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

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Speaker 1: Despite the protests, Oklahoma just made it a felony to

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Speaker 1: perform an abortion. Governor Kevin Stitt signed the law, which

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Speaker 1: now becomes the most restrictive abortion law in the country.

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Speaker 1: We want Oklahoma to be the most pro life state

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Speaker 1: in the country. We want to outlaw abortion in the

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Speaker 1: state of Oklahoma. Oklahoma is just the latest of Republican

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Speaker 1: led states across the country rushing to restrict abortion access.

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Speaker 1: In anticipation of a rollback of abortion rights by the

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Speaker 1: Supreme Court by this summer, and emboldened by the Justice's

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Speaker 1: decision to allow Texas abortion restrictions to remain in place,

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Speaker 1: Planned parenthoods Emily Well says, the courts are no longer

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Speaker 1: a helpful option. In the past, we've been able to

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Speaker 1: rely on the Court as a backstop to block some

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Speaker 1: of the most egregious laws they've proposed. But we know

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Speaker 1: that's not true anymore. Joining me is Mary Ziegler, an

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Speaker 1: expert in the law of reproductive rights and a professor

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Speaker 1: at the Florida State University College of Law. Mary, before

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Speaker 1: we turned to the Oklahoma law, let's discuss this startling

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Speaker 1: case in Texas where a twenty six year old woman

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Speaker 1: was arrested on murder charges for allegedly quote, causing the

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Speaker 1: death of an individual by a self induced abortion. The

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Speaker 1: Star County district attorney got a grand jury to sign

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Speaker 1: off on a murder indictment on March thirty, but this

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Speaker 1: week the district attorney admitted the woman had not committed

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Speaker 1: a crime and dropped the charges. Do you have any

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Speaker 1: understanding of why he charged her in the first place.

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Speaker 1: It's hard to say. I mean, there's no legal explanation, obviously,

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Speaker 1: because it's worth emphasizing that it's not just the case

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Speaker 1: that there was no statute that authorized this prosecution. Texas

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Speaker 1: homicide law actually explode that Lee spells out that you

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Speaker 1: cannot punish women for having abortions. So this was a

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Speaker 1: case where this was expressly prohibited by law, not just

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Speaker 1: that there was still a way this was authorized. It

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Speaker 1: was expressly prohibited. I think the best way you can

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Speaker 1: understand it is as part of a kind of general

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Speaker 1: fragmentation of authority in the anti abortion movement and a

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Speaker 1: kind of shift away from healing limited by what the

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Speaker 1: law is now, because I mean, historically the anti abortion

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Speaker 1: movement would have had to work within the confines of

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Speaker 1: Roe v. Wade and would wait until the Supreme Court

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Speaker 1: said that it was changing the rules before adjusting. And now,

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Speaker 1: of course, we live in a world where legislators routinely

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Speaker 1: passed laws they know are unconstitutional. Now because they no

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Speaker 1: longer care about what the laws now, they care about

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Speaker 1: what they expect the Supreme Court will do soon. And

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Speaker 1: the only way I can understand what happened in Texas

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Speaker 1: is that's it's sort of part of the same phenomenon

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Speaker 1: right where prosecutors are saying, you know, we're going to

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Speaker 1: act as if the law is the way we wanted

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Speaker 1: to be, or act as if we can predict what

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Speaker 1: the law will be soon, rather than actually paying attention

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Speaker 1: to the rule of law that currently stands. And obviously

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Speaker 1: that can lead us to some pretty disturbing places. The

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Speaker 1: district attorney admitted she hadn't committed a crime. Only after

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Speaker 1: the case got national attention. She spent three days in jail.

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Speaker 1: Her name and mug shot have been published across media nationwide.

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Speaker 1: Is this a case for a malicious prosecution lawsuit? I

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Speaker 1: think there's definitely an argument for that. Yeah, because It's

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Speaker 1: really hard to see what basis there was for this.

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Speaker 1: So there's no good faith argument that you can prosecute

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Speaker 1: a woman in Texas for inducing her own divortion at all,

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Speaker 1: much less for murder. And I'm not a Texas expert particularly,

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Speaker 1: but I mean, all you need to do is read

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Speaker 1: texas As homicide Statute to know the answer to this.

