, 253 00:14:03,840 --> 00:14:07,520 Speaker 1: identifying why, you know, they thought that the Alabama Association 254 00:14:07,559 --> 00:14:10,840 Speaker 1: of Realtors application statisfy that center of review. June. You 255 00:14:10,880 --> 00:14:13,040 Speaker 1: and I might disagree with some or all of that reasoning, 256 00:14:13,040 --> 00:14:14,920 Speaker 1: but at least we got it. And so you know, 257 00:14:15,000 --> 00:14:16,720 Speaker 1: there's lots of other stuff I'd like to fix, but 258 00:14:16,760 --> 00:14:18,880 Speaker 1: if there was one big thing, I just wish the 259 00:14:18,920 --> 00:14:22,320 Speaker 1: Court would explain itself a lot more often. Not because 260 00:14:22,320 --> 00:14:24,680 Speaker 1: we're going to agree with them, but because it's so 261 00:14:24,760 --> 00:14:26,920 Speaker 1: much better for everybody if we at least know why 262 00:14:27,000 --> 00:14:29,680 Speaker 1: the Court is doing what it's doing. Thanks Steve. That's 263 00:14:29,680 --> 00:14:32,880 Speaker 1: Professor Stephen Vladdock of the University of Texas Law School. 264 00:14:34,840 --> 00:14:38,040 Speaker 1: All right, Mr clinteen, let me ask you. Do you 265 00:14:38,080 --> 00:14:40,200 Speaker 1: think it's a juror you would be able to set 266 00:14:40,240 --> 00:14:43,400 Speaker 1: aside any prior opinion you might hold about the savings 267 00:14:43,440 --> 00:14:47,320 Speaker 1: alone industry? That was a question, sir, What do I 268 00:14:47,400 --> 00:14:50,960 Speaker 1: like banks? Your honor? May I have a minute place 269 00:14:50,960 --> 00:14:55,360 Speaker 1: to confer with my colleagues. You may dump them. Let's 270 00:14:55,360 --> 00:14:58,240 Speaker 1: get to number four six, and I'd say these number 271 00:14:58,240 --> 00:15:00,400 Speaker 1: twelve except the Crosscutor's gonna be done and do it 272 00:15:00,440 --> 00:15:03,960 Speaker 1: for us. In the movie The Devil's Advocate, Keyana Reeves 273 00:15:04,040 --> 00:15:07,320 Speaker 1: is a lawyer using peremptory challenges to get rid of 274 00:15:07,440 --> 00:15:09,920 Speaker 1: jurors without having to give a reason to the judge. 275 00:15:10,400 --> 00:15:13,680 Speaker 1: It's a tool both prosecutors and defense attorneys used to 276 00:15:13,720 --> 00:15:16,560 Speaker 1: get a jury they feel will be sympathetic to their case. 277 00:15:17,160 --> 00:15:22,400 Speaker 1: Now Arizona is taking a bold, unprecedented step. It's eliminating 278 00:15:22,400 --> 00:15:27,160 Speaker 1: peremptory challenges entirely, the first state to do so, embracing 279 00:15:27,160 --> 00:15:30,320 Speaker 1: a reform proposed by Justice third Goood Marshal more than 280 00:15:30,440 --> 00:15:33,720 Speaker 1: three decades ago as the only way to end racial 281 00:15:33,720 --> 00:15:38,000 Speaker 1: discrimination in jury selection. Joining me as former federal prosecutor 282 00:15:38,080 --> 00:15:43,320 Speaker 1: Robert Mintz, a partner macrter in English, start by telling 283 00:15:43,440 --> 00:15:48,960 Speaker 1: us about jury selection and URVOI dear who asked the questions, 284 00:15:49,120 --> 00:15:54,480 Speaker 1: just sort of give us the broad overview of jury selection. Sure, 285 00:15:55,200 --> 00:15:57,400 Speaker 1: the selection of a jury is one of the most 286 00:15:57,440 --> 00:16:02,200 Speaker 1: important phases of any criminal or civil trial because those 287 00:16:02,200 --> 00:16:05,920 Speaker 1: are the individuals will ultimately decide the case. And in 288 00:16:05,960 --> 00:16:09,440 Speaker 1: a criminal case, it's especially important because those are the 289 00:16:09,560 --> 00:16:13,440 Speaker 1: jurors who