Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.
Speaker 1: Despite the protests, Oklahoma just made it a felony to
Speaker 1: perform an abortion. Governor Kevin Stitt signed the law, which
Speaker 1: now becomes the most restrictive abortion law in the country.
Speaker 1: We want Oklahoma to be the most pro life state
Speaker 1: in the country. We want to outlaw abortion in the
Speaker 1: state of Oklahoma. Oklahoma is just the latest of Republican
Speaker 1: led states across the country rushing to restrict abortion access.
Speaker 1: In anticipation of a rollback of abortion rights by the
Speaker 1: Supreme Court by this summer, and emboldened by the Justice's
Speaker 1: decision to allow Texas abortion restrictions to remain in place,
Speaker 1: Planned parenthoods Emily Well says, the courts are no longer
Speaker 1: a helpful option. In the past, we've been able to
Speaker 1: rely on the Court as a backstop to block some
Speaker 1: of the most egregious laws they've proposed. But we know
Speaker 1: that's not true anymore. Joining me is Mary Ziegler, an
Speaker 1: expert in the law of reproductive rights and a professor
Speaker 1: at the Florida State University College of Law. Mary, before
Speaker 1: we turned to the Oklahoma law, let's discuss this startling
Speaker 1: case in Texas where a twenty six year old woman
Speaker 1: was arrested on murder charges for allegedly quote, causing the
Speaker 1: death of an individual by a self induced abortion. The
Speaker 1: Star County district attorney got a grand jury to sign
Speaker 1: off on a murder indictment on March thirty, but this
Speaker 1: week the district attorney admitted the woman had not committed
Speaker 1: a crime and dropped the charges. Do you have any
Speaker 1: understanding of why he charged her in the first place.
Speaker 1: It's hard to say. I mean, there's no legal explanation, obviously,
Speaker 1: because it's worth emphasizing that it's not just the case
Speaker 1: that there was no statute that authorized this prosecution. Texas
Speaker 1: homicide law actually explode that Lee spells out that you
Speaker 1: cannot punish women for having abortions. So this was a
Speaker 1: case where this was expressly prohibited by law, not just
Speaker 1: that there was still a way this was authorized. It
Speaker 1: was expressly prohibited. I think the best way you can
Speaker 1: understand it is as part of a kind of general
Speaker 1: fragmentation of authority in the anti abortion movement and a
Speaker 1: kind of shift away from healing limited by what the
Speaker 1: law is now, because I mean, historically the anti abortion
Speaker 1: movement would have had to work within the confines of
Speaker 1: Roe v. Wade and would wait until the Supreme Court
Speaker 1: said that it was changing the rules before adjusting. And now,
Speaker 1: of course, we live in a world where legislators routinely
Speaker 1: passed laws they know are unconstitutional. Now because they no
Speaker 1: longer care about what the laws now, they care about
Speaker 1: what they expect the Supreme Court will do soon. And
Speaker 1: the only way I can understand what happened in Texas
Speaker 1: is that's it's sort of part of the same phenomenon
Speaker 1: right where prosecutors are saying, you know, we're going to
Speaker 1: act as if the law is the way we wanted
Speaker 1: to be, or act as if we can predict what
Speaker 1: the law will be soon, rather than actually paying attention
Speaker 1: to the rule of law that currently stands. And obviously
Speaker 1: that can lead us to some pretty disturbing places. The
Speaker 1: district attorney admitted she hadn't committed a crime. Only after
Speaker 1: the case got national attention. She spent three days in jail.
Speaker 1: Her name and mug shot have been published across media nationwide.
Speaker 1: Is this a case for a malicious prosecution lawsuit? I
Speaker 1: think there's definitely an argument for that. Yeah, because It's
Speaker 1: really hard to see what basis there was for this.
Speaker 1: So there's no good faith argument that you can prosecute
Speaker 1: a woman in Texas for inducing her own divortion at all,
Speaker 1: much less for murder. And I'm not a Texas expert particularly,
Speaker 1: but I mean, all you need to do is read
Speaker 1: texas As homicide Statute to know the answer to this.