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Speaker 1: So it would not be a bad idea to establish

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Speaker 1: that this was a malicious prosecution so that people don't

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Speaker 1: follow the same path. Also very odd is that it

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Speaker 1: was the hospital staff that turned her into police. Is

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Speaker 1: there any kind of duty to report in Texas? Perhaps

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Speaker 1: with the new law, how could you have a duty

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Speaker 1: to report someone for doing something legal If what she's

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Speaker 1: doing isn't a crime. Any law that does exist about

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Speaker 1: mandatory reporting of a crime wouldn't apply anyway. So the

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Speaker 1: hospital staff, just like the prosecutor and the sheriff, were

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Speaker 1: you know, acting on their own sense of what the

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Speaker 1: law should be and not acting based on the law

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Speaker 1: as it's written. There are concerns that this could stop

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Speaker 1: women from going to the hospital in emergency situations. Yeah, absolutely,

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Speaker 1: And I mean I think that that's probably the lasting

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Speaker 1: legacy of this that people will be afraid of seeking

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Speaker 1: treatment when they need it, even if ultimately charges are

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Speaker 1: dismissed as they were in this case. People don't want

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Speaker 1: to have to spend some time in prison and have

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Speaker 1: to get together the money for bail and all of

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Speaker 1: that after having had an abortion, or it's worth seeing

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Speaker 1: a miscarriage, because it's not going to be easy for

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Speaker 1: people in hospitals to distinguish whether someone has taken an

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Speaker 1: abortion pill or had a miscarriage. Is there anything left

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Speaker 1: to challenge, any avenue left to challenge the Texas Abortion

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Speaker 1: Law SP eight? Not really? I mean, so the Texas

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Speaker 1: Supreme Court just shut the door on the last remaining possibility,

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Speaker 1: which had been a suit against state licensing officials. The

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Speaker 1: only exception is people who are sued under sp E

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Speaker 1: can raise constitutional arguments each time they're sued. But that's

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Speaker 1: not really a satisfying alternative, because, of course then there's

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Speaker 1: no moment in which those people would really be free

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Speaker 1: to go about their business, right they would have to

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Speaker 1: keep defending against lawsuit after lawsuit, raising the same constitutional

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Speaker 1: argument over and over again. Is the new Oklahoma law

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Speaker 1: even tougher than the Texas law which we once said

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Speaker 1: was the most restrictive in the country. It is, though

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Speaker 1: I mean it's different obviously, because the bounty hunting provisions

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Speaker 1: are about money. They use the prospect of huge legal

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Speaker 1: penalties financial penalties to discourage people from providing abortions. Oklahoma's

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Speaker 1: law just simply criminalizes the provision of abortion, and so

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Speaker 1: in some ways, I think you could say it's a

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Speaker 1: near total ban. It bans more abortions earlier in pregnancy

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Speaker 1: than the Texas bill. It has only an exception for

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Speaker 1: abortions performed to save the life of the pregnant person.

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Speaker 1: It makes performing an abortion of felony, and you can

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Speaker 1: be punished by up to ten years in prison. And

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Speaker 1: so I think sp A, as out there as it

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Speaker 1: may seem, is just the beginning. We're much more likely

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Speaker 1: to see bills like the Oklahoma law going forwards if

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Speaker 1: the Supreme Court does actually reverse review AID. These laws

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Speaker 1: don't provide exceptions for rape or incest. Even no, they

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Speaker 1: don't provide exceptions for rape and incest in almost all circumstances. Historically,

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Speaker 1: people in the anti abortion movement has never supported an

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Speaker 1: exception for rape and incest. It's always been sort of

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Speaker 1: like a necessity. I would say political necessity in the

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Speaker 1: sense that they thought it would be politically stupid to

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Speaker 1: say that they didn't want to have an exception for

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Speaker 1: rape and incest. But in practical terms, they understood that

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Speaker 1: we needed to say as much. But rave and insist

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Speaker 1: exceptions contradict the idea of fetal personhood, which is of

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Speaker 1: course the core tenant of the anti a worship movement,

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Speaker 1: because if if you have a rights holding person, you're

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Speaker 1: not allowed to kill that person because they were conceived,

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Speaker 1: you know, and rape were incest, which is why they

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Speaker 1: can justify this life of the pregnant person example. So