will have to decide unanimously as to whether 290 00:16:13,520 --> 00:16:16,520 Speaker 1: or not the defendant is guilty or not guilty, and 291 00:16:16,600 --> 00:16:19,960 Speaker 1: ultimately may go to jail, often for a long period 292 00:16:19,960 --> 00:16:23,200 Speaker 1: of time. So when you're a prosecutor and you're a 293 00:16:23,240 --> 00:16:26,480 Speaker 1: defense lawyer. The selection of the jury in a criminal 294 00:16:26,560 --> 00:16:29,800 Speaker 1: case is a vital part of the case. Prosecutors a 295 00:16:29,920 --> 00:16:33,480 Speaker 1: defense lawyers spend a lot of time questioning jurors and 296 00:16:33,600 --> 00:16:37,080 Speaker 1: trying to determine whether there is some kind of implicit bias, 297 00:16:37,080 --> 00:16:39,960 Speaker 1: either for or against the defendant if you're the defense 298 00:16:40,040 --> 00:16:43,480 Speaker 1: lawyer lawyer, or for or against the government if you're 299 00:16:43,480 --> 00:16:48,000 Speaker 1: the prosecutor. Typically, in both criminal and civil jury trials, 300 00:16:48,040 --> 00:16:51,680 Speaker 1: a court will assemble a panel of potential jurors that 301 00:16:51,840 --> 00:16:54,840 Speaker 1: is much larger than the actual number of jurors needed 302 00:16:54,920 --> 00:16:57,560 Speaker 1: to hear the case, and the reason for that is 303 00:16:57,800 --> 00:17:01,040 Speaker 1: that there is a long process picking a jury where 304 00:17:01,120 --> 00:17:03,600 Speaker 1: both lawyers from both sides of the case get to 305 00:17:03,640 --> 00:17:07,800 Speaker 1: ask a series of questions to jurors to determine whether 306 00:17:07,880 --> 00:17:11,040 Speaker 1: or not they believe that those jurors can be fair 307 00:17:11,080 --> 00:17:13,919 Speaker 1: and impartial and can give their client, whether it's the 308 00:17:14,000 --> 00:17:17,119 Speaker 1: United States if you're a prosecutor, or the state if 309 00:17:17,160 --> 00:17:20,000 Speaker 1: you're a prosecutor, or whether it's the defendant if you're 310 00:17:20,080 --> 00:17:23,159 Speaker 1: a defense lawyer, whether they can sit there here the 311 00:17:23,200 --> 00:17:26,360 Speaker 1: evidence and make a decision solely based on the evidence 312 00:17:26,400 --> 00:17:30,120 Speaker 1: that is presented in the courtroom and that their decision 313 00:17:30,160 --> 00:17:33,640 Speaker 1: will ultimately not be affected by any express or even 314 00:17:33,680 --> 00:17:37,520 Speaker 1: implicit biases that they may bring into the courtroom that 315 00:17:37,560 --> 00:17:41,840 Speaker 1: could possibly affect their decision. So explain the challenges for 316 00:17:42,000 --> 00:17:46,720 Speaker 1: cause and peremptory challenges. So. Although the rules vary from 317 00:17:46,760 --> 00:17:49,000 Speaker 1: state to state, and the federal system has its own 318 00:17:49,040 --> 00:17:51,680 Speaker 1: set of rules, the way the process works is that 319 00:17:51,800 --> 00:17:55,080 Speaker 1: lawyers on both sides get to ask a judge to 320 00:17:55,200 --> 00:17:59,240 Speaker 1: remove a juror for cause if they can articulate a 321 00:17:59,320 --> 00:18:02,679 Speaker 1: reason as to why they believe that cur cannot be 322 00:18:02,760 --> 00:18:06,000 Speaker 1: impartial and cannot fairly hear the evidence in the case. 323 00:18:06,600 --> 00:18:10,919 Speaker 1: Peremptory challenges allow lawyers to strike a juror for no 324 00:18:11,119 --> 00:18:14,320 Speaker 1: reason at all. Lawyers do not have to explain why 325 00:18:14,359 --> 00:18:16,600 Speaker 1: they're striking a juror. They do not have to be 326 00:18:16,640 --> 00:18:19,679 Speaker 1: able to convince the judge