Speaker 1: So it would not be a bad idea to establish
Speaker 1: that this was a malicious prosecution so that people don't
Speaker 1: follow the same path. Also very odd is that it
Speaker 1: was the hospital staff that turned her into police. Is
Speaker 1: there any kind of duty to report in Texas? Perhaps
Speaker 1: with the new law, how could you have a duty
Speaker 1: to report someone for doing something legal If what she's
Speaker 1: doing isn't a crime. Any law that does exist about
Speaker 1: mandatory reporting of a crime wouldn't apply anyway. So the
Speaker 1: hospital staff, just like the prosecutor and the sheriff, were
Speaker 1: you know, acting on their own sense of what the
Speaker 1: law should be and not acting based on the law
Speaker 1: as it's written. There are concerns that this could stop
Speaker 1: women from going to the hospital in emergency situations. Yeah, absolutely,
Speaker 1: And I mean I think that that's probably the lasting
Speaker 1: legacy of this that people will be afraid of seeking
Speaker 1: treatment when they need it, even if ultimately charges are
Speaker 1: dismissed as they were in this case. People don't want
Speaker 1: to have to spend some time in prison and have
Speaker 1: to get together the money for bail and all of
Speaker 1: that after having had an abortion, or it's worth seeing
Speaker 1: a miscarriage, because it's not going to be easy for
Speaker 1: people in hospitals to distinguish whether someone has taken an
Speaker 1: abortion pill or had a miscarriage. Is there anything left
Speaker 1: to challenge, any avenue left to challenge the Texas Abortion
Speaker 1: Law SP eight? Not really? I mean, so the Texas
Speaker 1: Supreme Court just shut the door on the last remaining possibility,
Speaker 1: which had been a suit against state licensing officials. The
Speaker 1: only exception is people who are sued under sp E
Speaker 1: can raise constitutional arguments each time they're sued. But that's
Speaker 1: not really a satisfying alternative, because, of course then there's
Speaker 1: no moment in which those people would really be free
Speaker 1: to go about their business, right they would have to
Speaker 1: keep defending against lawsuit after lawsuit, raising the same constitutional
Speaker 1: argument over and over again. Is the new Oklahoma law
Speaker 1: even tougher than the Texas law which we once said
Speaker 1: was the most restrictive in the country. It is, though
Speaker 1: I mean it's different obviously, because the bounty hunting provisions
Speaker 1: are about money. They use the prospect of huge legal
Speaker 1: penalties financial penalties to discourage people from providing abortions. Oklahoma's
Speaker 1: law just simply criminalizes the provision of abortion, and so
Speaker 1: in some ways, I think you could say it's a
Speaker 1: near total ban. It bans more abortions earlier in pregnancy
Speaker 1: than the Texas bill. It has only an exception for
Speaker 1: abortions performed to save the life of the pregnant person.
