1 00:00:00,040 --> 00:00:02,480 Speaker 1: This morning, the Supreme Court ordered a lower court to 2 00:00:02,560 --> 00:00:04,720 Speaker 1: take a new look at a New York law that 3 00:00:04,880 --> 00:00:09,799 Speaker 1: bans businesses from imposing fees on credit card purchases, unanimously 4 00:00:09,920 --> 00:00:13,039 Speaker 1: reversing the Second Circuit Court of Appeals. Our co host 5 00:00:13,080 --> 00:00:15,960 Speaker 1: and Bloomberg Supreme Court reporter Greg's store was there and 6 00:00:16,079 --> 00:00:18,560 Speaker 1: is here now to tell us about it, Greg, the 7 00:00:18,600 --> 00:00:22,880 Speaker 1: New York law seems ambiguous. Tell us what it actually bans. 8 00:00:23,680 --> 00:00:28,320 Speaker 1: It's definitely ambiguous. The law just says no surcharges, but 9 00:00:28,440 --> 00:00:32,400 Speaker 1: it doesn't say it doesn't define the word surcharge. At 10 00:00:32,400 --> 00:00:34,279 Speaker 1: the Supreme Court, the lawyers for the State of New 11 00:00:34,360 --> 00:00:37,320 Speaker 1: York said, it doesn't mean you can't have two different 12 00:00:37,320 --> 00:00:40,880 Speaker 1: prices for cash and credit. It just means you can't 13 00:00:40,880 --> 00:00:45,200 Speaker 1: have a regular price and then impose a surcharge higher 14 00:00:45,240 --> 00:00:48,320 Speaker 1: price for credit cards. And that was basically the way 15 00:00:48,760 --> 00:00:52,159 Speaker 1: the court, uh, you know, construed the law for the 16 00:00:52,159 --> 00:00:57,240 Speaker 1: purposes of its ruling. Well, the in in in construing it, 17 00:00:57,320 --> 00:00:59,560 Speaker 1: the court said that the law deals with the free 18 00:00:59,600 --> 00:01:01,920 Speaker 1: speech rights of merchants, and that seems to be the 19 00:01:02,560 --> 00:01:04,800 Speaker 1: most important thing that comes out of today. But how 20 00:01:04,800 --> 00:01:09,640 Speaker 1: does the law that bands commercial searcharges deal with speech. Well, 21 00:01:09,680 --> 00:01:12,800 Speaker 1: what John Roberts wrote the Court's opinion, and what he 22 00:01:12,840 --> 00:01:16,759 Speaker 1: said is this is not like price regulation. Price regulation 23 00:01:16,880 --> 00:01:19,840 Speaker 1: might have been to say, um, if you're selling a sandwich, 24 00:01:19,840 --> 00:01:22,000 Speaker 1: it has to be ten dollars. What he said was, 25 00:01:22,160 --> 00:01:25,200 Speaker 1: this was a way about communicating the fact that you're 26 00:01:25,240 --> 00:01:27,319 Speaker 1: going to charge a different price on that sandwich. You're 27 00:01:27,319 --> 00:01:30,679 Speaker 1: gonna charge ten dollars in thirty cents, uh if somebody 28 00:01:30,760 --> 00:01:33,320 Speaker 1: is playing with a credit card. And as he understood it, 29 00:01:33,319 --> 00:01:37,320 Speaker 1: it means you can't say, uh, ten dollars with an 30 00:01:37,319 --> 00:01:40,679 Speaker 1: extra thirty cents for for the credit card. And he said, 31 00:01:40,720 --> 00:01:43,560 Speaker 1: because of that, it is speech. And therefore the lower 32 00:01:43,560 --> 00:01:45,600 Speaker 1: court has to do something it didn't do before, which 33 00:01:45,640 --> 00:01:48,520 Speaker 1: is analyzed under the tougher test that the Supreme Court 34 00:01:48,720 --> 00:01:51,840 Speaker 1: has laid out for speech regulations. So then it's going 35 00:01:51,880 --> 00:01:54,360 Speaker 1: to go back to the Second Circuit. And is the 36 00:01:54,440 --> 00:01:59,120 