that the that the perspective 327 00:18:19,760 --> 00:18:22,840 Speaker 1: juror may not be fair. They can simply remove a 328 00:18:22,960 --> 00:18:26,320 Speaker 1: juror for any reason at all. The number of peremptory 329 00:18:26,400 --> 00:18:30,399 Speaker 1: challenges available to lawyers vary depending upon the system, depending 330 00:18:30,440 --> 00:18:33,159 Speaker 1: upon the state, depending upon the type of case, but 331 00:18:33,359 --> 00:18:37,600 Speaker 1: for federal felony trials, for example, prosecutors may strike up 332 00:18:37,640 --> 00:18:40,800 Speaker 1: to six cures for a peremptory basis, in other words, 333 00:18:40,800 --> 00:18:43,200 Speaker 1: for no reason at all, while the defense may strike 334 00:18:43,280 --> 00:18:47,359 Speaker 1: up to ten jurs on a peremptory basis, but under 335 00:18:47,400 --> 00:18:51,919 Speaker 1: the bats In case, if it's thought that discrimination is 336 00:18:51,960 --> 00:18:54,919 Speaker 1: the motive for a peremptory challenge, they can bring that 337 00:18:55,040 --> 00:18:59,359 Speaker 1: to the judge. There are few constitutional limits on these 338 00:18:59,400 --> 00:19:03,520 Speaker 1: peremptory challenges, but there is one constitutional limit that goes 339 00:19:03,560 --> 00:19:06,600 Speaker 1: back to a case called bats And versus Kentucky, which 340 00:19:06,640 --> 00:19:10,280 Speaker 1: was a Supreme Court case decided in Night six. In 341 00:19:10,320 --> 00:19:15,200 Speaker 1: that particular case, a black man was charged for burglary 342 00:19:15,240 --> 00:19:19,560 Speaker 1: and receipt of stolen goods. The prosecutor used these peremptory challenges, 343 00:19:19,600 --> 00:19:22,920 Speaker 1: in other words, without giving any basis whatsoever to suggest 344 00:19:22,960 --> 00:19:25,080 Speaker 1: that a juror would be it would not be able 345 00:19:25,080 --> 00:19:29,080 Speaker 1: to impartially decide the fate of the defendant, to eliminate 346 00:19:29,240 --> 00:19:33,600 Speaker 1: all four African American perspective jurors. The defendant in that 347 00:19:33,680 --> 00:19:36,920 Speaker 1: case was convicted, and then in the seven to two ruling, 348 00:19:36,960 --> 00:19:40,439 Speaker 1: the Supreme Court overturned the conviction and said that the 349 00:19:40,480 --> 00:19:44,679 Speaker 1: prosecutor's action unconstitutionally denied the defendant his right to a 350 00:19:44,720 --> 00:19:47,440 Speaker 1: fair trial and his right to equal treatment under the law. 351 00:19:47,840 --> 00:19:50,399 Speaker 1: So what is a defense attorney or a prosecutor have 352 00:19:50,520 --> 00:19:53,280 Speaker 1: to prove to make a bats and challenge? What happens 353 00:19:53,320 --> 00:19:56,800 Speaker 1: the judge decides. So what Batson stands for is the 354 00:19:56,880 --> 00:20:00,320 Speaker 1: proposition that lawyers cannot remove a juror because of that 355 00:20:00,440 --> 00:20:04,320 Speaker 1: juror's race. What it means in practice is that if 356 00:20:04,320 --> 00:20:06,960 Speaker 1: a defendant raises a credible claim that a juror was 357 00:20:07,000 --> 00:20:10,320 Speaker 1: excluded because of that curer's race, then the burden shift 358 00:20:10,359 --> 00:20:13,960 Speaker 1: to the prosecution to come forward with a neutral explanation 359 00:20:14,280 --> 00:20:17,560 Speaker 1: as to why it decided to exclude a particular adjuror. 360 00:20:17,880 --> 00:20:20,280 Speaker 1: At that point, it's up to the judge to determine 361 00:20:20,440 --> 00:20:23,840 Speaker 1: whom to believe. The problem with that system is that 362 00:20:23,920 --> 00:20:27,680 Speaker 1: prosecutors can come up with all kinds of neutral reasons 363 00:20:27,760 --> 00:20:30,080 Speaker 1: why they might want to strike a juror. For example, 364 00:20:30,359 --> 00:20:33,400 Speaker 1: they may believe that the juror expressed a bias against police. 