1 00:00:03,200 --> 00:00:09,640 Speaker 1: This is Bloombird Law with June Brusso from Bloomberg Radio. 2 00:00:09,760 --> 00:00:11,840 Speaker 1: Do you know how much that cost tested sponsorship dollars? 3 00:00:12,119 --> 00:00:15,320 Speaker 1: With all due respect, Mr Dawn, I had no idea. 4 00:00:15,400 --> 00:00:22,400 Speaker 1: You've got an experimental surgery to have your removed said, 5 00:00:22,440 --> 00:00:24,919 Speaker 1: with all due respect. That doesn't mean you get to 6 00:00:24,960 --> 00:00:27,720 Speaker 1: say whatever you want to say to me, he does. No, No, 7 00:00:27,800 --> 00:00:32,400 Speaker 1: it doesn't mean convention. That's from the movie Talladega Nights, 8 00:00:32,479 --> 00:00:35,400 Speaker 1: the Ballot of Rickey Bobby, and it's a line. Fifth 9 00:00:35,479 --> 00:00:39,040 Speaker 1: Circuit Judge James Hoe referenced in calling out the claims 10 00:00:39,080 --> 00:00:42,000 Speaker 1: of a dissenting judge who said he was writing with 11 00:00:42,120 --> 00:00:45,159 Speaker 1: all due respect, but then used a quote from Macbeth 12 00:00:45,280 --> 00:00:49,040 Speaker 1: about the sound and fury of idiots. Both pretty mild 13 00:00:49,080 --> 00:00:52,120 Speaker 1: put downs compared to a recent opinion of Ninth Circuit 14 00:00:52,240 --> 00:00:55,600 Speaker 1: Judge Lawrence Van Dyke, who wrote a concurrence to his 15 00:00:55,680 --> 00:01:00,000 Speaker 1: own majority opinion dripping in sarcasm about his liberal colleague. 16 00:01:00,440 --> 00:01:03,360 Speaker 1: These are just the latest examples of the sniping and 17 00:01:03,480 --> 00:01:07,680 Speaker 1: politics spilling into judicial opinions in the circuit courts. Joining 18 00:01:07,680 --> 00:01:10,759 Speaker 1: me as Rosscoperman, a legal writing coach who has taught 19 00:01:10,760 --> 00:01:14,440 Speaker 1: classes for new Federal judges for a decade. So Ross 20 00:01:14,720 --> 00:01:17,959 Speaker 1: Judge Van Dyke wrote a majority opinion which found that 21 00:01:18,000 --> 00:01:20,800 Speaker 1: a closure of gun shops due to COVID was a 22 00:01:20,920 --> 00:01:24,600 Speaker 1: violation of the Second Amendment. Then he wrote a concurrence 23 00:01:25,040 --> 00:01:28,720 Speaker 1: to his own majority opinion in anticipation that the full 24 00:01:28,800 --> 00:01:32,640 Speaker 1: circuit would reverse his decision. How unusual is that? So 25 00:01:32,800 --> 00:01:36,000 Speaker 1: he did something I can't remember seeing before. So this is, 26 00:01:36,040 --> 00:01:37,760 Speaker 1: as he said, a Second Amendment case. So it's a 27 00:01:37,840 --> 00:01:41,039 Speaker 1: high profile case. So he was sort of assuming that 28 00:01:41,120 --> 00:01:44,679 Speaker 1: the case was going to go on bonk, and his 29 00:01:44,800 --> 00:01:48,919 Speaker 1: concurrence to himself basically tried to write what he thinks 30 00:01:49,200 --> 00:01:52,600 Speaker 1: the majority will come up with. So he wrote an opinion, 31 00:01:52,680 --> 00:01:54,800 Speaker 1: you know, going the opposite way from what he wanted. 32 00:01:55,000 --> 00:01:56,560 Speaker 1: But then what he did is he had all these 33 00:01:56,560 --> 00:01:59,960 Speaker 1: footnotes and thought bubbles with a very kind of snarky, 34 00:02:00,120 --> 00:02:05,320 Speaker 1: sarcastic tone, essentially claiming that anybody who supports this particular 35 00:02:05,320 --> 00:02:09,280 Speaker 1: California gun regulation was just completely making things up and 36 00:02:09,360 --> 00:02:12,360 Speaker 1: had ulterior motives, almost like to put them on the 37 00:02:12,400 --> 00:02:15,160 Speaker 1: defensive before they've even had a chance to rehear the case, 38 00:02:15,400 --> 00:02:17,560 Speaker 1: sort of show that you can have a lot of 39 00:02:17,560 --> 00:02:20,400 Speaker 1: what he would probably say, kind