Speaker 1: It makes performing an abortion of felony, and you can
Speaker 1: be punished by up to ten years in prison. And
Speaker 1: so I think sp A, as out there as it
Speaker 1: may seem, is just the beginning. We're much more likely
Speaker 1: to see bills like the Oklahoma law going forwards if
Speaker 1: the Supreme Court does actually reverse review AID. These laws
Speaker 1: don't provide exceptions for rape or incest. Even no, they
Speaker 1: don't provide exceptions for rape and incest in almost all circumstances. Historically,
Speaker 1: people in the anti abortion movement has never supported an
Speaker 1: exception for rape and incest. It's always been sort of
Speaker 1: like a necessity. I would say political necessity in the
Speaker 1: sense that they thought it would be politically stupid to
Speaker 1: say that they didn't want to have an exception for
Speaker 1: rape and incest. But in practical terms, they understood that
Speaker 1: we needed to say as much. But rave and insist
Speaker 1: exceptions contradict the idea of fetal personhood, which is of
Speaker 1: course the core tenant of the anti a worship movement,
Speaker 1: because if if you have a rights holding person, you're
Speaker 1: not allowed to kill that person because they were conceived,
Speaker 1: you know, and rape were incest, which is why they
Speaker 1: can justify this life of the pregnant person example. So
Speaker 1: I think what we're seeing now is that states are
Speaker 1: feeling either that in their own states things are so
Speaker 1: polarized that voters will accept the elimination of raper incest
Speaker 1: exceptions or anyway that there won't be any political consequences
Speaker 1: because voters wouldn't select a Democrat even if they don't
Speaker 1: like their state's subborshion policy. And you're seeing that states
Speaker 1: are so confident that the Supreme Court is going to
Speaker 1: do whatever they want that they don't have to kind
Speaker 1: of silence unpopular positions to avoid offending the justices because
Speaker 1: They think essentially that they've got this in the bag
Speaker 1: and Rob, We're just going to go no matter what
Speaker 1: they do. It seems surprising the states are not even
Speaker 1: waiting to hear what the Supreme Court is going to
Speaker 1: say by June or July at the latest about yep, yeah,
Speaker 1: I mean, this is what happens. I think when you
Speaker 1: have a court that's viewed as partisan, it does harm
Speaker 1: to the rule of law because people in legislatures don't
Speaker 1: treat the Court as judges. They treat them as partisans,
Speaker 1: and they base their own decisions as legislators on predictions
Speaker 1: about what they think of partisan court would do rather
Speaker 1: than on the precedence the court has actually laid out.
Speaker 1: And so the more people view the court as partisans,
Speaker 1: the more this kind of you know, damage will spread,
Speaker 1: and the more it may affect many people's perceptions of
Speaker 1: the court and its legitimacy. What happens if, as expected,
Speaker 1: the Supreme Court weekends or even overturns Row, Well, we
Speaker 1: see more of these laws or are they already on
Speaker 1: the books? There are some on the books. So there
Speaker 1: are a number of states that have pre row bands
Speaker 1: close to ten that simply have sort of sat there
Speaker 1: not being in effect, but that might be kind of
Speaker 1: revived like zombies should Roll be overturned. A number of
Speaker 1: other states have passed so called trigger laws more recently
Speaker 1: that would essentially go into effect were oviewed to be overturned,
Speaker 1: and so close to half the states would likely have
Speaker 1: something like a band coming into effect quite quickly after
Speaker 1: Rows overturned. Of course, there'll be lots of legal skirmishing
Speaker 1: about that. There'll be state constitutional challenges to some of
Speaker 1: these bills. They'll be debates about what exactly is needed
Speaker 1: to trigger the trigger laws, but that is what we
Speaker 1: are expecting going forward. Is it better if the Supreme
Speaker 1: Court just overturns ROW instead of cutting it back bit
Speaker 1: by bit and pretending that it's still viable. I think
Speaker 1: yes and no. I mean I think historically abortion rights
Speaker 1: supporters would have wanted a clearer overruling of ROW, because
Speaker 1: that would at least give people the opportunity to organize
Speaker 1: politically who support abortion rights to counter that. I think
Speaker 1: the concern is that, you know, the world we live
Speaker 1: in is so polarized now that the reversal of ROW
Speaker 1: might not results in the kind of backlash we would
Speaker 1: have anticipated. Ten or fifteen years ago, because the question,
Speaker 1: I think is not just whether the court's legitimacy you
Speaker 1: would be damaged by the reversal, but whether that damage
Speaker 1: would translate into anything politically that the Court would care about.
Speaker 1: And I think that's much harder to predict. So don't
Speaker 1: I don't know if you're a supporter of a worship
Speaker 1: rates whether you'd be happier with a decision reversing Row
Speaker 1: outright or something that's more muddied, simply because I think
Speaker 1: predicting what kind of backlash will see is so challenging.