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Speaker 1: I think what we're seeing now is that states are

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Speaker 1: feeling either that in their own states things are so

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Speaker 1: polarized that voters will accept the elimination of raper incest

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Speaker 1: exceptions or anyway that there won't be any political consequences

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Speaker 1: because voters wouldn't select a Democrat even if they don't

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Speaker 1: like their state's subborshion policy. And you're seeing that states

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Speaker 1: are so confident that the Supreme Court is going to

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Speaker 1: do whatever they want that they don't have to kind

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Speaker 1: of silence unpopular positions to avoid offending the justices because

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Speaker 1: They think essentially that they've got this in the bag

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Speaker 1: and Rob, We're just going to go no matter what

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Speaker 1: they do. It seems surprising the states are not even

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Speaker 1: waiting to hear what the Supreme Court is going to

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Speaker 1: say by June or July at the latest about yep, yeah,

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Speaker 1: I mean, this is what happens. I think when you

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Speaker 1: have a court that's viewed as partisan, it does harm

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Speaker 1: to the rule of law because people in legislatures don't

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Speaker 1: treat the Court as judges. They treat them as partisans,

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Speaker 1: and they base their own decisions as legislators on predictions

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Speaker 1: about what they think of partisan court would do rather

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Speaker 1: than on the precedence the court has actually laid out.

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Speaker 1: And so the more people view the court as partisans,

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Speaker 1: the more this kind of you know, damage will spread,

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Speaker 1: and the more it may affect many people's perceptions of

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Speaker 1: the court and its legitimacy. What happens if, as expected,

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Speaker 1: the Supreme Court weekends or even overturns Row, Well, we

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Speaker 1: see more of these laws or are they already on

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Speaker 1: the books? There are some on the books. So there

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Speaker 1: are a number of states that have pre row bands

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Speaker 1: close to ten that simply have sort of sat there

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Speaker 1: not being in effect, but that might be kind of

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Speaker 1: revived like zombies should Roll be overturned. A number of

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Speaker 1: other states have passed so called trigger laws more recently

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Speaker 1: that would essentially go into effect were oviewed to be overturned,

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Speaker 1: and so close to half the states would likely have

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Speaker 1: something like a band coming into effect quite quickly after

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Speaker 1: Rows overturned. Of course, there'll be lots of legal skirmishing

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Speaker 1: about that. There'll be state constitutional challenges to some of

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Speaker 1: these bills. They'll be debates about what exactly is needed

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Speaker 1: to trigger the trigger laws, but that is what we

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Speaker 1: are expecting going forward. Is it better if the Supreme

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Speaker 1: Court just overturns ROW instead of cutting it back bit

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Speaker 1: by bit and pretending that it's still viable. I think

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Speaker 1: yes and no. I mean I think historically abortion rights

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Speaker 1: supporters would have wanted a clearer overruling of ROW, because

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Speaker 1: that would at least give people the opportunity to organize

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Speaker 1: politically who support abortion rights to counter that. I think

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Speaker 1: the concern is that, you know, the world we live

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Speaker 1: in is so polarized now that the reversal of ROW

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Speaker 1: might not results in the kind of backlash we would

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Speaker 1: have anticipated. Ten or fifteen years ago, because the question,

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Speaker 1: I think is not just whether the court's legitimacy you

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Speaker 1: would be damaged by the reversal, but whether that damage

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Speaker 1: would translate into anything politically that the Court would care about.

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Speaker 1: And I think that's much harder to predict. So don't

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Speaker 1: I don't know if you're a supporter of a worship

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Speaker 1: rates whether you'd be happier with a decision reversing Row

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Speaker 1: outright or something that's more muddied, simply because I think

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Speaker 1: predicting what kind of backlash will see is so challenging.

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Speaker 1: Is the next step for anti abortion forces trying to

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Speaker 1: prohibit the use, sale, or prescription of contraceptives potentially? I

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Speaker 1: mean one of the ways that that might happen is

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Speaker 1: that there's always been a disagreement within the anti abortion movement,

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Speaker 1: and really I think the country large about the line

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Speaker 1: between aborshition and contraception. Many may remember during fights about

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Speaker 1: the contraceptive mandate of Obamacare that conservatives were complaining about

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Speaker 1: having to subsidize what they've viewed as a porson inducing drugs,

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Speaker 1: and those included things like emergency contraceptives and i U

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Speaker 1: d s and so in a world where states can

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Speaker 1: ban abortion, there's going to be a real fight about

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Speaker 1: what abortion actually is and whether it includes some things

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Speaker 1: many people view as contraceptives, and that, of course, could

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Speaker 1: lead to a more direct challenge to the idea that

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Speaker 1: there is a right to use contraception in the first place.