365 00:20:33,720 --> 00:20:36,280 Speaker 1: They may claim that a juror is inattentive, and then 366 00:20:36,280 --> 00:20:39,920 Speaker 1: it's very difficult ultimately for the judge to determine whether 367 00:20:40,000 --> 00:20:43,080 Speaker 1: or not there was truly a race neutral explanation for 368 00:20:43,240 --> 00:20:46,680 Speaker 1: striking that curre or whether there was some racially motivated 369 00:20:46,760 --> 00:20:50,399 Speaker 1: reason for trying to eliminate that juror from the case. 370 00:20:50,920 --> 00:20:55,040 Speaker 1: So Bob tell us about the history of peremptories. Peremptory 371 00:20:55,119 --> 00:20:58,480 Speaker 1: challenges are nothing new. In fact, they actually go back 372 00:20:58,800 --> 00:21:02,879 Speaker 1: to English law into the thirteen hundreds. They were regionally 373 00:21:03,320 --> 00:21:06,880 Speaker 1: put into the system in order to give criminal defendants 374 00:21:07,200 --> 00:21:11,600 Speaker 1: the ability to remove jurors basically for any reason at all, 375 00:21:11,640 --> 00:21:13,960 Speaker 1: and the idea was that in a criminal case, the 376 00:21:14,080 --> 00:21:16,879 Speaker 1: life and the liberty of a criminal defendant was at stake, 377 00:21:16,960 --> 00:21:20,240 Speaker 1: and so they should have some additional rights to exclude 378 00:21:20,320 --> 00:21:23,360 Speaker 1: jurors who they think, for any reason at all, might 379 00:21:23,400 --> 00:21:26,520 Speaker 1: be biased against them. When that process came to the 380 00:21:26,600 --> 00:21:30,719 Speaker 1: United States, American courts didn't follow that sanctuaries old English 381 00:21:30,720 --> 00:21:34,280 Speaker 1: practice of only giving peremptory strikes to defense counsel in 382 00:21:34,320 --> 00:21:38,159 Speaker 1: criminal cases, and they applied it to both prosecutors and 383 00:21:38,320 --> 00:21:43,639 Speaker 1: defense lawyers. So the peremptory challenges have been coming under 384 00:21:43,800 --> 00:21:47,639 Speaker 1: fire for quite a while, but particularly during the George 385 00:21:47,680 --> 00:21:52,280 Speaker 1: Floyd case, that peremptory challenges are often used to exclude 386 00:21:52,359 --> 00:21:56,600 Speaker 1: jurors because of their race. The real controversy here is 387 00:21:56,600 --> 00:21:59,840 Speaker 1: that when you look at the evidence. There are studies 388 00:22:00,000 --> 00:22:04,880 Speaker 1: after studies which show that peremptory challenges result in a 389 00:22:05,000 --> 00:22:08,159 Speaker 1: racially imbalanced jury. So, for example, there was a study 390 00:22:08,160 --> 00:22:11,240 Speaker 1: in Arizona that showed that the proportion of wake curers 391 00:22:11,680 --> 00:22:15,600 Speaker 1: seeded varied only by three percent from their representation in 392 00:22:15,600 --> 00:22:19,600 Speaker 1: the population, as compared to black curs, who were underrepresented 393 00:22:19,600 --> 00:22:26,000 Speaker 1: by six Similarly, Hispanics were underrepresented on juries by So 394 00:22:26,280 --> 00:22:30,480 Speaker 1: the argument against the peremptory challenges that it results in 395 00:22:30,520 --> 00:22:34,000 Speaker 1: a racially in balanced jury and it does not truly 396 00:22:34,400 --> 00:22:37,119 Speaker 1: give a defendant the right to have a jury of 397 00:22:37,280 --> 00:22:41,400 Speaker 1: his peers beside their case. So now Arizona is going 398 00:22:41,440 --> 