Speaker 1: Is the next step for anti abortion forces trying to
Speaker 1: prohibit the use, sale, or prescription of contraceptives potentially? I
Speaker 1: mean one of the ways that that might happen is
Speaker 1: that there's always been a disagreement within the anti abortion movement,
Speaker 1: and really I think the country large about the line
Speaker 1: between aborshition and contraception. Many may remember during fights about
Speaker 1: the contraceptive mandate of Obamacare that conservatives were complaining about
Speaker 1: having to subsidize what they've viewed as a porson inducing drugs,
Speaker 1: and those included things like emergency contraceptives and i U
Speaker 1: d s and so in a world where states can
Speaker 1: ban abortion, there's going to be a real fight about
Speaker 1: what abortion actually is and whether it includes some things
Speaker 1: many people view as contraceptives, and that, of course, could
Speaker 1: lead to a more direct challenge to the idea that
Speaker 1: there is a right to use contraception in the first place.
Speaker 1: In the future, could you envision the Supreme Court prohibiting
Speaker 1: even democratic led states from allowing abortions? Yes, it's possible.
Speaker 1: I mean so. Anti abortion lawyers are already asking the
Speaker 1: Court to recognize the personhood of the fetus, which would
Speaker 1: mean abortion would violate the Due process and Equal Protection clause.
Speaker 1: That would be unconstitutional everywhere. I don't expect the Court
Speaker 1: necessarily to announce it or ruling like that this year,
Speaker 1: but I think it's quite likely that we'll see an
Speaker 1: effort to get the Court to do so in the
Speaker 1: near future. And whether that taste off, I think is
Speaker 1: something will have to wait several years to find out,
Speaker 1: but that strategy will definitely be put before the court.
Speaker 1: Maryland is joining fortune other states in allowing trained medical
Speaker 1: professionals other than physicians to perform abortions. That was over
Speaker 1: the veto of the governor. Are we seeing some states
Speaker 1: trying to shore up the right to an abortion. Yeah,
Speaker 1: we're seeing both states that are kind of codifying protections
Speaker 1: for abortion, as well as states that are trying to
Speaker 1: take more concrete steps to expand access, so for example,
Speaker 1: allowing people who are not licensed physicians, like you know,
Speaker 1: physician extenders or nurse practitioners to perform abortions. Some states
Speaker 1: are considering becoming so called sanctuaries and helping to fund
Speaker 1: travel and services for people traveling from states where abortion
Speaker 1: is illegal. So I think that's something that we would
Speaker 1: expect to see. Thanks so much, Mary. That's Mary Ziegler,
Speaker 1: a professor at the Florida State University College of Law.
Speaker 1: For the first time, Chief Justice John Roberts joined the
Speaker 1: court's liberal wing in blasting the conservative majority's handling of
Speaker 1: the stream of emergency request called the Shadow Docket. The
Speaker 1: Court temporarily reinstated a Clean Water Act rule issued by
Speaker 1: the Trump administration that scale back federal protections for streams,
Speaker 1: wet lands, and other bodies of water. Joining these environmental
Speaker 1: law professor Pat Parento of the Vermont Law School, what
Speaker 1: was your reaction to this order? Pat? What's really striking
Speaker 1: is why does environmental law seem to be in the
Speaker 1: center of their bulls eye. This is the third time
Speaker 1: now within what the last eight months there and certainly
Speaker 1: was in the last year, two questionable grants of cert
Speaker 1: in the West Virginia case involving greenhouse gas emissions from
Speaker 1: power plants, and then the sack A case involving the
Speaker 1: Clean Water Act, and now this crazy unjustified stay. I've
Speaker 1: got another Clean Water Act rules. So three times the
Speaker 1: court has issued very very questionable decisions or orders really
Speaker 1: not to say orders, and they seem to be wanting
Speaker 1: to change administrative law using environmental law. That seems to
Speaker 1: be part of what the agenda is, if there is one.