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Speaker 1: In the future, could you envision the Supreme Court prohibiting

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Speaker 1: even democratic led states from allowing abortions? Yes, it's possible.

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Speaker 1: I mean so. Anti abortion lawyers are already asking the

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Speaker 1: Court to recognize the personhood of the fetus, which would

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Speaker 1: mean abortion would violate the Due process and Equal Protection clause.

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Speaker 1: That would be unconstitutional everywhere. I don't expect the Court

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Speaker 1: necessarily to announce it or ruling like that this year,

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Speaker 1: but I think it's quite likely that we'll see an

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Speaker 1: effort to get the Court to do so in the

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Speaker 1: near future. And whether that taste off, I think is

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Speaker 1: something will have to wait several years to find out,

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Speaker 1: but that strategy will definitely be put before the court.

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Speaker 1: Maryland is joining fortune other states in allowing trained medical

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Speaker 1: professionals other than physicians to perform abortions. That was over

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Speaker 1: the veto of the governor. Are we seeing some states

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Speaker 1: trying to shore up the right to an abortion. Yeah,

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Speaker 1: we're seeing both states that are kind of codifying protections

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Speaker 1: for abortion, as well as states that are trying to

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Speaker 1: take more concrete steps to expand access, so for example,

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Speaker 1: allowing people who are not licensed physicians, like you know,

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Speaker 1: physician extenders or nurse practitioners to perform abortions. Some states

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Speaker 1: are considering becoming so called sanctuaries and helping to fund

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Speaker 1: travel and services for people traveling from states where abortion

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Speaker 1: is illegal. So I think that's something that we would

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Speaker 1: expect to see. Thanks so much, Mary. That's Mary Ziegler,

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Speaker 1: a professor at the Florida State University College of Law.

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Speaker 1: For the first time, Chief Justice John Roberts joined the

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Speaker 1: court's liberal wing in blasting the conservative majority's handling of

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Speaker 1: the stream of emergency request called the Shadow Docket. The

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Speaker 1: Court temporarily reinstated a Clean Water Act rule issued by

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Speaker 1: the Trump administration that scale back federal protections for streams,

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Speaker 1: wet lands, and other bodies of water. Joining these environmental

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Speaker 1: law professor Pat Parento of the Vermont Law School, what

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Speaker 1: was your reaction to this order? Pat? What's really striking

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Speaker 1: is why does environmental law seem to be in the

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Speaker 1: center of their bulls eye. This is the third time

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Speaker 1: now within what the last eight months there and certainly

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Speaker 1: was in the last year, two questionable grants of cert

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Speaker 1: in the West Virginia case involving greenhouse gas emissions from

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Speaker 1: power plants, and then the sack A case involving the

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Speaker 1: Clean Water Act, and now this crazy unjustified stay. I've

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Speaker 1: got another Clean Water Act rules. So three times the

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Speaker 1: court has issued very very questionable decisions or orders really

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Speaker 1: not to say orders, and they seem to be wanting

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Speaker 1: to change administrative law using environmental law. That seems to

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Speaker 1: be part of what the agenda is, if there is one.

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Speaker 1: This is about the administrative state, yes, and the environmental

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Speaker 1: rules that they're all up because of course we had

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Speaker 1: the Trump rules that had to be replaced. So those

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Speaker 1: are targets of opportunity for a court intent on rolling

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Speaker 1: back agency power. Tell us what the rule is here,

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Speaker 1: what happened? So this is a rule that deals with

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Speaker 1: what are called water quality certifications. It's Section four oh

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Speaker 1: one of the Clean Water Act, and in it, Congress

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Speaker 1: basically wanted to preserve the authority of states to protect

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Speaker 1: their water quality when federal agencies issue licenses like FIR,

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Speaker 1: the Federal Energy Regulatory Commission for hydroelectric dams and gas