00:22:46,160 Speaker 1: to completely eliminate peremptory challenges, the first state to do so. 399 00:22:46,640 --> 00:22:49,359 Speaker 1: I assume that why they're doing this is they think 400 00:22:49,480 --> 00:22:55,080 Speaker 1: that by eliminating peremptory challenges, they're going to eliminate racially 401 00:22:55,160 --> 00:22:59,359 Speaker 1: discriminatory juries. That seems to be the motivation here. But 402 00:22:59,440 --> 00:23:02,359 Speaker 1: it's also important to point out that the elimination of 403 00:23:02,400 --> 00:23:06,360 Speaker 1: the peremptory challenge really does cut both ways, because remember, 404 00:23:06,640 --> 00:23:10,280 Speaker 1: defense lawyers also get to exercise peremptory challenges, and in fact, 405 00:23:10,280 --> 00:23:14,080 Speaker 1: in criminal cases they get even more peremptory challenges than 406 00:23:14,160 --> 00:23:17,159 Speaker 1: the prosecution does. So it really comes down to the 407 00:23:17,240 --> 00:23:21,040 Speaker 1: question of which ultimately is better to give lawyers the 408 00:23:21,160 --> 00:23:25,639 Speaker 1: right to strike jurors for no reason whatsoever, or to 409 00:23:26,000 --> 00:23:29,199 Speaker 1: say that that is being used for some racially improper 410 00:23:29,240 --> 00:23:32,919 Speaker 1: purpose and eliminate that right for both the prosecution and 411 00:23:33,080 --> 00:23:36,520 Speaker 1: the defense. Now there are even defense lawyers who are 412 00:23:36,560 --> 00:23:41,879 Speaker 1: not necessarily in favor of eliminating peremptory challenges, because sometimes 413 00:23:41,920 --> 00:23:44,760 Speaker 1: defense lawyers may look at a juror, may look at 414 00:23:44,760 --> 00:23:47,000 Speaker 1: the way they're dressed, may look at their body language, 415 00:23:47,160 --> 00:23:49,800 Speaker 1: may look at the way that they've answered questions, and 416 00:23:49,880 --> 00:23:53,679 Speaker 1: determine that they may not be entirely fair to their client, 417 00:23:54,119 --> 00:23:57,239 Speaker 1: And with the elimination of peremptory challenges, they will no 418 00:23:57,320 --> 00:24:00,720 Speaker 1: longer be able to strike those jurors, because they, like 419 00:24:00,880 --> 00:24:04,320 Speaker 1: the prosecution, will have to articulate a basis in order 420 00:24:04,400 --> 00:24:07,520 Speaker 1: to convince the judge as to why that particular juror 421 00:24:07,880 --> 00:24:11,520 Speaker 1: may not be impartial, and that is not always evident 422 00:24:11,640 --> 00:24:15,480 Speaker 1: based simply upon the answers to questions. Defense lawyers argue 423 00:24:15,880 --> 00:24:19,520 Speaker 1: that it is not realistic to expect a perspective juror 424 00:24:19,560 --> 00:24:23,199 Speaker 1: to candidly admit that they can't be fair in a trial. 425 00:24:23,560 --> 00:24:26,320 Speaker 1: And there is something to the argument that when jurors 426 00:24:26,320 --> 00:24:29,119 Speaker 1: are asked about their ability to be fair and impartial, 427 00:24:29,400 --> 00:24:32,760 Speaker 1: to express views about race, or to express views about 428 00:24:32,960 --> 00:24:37,600 Speaker 1: the justice system, that they jurors may be reluctant to 429 00:24:37,800 --> 00:24:42,440 Speaker 1: express those personal beliefs in the context of a courtroom 430 00:24:42,480 --> 00:24:44,560 Speaker 1: and in the context of a trial in front of 431 00:24:44,560 --> 00:24:47,199 Speaker 1: a bunch of strangers who they don't even know. And 432 00:24:47,280 --> 00:24:50,760 Speaker 1: that's the concern that those jurors may still hold some 433 00:24:50,800 --> 00:24:53,680 Speaker 1: implicit biases, and it may be a bias for