Speaker 1: This is about the administrative state, yes, and the environmental
Speaker 1: rules that they're all up because of course we had
Speaker 1: the Trump rules that had to be replaced. So those
Speaker 1: are targets of opportunity for a court intent on rolling
Speaker 1: back agency power. Tell us what the rule is here,
Speaker 1: what happened? So this is a rule that deals with
Speaker 1: what are called water quality certifications. It's Section four oh
Speaker 1: one of the Clean Water Act, and in it, Congress
Speaker 1: basically wanted to preserve the authority of states to protect
Speaker 1: their water quality when federal agencies issue licenses like FIR,
Speaker 1: the Federal Energy Regulatory Commission for hydroelectric dams and gas
Speaker 1: pipelines and infrastructure like that, and also other forms of
Speaker 1: federal permits, specifically Core of Engineer Section four oh four permits,
Speaker 1: which are for everything under the sun, not just pipelines
Speaker 1: and transmission lines and highways, but every kind of development
Speaker 1: that it involves discharge of dread or film material into
Speaker 1: wetlands and other streams. So incredibly broad scope of authority
Speaker 1: and necessary because otherwise the states are preempted by federal
Speaker 1: law and don't have control over these projects that are
Speaker 1: licensed by the federal government. So for fifty years we've
Speaker 1: we've had a regime in place where the states were
Speaker 1: exercising this authority, and it has been twice upheld by
Speaker 1: the U. S. Supreme Court, once in an opinion by
Speaker 1: Justice Santa Day O'Connor and what's called the PUD Number one,
Speaker 1: a case in which she wrote that this is a
Speaker 1: critical authority that states have to protect not just sort
Speaker 1: of water quality from chemical pollution, but also the equot
Speaker 1: integrity if you will, up streams, including fisheries, habitat. The
Speaker 1: case involves salmon habitat in Washington State. Right, And then
Speaker 1: in a later case, just the suitor wrote for an
Speaker 1: unanimous Supreme Court that this authority was broad enough that
Speaker 1: it applied even where there wasn't a direct discharge from
Speaker 1: a point source, which is the typical way that the
Speaker 1: Clean Water Act regulates. It was even broader than that.
Speaker 1: So that's what's that issue here is state's rights. States
Speaker 1: power to protect their water quality from projects that are
Speaker 1: licensed by the federal government. The court issued this order
Speaker 1: and it's supposed to be on a showing of irreparable harm.
Speaker 1: What's happening now? What kind of harm are these you know,
Speaker 1: are these states talking about? Well, they can't point to
Speaker 1: any specific instance where the reinstatement of the pre Trump rule.
Speaker 1: That's what's that issue here again is Trump came along
Speaker 1: like he did with so many any other rules, and
Speaker 1: completely changed the interpretation of the Clean Water Act to
Speaker 1: say a number of things, including that states authority was
Speaker 1: both limited in time that they had to act faster
Speaker 1: than they traditionally have been acting, and also limited in
Speaker 1: scope that they couldn't do as much as states wanted
Speaker 1: to to not only protect water resources but also control
Speaker 1: fossil fuel infrastructure. That's the real crux of the controversy here.
Speaker 1: The people that are opposed to what the Biden administration
Speaker 1: is doing are people including Red states and Red state
Speaker 1: attorneys general, who are in favor of more fossil fuel development,
Speaker 1: including gas pipelines, and they don't like the fact that
Speaker 1: Biden is now going to return to a rule that
Speaker 1: would allow states to use a broad array of reasons
Speaker 1: to either object to these projects or at least condition
Speaker 1: them to mitigate them. So the point here is the
Speaker 1: Biden administration has not yet adopted a new rule. They've
Speaker 1: gone back to the pre Trump rule, and there is
Speaker 1: no evidence that any project has been stopped as a
Speaker 1: result of what the Biden administration has done. That's why
Speaker 1: Kagan wrote her dissent. She said, there's no harm here
Speaker 1: to justify this extraordinary use of an emergency power to
Speaker 1: stay something that's poses an immediate, irreparable threat. There isn't
Speaker 1: any nor is there any reason to not wait for
Speaker 1: the Ninth Circuit to issue its decision. This issue is
Speaker 1: on appeal before the Ninth Circuit. There's an oral argument
Speaker 1: schedule for next month, so you know, the Supreme Court
Speaker 1: could simply wait, as it usually does, for the Ninth
Speaker 1: Circuit to rule. Who knows the Ninth Circuit might overturn
Speaker 1: the lower court's decision, which is the one the Supreme
Speaker 1: Court has stayed. Right, So the Supreme Court isn't even
Speaker 1: willing to wait for the Ninth Circuit to take an action,
Speaker 1: and there's no harm in the meantime from waiting. But
Speaker 1: that's where we are with the Supreme Court. The Supreme
Speaker 1: Court issuing this day. It's not really going to stay
Speaker 1: anything that's happening. It's not going to be you know,
Speaker 1: adverse to environmental interests. Well, it reinstates the Trump rules.