Speaker 1: Second Circuit necessarily going to rule that the laws unconstitutional 37 00:01:59,200 --> 00:02:03,680 Speaker 1: under this toughest andered No, not at all. Uh. The 38 00:02:03,680 --> 00:02:08,720 Speaker 1: Supreme Court definitely left that question open. Uh, Because this 39 00:02:08,800 --> 00:02:12,240 Speaker 1: is a commercial speech regulation, not say, a restriction on 40 00:02:12,320 --> 00:02:16,560 Speaker 1: political speech. It's a little easier for states to justify 41 00:02:16,680 --> 00:02:20,600 Speaker 1: that type of regulation. The scrutiny is a little less 42 00:02:20,600 --> 00:02:23,880 Speaker 1: strict for that. Uh So, it's it's certainly possible that 43 00:02:24,000 --> 00:02:27,120 Speaker 1: when the lower court reassesses it, it will say that 44 00:02:27,200 --> 00:02:30,639 Speaker 1: New York is justified in having this type of law. 45 00:02:30,680 --> 00:02:34,120 Speaker 1: Greg It's given the ambiguity here, it seems, you know, 46 00:02:34,200 --> 00:02:37,240 Speaker 1: you could argue there's not much distinction between the types 47 00:02:37,280 --> 00:02:40,040 Speaker 1: of laws we might be talking about. But are there 48 00:02:40,080 --> 00:02:41,760 Speaker 1: other states that this is going to affect? Her? Is 49 00:02:41,800 --> 00:02:43,680 Speaker 1: this sort of a sweet generous thing in New York? 50 00:02:43,960 --> 00:02:46,680 Speaker 1: Now there are about ten states that do something like this. 51 00:02:46,800 --> 00:02:49,160 Speaker 1: They're not worded exactly the same. And actually there used 52 00:02:49,160 --> 00:02:51,520 Speaker 1: to be a federal ban on on search charges, but 53 00:02:51,600 --> 00:02:53,840 Speaker 1: then that expired, which is why you have all these 54 00:02:53,840 --> 00:02:56,840 Speaker 1: state bands. And a couple of those states, Texas and 55 00:02:56,880 --> 00:02:59,920 Speaker 1: Florida have cases that have been on hold here at 56 00:02:59,919 --> 00:03:02,080 Speaker 1: the Supreme Court waiting for this New York law to 57 00:03:02,120 --> 00:03:06,440 Speaker 1: be decided. So there will be other litigation, and because 58 00:03:06,440 --> 00:03:09,239 Speaker 1: the statutes are not exactly the same, it's not clear 59 00:03:09,280 --> 00:03:12,160 Speaker 1: that all of them will come out the same way, Greig. 60 00:03:12,240 --> 00:03:18,360 Speaker 1: Let's talk about the concurrence by Justice Sonia. So to Mayor, Yeah, 61 00:03:18,360 --> 00:03:21,680 Speaker 1: she said because all this ambiguity we're talking about. She 62 00:03:21,880 --> 00:03:25,320 Speaker 1: along with an unusual pairing Justice sam Alito, said, what 63 00:03:25,360 --> 00:03:27,480 Speaker 1: the Appeals Court should have done is it should have 64 00:03:27,520 --> 00:03:29,880 Speaker 1: asked New York's highest court, it's called the New York 65 00:03:29,919 --> 00:03:32,399 Speaker 1: Court of Appeals, asked it to tell us, to tell 66 00:03:32,480 --> 00:03:35,440 Speaker 1: us the federal courts what this law means. She said 67 00:03:35,480 --> 00:03:37,360 Speaker 1: she would have sent the case back down there in 68 00:03:37,480 --> 00:03:40,200 Speaker 1: ordered that to happen. It's almost like she was saying, Greg, 69 00:03:40,200 --> 00:03:43,160 Speaker 1: that nobody really knows what this law means. Yeah, she 70 00:03:43,320 --> 00:03:45,800 Speaker 1: was saying that, and uh, it's still not clear that 71 00:03:45,880 --> 00:03:50,720 Speaker 1: anybody