the government, 434 00:24:53,680 --> 00:24:56,240 Speaker 1: and may be a bias for the defense. And now, 435 00:24:56,240 --> 00:24:59,679 Speaker 1: without the elimination of peremptory challenges, both sets of lawyers, 436 00:24:59,720 --> 00:25:02,040 Speaker 1: whether on the prosecution or the defense, will not be 437 00:25:02,119 --> 00:25:05,679 Speaker 1: able to eliminate those jurors unless they can articulate to 438 00:25:05,680 --> 00:25:09,000 Speaker 1: the judge some reason to believe that those jurors will 439 00:25:09,040 --> 00:25:12,560 Speaker 1: not be fair and impartial, and prosecutors and defense attorneys 440 00:25:12,600 --> 00:25:18,240 Speaker 1: can still eliminate jurors of color with pretextual reasons for cause. 441 00:25:18,720 --> 00:25:22,560 Speaker 1: Lawyers will still have the ability to eliminate jurors for cause, 442 00:25:22,600 --> 00:25:25,040 Speaker 1: and then ultimately is up to the judge to decide 443 00:25:25,040 --> 00:25:28,240 Speaker 1: whether that is a legitimate reason or whether there was 444 00:25:28,320 --> 00:25:31,560 Speaker 1: some improper reason to try to eliminate those jurors. So 445 00:25:31,720 --> 00:25:34,960 Speaker 1: it's not to say that you cannot eliminate an African 446 00:25:34,960 --> 00:25:38,840 Speaker 1: American juror or a white juror for any reason whatsoever. 447 00:25:39,720 --> 00:25:42,359 Speaker 1: You have to articulate a reason as to why you 448 00:25:42,400 --> 00:25:45,359 Speaker 1: believe that that person cannot be fair and impartial in 449 00:25:45,440 --> 00:25:48,159 Speaker 1: order to ask them to be removed from the jury panel. 450 00:25:49,040 --> 00:25:53,160 Speaker 1: And also this means that in civil cases where race 451 00:25:53,240 --> 00:25:56,560 Speaker 1: may not be an issue, you no longer have those peremptories. 452 00:25:57,480 --> 00:26:00,280 Speaker 1: That's exactly right. This will eliminate peremptory challenge is not 453 00:26:00,359 --> 00:26:03,400 Speaker 1: only in criminal cases, but in civil cases as well. 454 00:26:03,720 --> 00:26:07,080 Speaker 1: And there are cases, for example, that are not criminal 455 00:26:07,480 --> 00:26:10,200 Speaker 1: where you do have lawyers who also have come out 456 00:26:10,280 --> 00:26:13,840 Speaker 1: against the elimination of peremptory challenges. For instance, in medical 457 00:26:13,880 --> 00:26:17,920 Speaker 1: malpractice cases where lawyers may be representing a doctor, maybe 458 00:26:18,000 --> 00:26:22,120 Speaker 1: representing a hospital, and they're worried about jurors being swayed 459 00:26:22,160 --> 00:26:25,240 Speaker 1: by emotion rather than the facts of the case. Those 460 00:26:25,280 --> 00:26:28,280 Speaker 1: are cases where sometimes lawyers will look at the juror 461 00:26:28,359 --> 00:26:30,600 Speaker 1: will look at the body language, will look at the 462 00:26:30,600 --> 00:26:33,800 Speaker 1: way they're dressed, will maybe look at their background. And 463 00:26:33,840 --> 00:26:37,720 Speaker 1: although those jurors may have expressed the ability to be 464 00:26:37,840 --> 00:26:41,280 Speaker 1: fair and impartial, the lawyers have a feeling that they 465 00:26:41,320 --> 00:26:45,000 Speaker 1: may not be entirely fair, that they may be somebody 466 00:26:45,040 --> 00:26:49,000 Speaker 1: who has tilted slightly more towards the plain IFFs, and 467 00:26:49,040 --> 00:26:52,200 Speaker 1: they will not be able to eliminate those particular jurors 468 00:26:52,280 --> 00:26:56,080 Speaker 1: unless they can articulate a basis a cause on the 469 00:26:56,160 --> 00:26:59,040 Speaker 1: record based upon the answers to the questions that those 470 00:26:59,119 --> 00:27:02,680 Speaker 1: jurors gave during the void deer or the questioning process. 