Speaker 1: That's the effect of it. Because what happened was the
Speaker 1: lower court Judge Alsa in the Northern District of California
Speaker 1: is the district court judge who issued the order of
Speaker 1: vacating the Trump Rules. So the effect of what the
Speaker 1: Supreme Court has done is to stay Judge Alsup's order,
Speaker 1: which has the effect of reinstating the Trump Rule. So
Speaker 1: Judge Alsap in his analysis said, if you leave the
Speaker 1: Trump Rule in effect, based on the evidence before me
Speaker 1: that's in the administrative record, I conclude there will be
Speaker 1: environmental harm from leaving this rule in place for the
Speaker 1: time it's going to take to replace it with the
Speaker 1: new rule. Secondly, he said, I conclude there is no
Speaker 1: significant disruption. That's one of the criteria judges have to
Speaker 1: evaluate in deciding whether to vacate a rule. Will the
Speaker 1: vague cation of the rule caused significant disruption? He concluded
Speaker 1: based on the record, No, there won't be significant disruption,
Speaker 1: but there will be significant environmental harm if you leave
Speaker 1: this rule on the books. And finally, he said, there
Speaker 1: are very serious questions about the legality of the Trump rule,
Speaker 1: such that it's very unlikely that when the new rule
Speaker 1: comes out it will look anything like the Trump rule.
Speaker 1: It's gonna be very different. It may not be what
Speaker 1: existed before, but it's going to be very different from
Speaker 1: the Trump rule. So that's the kind of very careful
Speaker 1: analysis that the lower courts have to go through before
Speaker 1: they decide whether a rule should be vacated pending a
Speaker 1: new rule. And that's what he did, and the Ninth
Speaker 1: Circuit is, of course, is reviewing all of that. Maybe
Speaker 1: they will agree with him, maybe they won't, maybe they'll
Speaker 1: send it back to him. We don't know. Neither does
Speaker 1: the Supreme Court. But in the meantime, the Court has
Speaker 1: issued to stay. So now the states lack the authority
Speaker 1: they've traditionally had, as they say, for decades, they now
Speaker 1: lack the authority to protect their water resources from federally
Speaker 1: authorized projects. Let's talk about the shadow docket, because Justice
Speaker 1: Atlanta Kagan, who has been a critic of the shadow docket,
Speaker 1: said it renders the Court's emergency docket, not for emergencies
Speaker 1: at all, just another place for merits determinations, except without
Speaker 1: full briefing and argument. Do you agree with her that
Speaker 1: the Court is using the shadow docket too much? Oh? Yes,
Speaker 1: I mean this is not responsible judicial sort of impartial,
Speaker 1: non activist, objective and restrained judicial conduct at all. And
Speaker 1: by the way, you know, Chief Justice Roberts sided with
Speaker 1: Keagan on this. So once again the effect of Trump's
Speaker 1: appointees to the Court becomes huge here because if it
Speaker 1: weren't for for that, Roberts might well be the swing
Speaker 1: vote in these kinds of situations. But now his vote
Speaker 1: is irrelevant because there are five solid conservative votes to
Speaker 1: do what they want, and apparently what they want is
Speaker 1: to continually look for and then of course they're clerks,
Speaker 1: are the ones that are looking for them. But look
Speaker 1: through these petitions to the Court and they seem to
Speaker 1: be singling out environmental petitions coming from red states. The
Speaker 1: opposition here is is clearly partisant. There's no blue democratic
Speaker 1: state at all that's opposed to what the Biden administration
Speaker 1: is doing. In fact, they're pleading with the Biden administration
Speaker 1: to move forward more quickly with the rulemaking and get
Speaker 1: it back to what it was before. Right. So this
Speaker 1: is straight partisan politics manifested through the Court using this
Speaker 1: shadow docket with an agenda to identify rules that the
Speaker 1: Conservatives for whatever reason, don't like, are skeptical of, and
Speaker 1: get them up to the Supreme Court. This stay ordered,
Speaker 1: by the way, isn't just holding off until the Ninth
Speaker 1: Circuit decides. The order also says if there's a petition
Speaker 1: for Sir sharr I, which of course there there would
Speaker 1: be probably either way, but certainly there would be if
Speaker 1: the Ninth Circuit upholds Judge Outsels decisions vacating the Trump
Speaker 1: rule the Supreme Court, and this order has said if
Speaker 1: there's a petition for certain if we grant it, then
Speaker 1: this day is going to stay in place until we've
Speaker 1: decided the merits of the case. That's what Kagan is
Speaker 1: getting at. She's really saying what the Court is doing
Speaker 1: is saying, we're going to put a hold on everything
Speaker 1: until we get a chance to decide whether this whatever
Speaker 1: the Biden administration is going to do is lawful or not.