knows what the law is. But but the you know, 72 00:03:50,840 --> 00:03:52,880 Speaker 1: in part because of the way the New York state 73 00:03:52,960 --> 00:03:56,480 Speaker 1: lawyers presented the case at the Supreme Court, a majority 74 00:03:56,520 --> 00:03:59,320 Speaker 1: of the Supreme Court was comfortable enough and saying this 75 00:03:59,400 --> 00:04:01,840 Speaker 1: is how we're going to interpret the law. Let's switch 76 00:04:01,880 --> 00:04:04,320 Speaker 1: gears a little bit, Greg and tell us what you 77 00:04:04,400 --> 00:04:08,600 Speaker 1: know about the Neil Gorsich vote. Well, we are going 78 00:04:08,640 --> 00:04:11,760 Speaker 1: to have a big week next week. So increasingly looks 79 00:04:11,760 --> 00:04:14,560 Speaker 1: like we're going to have a big time confrontation between 80 00:04:14,600 --> 00:04:17,800 Speaker 1: Republicans and the Democrats in the Senate next week. You're 81 00:04:17,800 --> 00:04:22,120 Speaker 1: going to have the Judiciary Committee voting on Monday. After that, 82 00:04:22,160 --> 00:04:25,880 Speaker 1: the question will be can Democrats block of vote? Increasingly, 83 00:04:25,920 --> 00:04:28,440 Speaker 1: it looks like they do have enough to fill a 84 00:04:28,440 --> 00:04:31,719 Speaker 1: buster the nomination. Not every Senator has come out, but 85 00:04:32,320 --> 00:04:34,880 Speaker 1: only one is said that that he would vote to 86 00:04:34,920 --> 00:04:37,880 Speaker 1: allow a vote to go forward. That's gonna mean what 87 00:04:37,920 --> 00:04:40,960 Speaker 1: we've been calling the nuclear option. UH. Senate Republicans are 88 00:04:40,960 --> 00:04:42,680 Speaker 1: gonna have to decide whether they're going to change the 89 00:04:42,760 --> 00:04:45,520 Speaker 1: rules so that you no longer need sixty votes to 90 00:04:45,560 --> 00:04:49,640 Speaker 1: approve of Supreme Court nominee. You only need a majority, 91 00:04:49,920 --> 00:04:53,160 Speaker 1: and Republicans have a majority in the Senate. That looks 92 00:04:53,160 --> 00:04:56,200 Speaker 1: to be in the ballgame. UH. Late next week, UH, 93 00:04:56,360 --> 00:04:59,359 Speaker 1: Senate Republican leader Mitch McConnell says we're going to have 94 00:04:59,360 --> 00:05:01,679 Speaker 1: a vote and we're going to confirm him by Friday 95 00:05:01,720 --> 00:05:05,360 Speaker 1: of next week. Has McConnell said whether he will use 96 00:05:05,400 --> 00:05:09,599 Speaker 1: the nuclear option? We assume he will, But has he said, Yeah, 97 00:05:09,640 --> 00:05:12,120 Speaker 1: He has not explicitly said it, but he has said 98 00:05:12,160 --> 00:05:14,080 Speaker 1: and he may have some other options that really get 99 00:05:14,120 --> 00:05:17,640 Speaker 1: into the details of set up procedures, but but he 100 00:05:17,920 --> 00:05:19,919 Speaker 1: what he has said is Neil Gorsuch will be confirmed, 101 00:05:19,920 --> 00:05:23,359 Speaker 1: and he has not ruled out the nuclear option al right, Well, 102 00:05:23,520 --> 00:05:26,839 Speaker 1: next week will be a big week for the legal community, 103 00:05:26,920 --> 00:05:29,640 Speaker 1: the Supreme Court, and for us as well. Thanks so 104 00:05:29,720 --> 00:05:32,560 Speaker 1: much for that report. That's our co host and Bloomberg 105 00:05:32,560 --> 00:05:36,279 Speaker 1: Supreme Court reporter Greg Store, who is at the Court 106 00:05:36,360 --> 00:05:40,239 Speaker 1: this morning for the latest opinion from the Supreme Court.