471 00:27:02,920 --> 00:27:04,719 Speaker 1: They have to be able to point to something that 472 00:27:04,800 --> 00:27:08,040 Speaker 1: was said in the courtroom to demonstrate by a preponderance 473 00:27:08,080 --> 00:27:10,200 Speaker 1: of the evidence that the jury cannot render a fair 474 00:27:10,200 --> 00:27:12,600 Speaker 1: and impartial verdict if they want to remove from the 475 00:27:12,640 --> 00:27:16,960 Speaker 1: jury panel. So, personally, how would you feel not having 476 00:27:16,960 --> 00:27:20,200 Speaker 1: a peremptory when you went to trial. Well, I think 477 00:27:20,200 --> 00:27:24,040 Speaker 1: it's a difficult call, and I certainly see the evidence 478 00:27:24,280 --> 00:27:28,639 Speaker 1: that the jury panels are not racially balanced, and I 479 00:27:28,680 --> 00:27:31,400 Speaker 1: think in this case, what we're seeing is a decision 480 00:27:31,560 --> 00:27:35,560 Speaker 1: that by eliminating peremptory challenges, we're going to get a 481 00:27:35,840 --> 00:27:40,240 Speaker 1: jury that more fairly represents the community, which ultimately is 482 00:27:40,280 --> 00:27:43,040 Speaker 1: what's important here. But when you're the lawyer sitting in 483 00:27:43,080 --> 00:27:45,199 Speaker 1: the courtroom and you're not looking at the numbers, and 484 00:27:45,200 --> 00:27:48,399 Speaker 1: you're not looking at the statistics, and you're just trying 485 00:27:48,440 --> 00:27:50,919 Speaker 1: to pick a jury that you think is going to 486 00:27:50,960 --> 00:27:54,760 Speaker 1: be fair and impartial and going to make a decision 487 00:27:54,800 --> 00:27:57,399 Speaker 1: based solely upon the evidence that's in the best interests 488 00:27:57,400 --> 00:28:01,600 Speaker 1: of your client. You do have cases where a particular 489 00:28:01,720 --> 00:28:04,800 Speaker 1: juror may not have said anything but the way that 490 00:28:04,840 --> 00:28:08,120 Speaker 1: they've answered questions. Sometimes, even if you're a defense lawyer 491 00:28:08,119 --> 00:28:10,040 Speaker 1: in a criminal case, you look at the way a 492 00:28:10,160 --> 00:28:12,919 Speaker 1: juror maybe looking at your client, and you just have 493 00:28:13,040 --> 00:28:16,680 Speaker 1: a feeling that they may not be entirely fair, despite 494 00:28:16,680 --> 00:28:18,600 Speaker 1: the fact that they're saying that they can be fair 495 00:28:18,600 --> 00:28:21,359 Speaker 1: and impartial. And those are the kind of jurors who 496 00:28:21,400 --> 00:28:25,240 Speaker 1: you would like to eliminate. With the elimination of peremptory challenges, 497 00:28:25,520 --> 00:28:28,040 Speaker 1: you'll no longer be able to strike those jurors unless 498 00:28:28,080 --> 00:28:30,000 Speaker 1: you can come up with some kind of a basis 499 00:28:30,200 --> 00:28:32,880 Speaker 1: based upon the answers to their questions as to why 500 00:28:32,960 --> 00:28:35,440 Speaker 1: you think they can't be fair and impartial. That's Robert 501 00:28:35,480 --> 00:28:38,280 Speaker 1: Manson McCarter and English. And that's it for the sedition 502 00:28:38,320 --> 00:28:40,800 Speaker 1: of The Bloomberg Law Show. Remember you can always get 503 00:28:40,840 --> 00:28:43,720 Speaker 1: the latest legal news on our Bloomberg Lawn podcast. You 504 00:28:43,760 --> 00:28:47,720 Speaker 1: can find them on Apple Podcasts, Spotify and at www 505 00:28:47,920 --> 00:28:52,560 Speaker 1: dot bloomberg dot com slash podcast Slash Law. I'm June 506 00:28:52,560 --> 00:28:54,360 Speaker 1: Brusso and you're listening to the m