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Speaker 1: pipelines and infrastructure like that, and also other forms of

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Speaker 1: federal permits, specifically Core of Engineer Section four oh four permits,

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Speaker 1: which are for everything under the sun, not just pipelines

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Speaker 1: and transmission lines and highways, but every kind of development

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Speaker 1: that it involves discharge of dread or film material into

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Speaker 1: wetlands and other streams. So incredibly broad scope of authority

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Speaker 1: and necessary because otherwise the states are preempted by federal

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Speaker 1: law and don't have control over these projects that are

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Speaker 1: licensed by the federal government. So for fifty years we've

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Speaker 1: we've had a regime in place where the states were

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Speaker 1: exercising this authority, and it has been twice upheld by

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Speaker 1: the U. S. Supreme Court, once in an opinion by

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Speaker 1: Justice Santa Day O'Connor and what's called the PUD Number one,

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Speaker 1: a case in which she wrote that this is a

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Speaker 1: critical authority that states have to protect not just sort

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Speaker 1: of water quality from chemical pollution, but also the equot

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Speaker 1: integrity if you will, up streams, including fisheries, habitat. The

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Speaker 1: case involves salmon habitat in Washington State. Right, And then

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Speaker 1: in a later case, just the suitor wrote for an

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Speaker 1: unanimous Supreme Court that this authority was broad enough that

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Speaker 1: it applied even where there wasn't a direct discharge from

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Speaker 1: a point source, which is the typical way that the

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Speaker 1: Clean Water Act regulates. It was even broader than that.

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Speaker 1: So that's what's that issue here is state's rights. States

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Speaker 1: power to protect their water quality from projects that are

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Speaker 1: licensed by the federal government. The court issued this order

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Speaker 1: and it's supposed to be on a showing of irreparable harm.

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Speaker 1: What's happening now? What kind of harm are these you know,

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Speaker 1: are these states talking about? Well, they can't point to

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Speaker 1: any specific instance where the reinstatement of the pre Trump rule.

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Speaker 1: That's what's that issue here again is Trump came along

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Speaker 1: like he did with so many any other rules, and

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Speaker 1: completely changed the interpretation of the Clean Water Act to

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Speaker 1: say a number of things, including that states authority was

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Speaker 1: both limited in time that they had to act faster

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Speaker 1: than they traditionally have been acting, and also limited in

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Speaker 1: scope that they couldn't do as much as states wanted

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Speaker 1: to to not only protect water resources but also control

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Speaker 1: fossil fuel infrastructure. That's the real crux of the controversy here.

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Speaker 1: The people that are opposed to what the Biden administration

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Speaker 1: is doing are people including Red states and Red state

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Speaker 1: attorneys general, who are in favor of more fossil fuel development,

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Speaker 1: including gas pipelines, and they don't like the fact that

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Speaker 1: Biden is now going to return to a rule that

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Speaker 1: would allow states to use a broad array of reasons

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Speaker 1: to either object to these projects or at least condition

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Speaker 1: them to mitigate them. So the point here is the

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Speaker 1: Biden administration has not yet adopted a new rule. They've

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Speaker 1: gone back to the pre Trump rule, and there is

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Speaker 1: no evidence that any project has been stopped as a

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Speaker 1: result of what the Biden administration has done. That's why

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Speaker 1: Kagan wrote her dissent. She said, there's no harm here

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Speaker 1: to justify this extraordinary use of an emergency power to

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Speaker 1: stay something that's poses an immediate, irreparable threat. There isn't

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Speaker 1: any nor is there any reason to not wait for

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Speaker 1: the Ninth Circuit to issue its decision. This issue is

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Speaker 1: on appeal before the Ninth Circuit. There's an oral argument

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Speaker 1: schedule for next month, so you know, the Supreme Court

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Speaker 1: could simply wait, as it usually does, for the Ninth

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Speaker 1: Circuit to rule. Who knows the Ninth Circuit might overturn

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Speaker 1: the lower court's decision, which is the one the Supreme

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Speaker 1: Court has stayed. Right, So the Supreme Court isn't even

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Speaker 1: willing to wait for the Ninth Circuit to take an action,

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Speaker 1: and there's no harm in the meantime from waiting. But

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Speaker 1: that's where we are with the Supreme Court. The Supreme

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Speaker 1: Court issuing this day. It's not really going to stay

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Speaker 1: anything that's happening. It's not going to be you know,

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Speaker 1: adverse to environmental interests. Well, it reinstates the Trump rules.