Speaker 1: That puts everything in limbo for a very long period
Speaker 1: of time, because we know how long it takes for
Speaker 1: the Supreme Court to not only get around a hearing
Speaker 1: argument after briefing, but actually issuing decisions. We're talking about
Speaker 1: a year or more before we would get any final
Speaker 1: resolute In the meantime, the States are left in this
Speaker 1: limbo mode where they're stuck with a Trump rule that
Speaker 1: has constrained their authority and they can't seem to move
Speaker 1: forward now. Also, just back to to Justice Robert this
Speaker 1: is the ninth time he's joined with the liberals on
Speaker 1: the losing side of five to four decisions. Since Barrett
Speaker 1: joined the court, seven have been in shadow docket rulings.
Speaker 1: But this is the first time, though, that he actually
Speaker 1: joined with a criticism of the shadow docket by Justice
Speaker 1: Kagan in this instance. So is that significant? Yes, I
Speaker 1: think he's he's worried about the institutional reputation. He's made
Speaker 1: that point before, not only in statements in some of
Speaker 1: his opinions, but in his public pronouncements, which are limited,
Speaker 1: of course, But I think the Chief Justice is very
Speaker 1: worried about the reputation of the Supreme Court as an institution.
Speaker 1: It's beginning to look like an extension of the Republican Party.
Speaker 1: It's beginning to look is if the only voices it's
Speaker 1: listening to are those that are opposed to federal regulation
Speaker 1: and not those that are in support. Even when it
Speaker 1: comes to a split in the states, as I said,
Speaker 1: there are more states in favor put first of all
Speaker 1: putting a stay or a hold on the Trump rule
Speaker 1: and then replacing it. Then then there are states that
Speaker 1: are in favor of it. So again, it really does,
Speaker 1: I think concern the Chief Justice that not just the
Speaker 1: optics of what the Supreme Court is doing, but the
Speaker 1: reality of what the Court is doing. And particularly now
Speaker 1: the third time, within big environmental rules, it seems to
Speaker 1: be sending the message that the Court is got a
Speaker 1: ten ear when it comes to what are the real
Speaker 1: purposes and reasons for these rules? Why are these rules
Speaker 1: on the books, what kinds of problems are they intended
Speaker 1: to address, and they're only listening to those who oppose
Speaker 1: regulation without actually proposing alternatives to the relation. None of
Speaker 1: these three cases that we're talking about, and none of
Speaker 1: those cases are we seeing the opponents of the environmental
Speaker 1: rules proposing alternatives that actually address the problems the rules
Speaker 1: are designed to address. That's where we are a Supreme
Speaker 1: Court that highly partisan and only listening to one side.
Speaker 1: Thanks Pat. That's Professor Pat Parento of the Vermont Law School.
Speaker 1: And that's it for this edition of The Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news honor
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Speaker 1: Grosso and you're listening to Bloomberg