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Speaker 1: That's the effect of it. Because what happened was the

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Speaker 1: lower court Judge Alsa in the Northern District of California

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Speaker 1: is the district court judge who issued the order of

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Speaker 1: vacating the Trump Rules. So the effect of what the

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Speaker 1: Supreme Court has done is to stay Judge Alsup's order,

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Speaker 1: which has the effect of reinstating the Trump Rule. So

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Speaker 1: Judge Alsap in his analysis said, if you leave the

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Speaker 1: Trump Rule in effect, based on the evidence before me

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Speaker 1: that's in the administrative record, I conclude there will be

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Speaker 1: environmental harm from leaving this rule in place for the

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Speaker 1: time it's going to take to replace it with the

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Speaker 1: new rule. Secondly, he said, I conclude there is no

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Speaker 1: significant disruption. That's one of the criteria judges have to

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Speaker 1: evaluate in deciding whether to vacate a rule. Will the

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Speaker 1: vague cation of the rule caused significant disruption? He concluded

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Speaker 1: based on the record, No, there won't be significant disruption,

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Speaker 1: but there will be significant environmental harm if you leave

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Speaker 1: this rule on the books. And finally, he said, there

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Speaker 1: are very serious questions about the legality of the Trump rule,

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Speaker 1: such that it's very unlikely that when the new rule

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Speaker 1: comes out it will look anything like the Trump rule.

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Speaker 1: It's gonna be very different. It may not be what

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Speaker 1: existed before, but it's going to be very different from

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Speaker 1: the Trump rule. So that's the kind of very careful

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Speaker 1: analysis that the lower courts have to go through before

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Speaker 1: they decide whether a rule should be vacated pending a

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Speaker 1: new rule. And that's what he did, and the Ninth

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Speaker 1: Circuit is, of course, is reviewing all of that. Maybe

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Speaker 1: they will agree with him, maybe they won't, maybe they'll

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Speaker 1: send it back to him. We don't know. Neither does

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Speaker 1: the Supreme Court. But in the meantime, the Court has

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Speaker 1: issued to stay. So now the states lack the authority

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Speaker 1: they've traditionally had, as they say, for decades, they now

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Speaker 1: lack the authority to protect their water resources from federally

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Speaker 1: authorized projects. Let's talk about the shadow docket, because Justice

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Speaker 1: Atlanta Kagan, who has been a critic of the shadow docket,

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Speaker 1: said it renders the Court's emergency docket, not for emergencies

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Speaker 1: at all, just another place for merits determinations, except without

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Speaker 1: full briefing and argument. Do you agree with her that

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Speaker 1: the Court is using the shadow docket too much? Oh? Yes,

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Speaker 1: I mean this is not responsible judicial sort of impartial,

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Speaker 1: non activist, objective and restrained judicial conduct at all. And

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Speaker 1: by the way, you know, Chief Justice Roberts sided with

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Speaker 1: Keagan on this. So once again the effect of Trump's

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Speaker 1: appointees to the Court becomes huge here because if it

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Speaker 1: weren't for for that, Roberts might well be the swing

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Speaker 1: vote in these kinds of situations. But now his vote

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Speaker 1: is irrelevant because there are five solid conservative votes to

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Speaker 1: do what they want, and apparently what they want is

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Speaker 1: to continually look for and then of course they're clerks,

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Speaker 1: are the ones that are looking for them. But look

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Speaker 1: through these petitions to the Court and they seem to

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Speaker 1: be singling out environmental petitions coming from red states. The

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Speaker 1: opposition here is is clearly partisant. There's no blue democratic

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Speaker 1: state at all that's opposed to what the Biden administration

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Speaker 1: is doing. In fact, they're pleading with the Biden administration

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Speaker 1: to move forward more quickly with the rulemaking and get

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Speaker 1: it back to what it was before. Right. So this

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Speaker 1: is straight partisan politics manifested through the Court using this

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Speaker 1: shadow docket with an agenda to identify rules that the

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Speaker 1: Conservatives for whatever reason, don't like, are skeptical of, and

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Speaker 1: get them up to the Supreme Court. This stay ordered,

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Speaker 1: by the way, isn't just holding off until the Ninth

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Speaker 1: Circuit decides. The order also says if there's a petition

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Speaker 1: for Sir sharr I, which of course there there would

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Speaker 1: be probably either way, but certainly there would be if

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Speaker 1: the Ninth Circuit upholds Judge Outsels decisions vacating the Trump

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Speaker 1: rule the Supreme Court, and this order has said if

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Speaker 1: there's a petition for certain if we grant it, then

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Speaker 1: this day is going to stay in place until we've

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Speaker 1: decided the merits of the case. That's what Kagan is

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Speaker 1: getting at. She's really saying what the Court is doing

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Speaker 1: is saying, we're going to put a hold on everything

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Speaker 1: until we get a chance to decide whether this whatever

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Speaker 1: the Biden administration is going to do is lawful or not.

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Speaker 1: That puts everything in limbo for a very long period

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Speaker 1: of time, because we know how long it takes for

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Speaker 1: the Supreme Court to not only get around a hearing

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Speaker 1: argument after briefing, but actually issuing decisions. We're talking about

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Speaker 1: a year or more before we would get any final

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Speaker 1: resolute In the meantime, the States are left in this

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Speaker 1: limbo mode where they're stuck with a Trump rule that

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Speaker 1: has constrained their authority and they can't seem to move

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Speaker 1: forward now. Also, just back to to Justice Robert this

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Speaker 1: is the ninth time he's joined with the liberals on

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Speaker 1: the losing side of five to four decisions. Since Barrett

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Speaker 1: joined the court, seven have been in shadow docket rulings.

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Speaker 1: But this is the first time, though, that he actually

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Speaker 1: joined with a criticism of the shadow docket by Justice

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Speaker 1: Kagan in this instance. So is that significant? Yes, I

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Speaker 1: think he's he's worried about the institutional reputation. He's made

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Speaker 1: that point before, not only in statements in some of

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Speaker 1: his opinions, but in his public pronouncements, which are limited,

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Speaker 1: of course, But I think the Chief Justice is very

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Speaker 1: worried about the reputation of the Supreme Court as an institution.

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Speaker 1: It's beginning to look like an extension of the Republican Party.

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Speaker 1: It's beginning to look is if the only voices it's

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Speaker 1: listening to are those that are opposed to federal regulation

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Speaker 1: and not those that are in support. Even when it

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Speaker 1: comes to a split in the states, as I said,

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Speaker 1: there are more states in favor put first of all

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Speaker 1: putting a stay or a hold on the Trump rule

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Speaker 1: and then replacing it. Then then there are states that

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Speaker 1: are in favor of it. So again, it really does,

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Speaker 1: I think concern the Chief Justice that not just the

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Speaker 1: optics of what the Supreme Court is doing, but the

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Speaker 1: reality of what the Court is doing. And particularly now

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Speaker 1: the third time, within big environmental rules, it seems to

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Speaker 1: be sending the message that the Court is got a

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Speaker 1: ten ear when it comes to what are the real

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Speaker 1: purposes and reasons for these rules? Why are these rules

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Speaker 1: on the books, what kinds of problems are they intended

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Speaker 1: to address, and they're only listening to those who oppose

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Speaker 1: regulation without actually proposing alternatives to the relation. None of

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Speaker 1: these three cases that we're talking about, and none of

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Speaker 1: those cases are we seeing the opponents of the environmental

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Speaker 1: rules proposing alternatives that actually address the problems the rules

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Speaker 1: are designed to address. That's where we are a Supreme

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Speaker 1: Court that highly partisan and only listening to one side.

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Speaker 1: Thanks Pat. That's Professor Pat Parento of the Vermont Law School.

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Speaker 1: And that's it for this edition of The Bloomberg Law Show.

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Speaker 1: Remember you can always get the latest legal news honor

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Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

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Speaker 1: and at www Dot Bloomberg dot com, slash podcast, slash Law,

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Speaker 1: and remember to tune into The Bloomberg Law Show every

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Speaker 1: week night at ten BM Wall Street Time. I'm June

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Speaker 1: Grosso and you're listening to Bloomberg