of gobbled the standards 40 00:02:20,400 --> 00:02:24,000 Speaker 1: and quotations from case law and then picked a very 41 00:02:24,240 --> 00:02:27,440 Speaker 1: strong suggestion that they were slimy for lack of a 42 00:02:27,480 --> 00:02:29,720 Speaker 1: better word, and we're going to sort of make up 43 00:02:29,720 --> 00:02:32,120 Speaker 1: the law in order to uphold the gun regulation. It 44 00:02:32,240 --> 00:02:35,519 Speaker 1: was dripping in sarcasm. I'd say. In the past, he's 45 00:02:35,520 --> 00:02:39,520 Speaker 1: accused his colleagues of engaging in mischief and jiu Jitsu 46 00:02:39,840 --> 00:02:42,480 Speaker 1: compared them to a sullen kid who spits in the 47 00:02:42,520 --> 00:02:46,280 Speaker 1: cookie jar after being caught red handed. What's the point 48 00:02:46,280 --> 00:02:48,919 Speaker 1: of this, do you think to get attention? One thing 49 00:02:48,960 --> 00:02:52,480 Speaker 1: I'd say is he's absolutely not the only judge alive 50 00:02:52,720 --> 00:02:55,280 Speaker 1: or path who's used any of that rhetoric. I mean, 51 00:02:55,280 --> 00:02:58,480 Speaker 1: it's all a question of degree right and also contacts 52 00:02:58,639 --> 00:03:02,119 Speaker 1: and substantive point in question as far as why he's 53 00:03:02,160 --> 00:03:04,960 Speaker 1: doing it. I mean, obviously I can't speak for somebody else, 54 00:03:05,040 --> 00:03:07,840 Speaker 1: but he's a very new judge on the Ninth Circuit. 55 00:03:08,320 --> 00:03:11,200 Speaker 1: You know, his nomination was controversial. I think he's the 56 00:03:11,200 --> 00:03:14,120 Speaker 1: A B. It's onto not qualified, although many people argued 57 00:03:14,200 --> 00:03:16,799 Speaker 1: with that conclusion. He's certainly very smart. I mean, he's 58 00:03:16,840 --> 00:03:19,760 Speaker 1: got a great academic credentials, but he's a new judge. 59 00:03:19,800 --> 00:03:22,560 Speaker 1: He's in that sort of federalist society group that most 60 00:03:22,600 --> 00:03:26,040 Speaker 1: of the President Trump's judges came from. And he's sort 61 00:03:26,040 --> 00:03:29,640 Speaker 1: of signaling, you know, we are onto what the liberals 62 00:03:29,720 --> 00:03:32,000 Speaker 1: he probably called them are democrats are up to. He's 63 00:03:32,040 --> 00:03:34,800 Speaker 1: signally that. But he's also, you know, here we are 64 00:03:34,920 --> 00:03:37,640 Speaker 1: discussing his concurrence in the case that people probably wouldn't 65 00:03:37,640 --> 00:03:41,080 Speaker 1: be talking about at all. He's certainly wanting attention, maybe 66 00:03:41,160 --> 00:03:44,280 Speaker 1: the attention of people who might one day nominate him 67 00:03:44,320 --> 00:03:46,520 Speaker 1: for the Supreme Court. It might be that he wants 68 00:03:46,560 --> 00:03:50,560 Speaker 1: the attention of other judges who are like minded and 69 00:03:50,840 --> 00:03:52,880 Speaker 1: kind of tell them, you know what, I just didn't this, 70 00:03:53,080 --> 00:03:56,280 Speaker 1: and I was really purposely snyde and sarcastic. Maybe you 71 00:03:56,320 --> 00:03:58,840 Speaker 1: should too. So it's probably some combination all the above. 72 00:03:58,880 --> 00:04:01,400 Speaker 1: I mean, I guess we should also take him literally 73 00:04:01,440 --> 00:04:04,000 Speaker 1: and seriously, and maybe that he's just in his mind 74 00:04:04,040 --> 00:04:07,640 Speaker 1: of Paul, he thinks that judges are in a bad 75 00:04:07,640 --> 00:04:11,160 Speaker 1: faith way upholding gun regulations that he would say violate 76 00:04:11,160 --> 00:04:13,920 Speaker 1: at the Second Amendment. Maybe he is actually just genuinely, 77 00:04:13,920 --> 00:04:16,640 Speaker 1: really really upset or distraught about it. Do you think 78 00:04:16,680 --> 00:04:21,279 Speaker 1: it hurts the judges credibility to have opinions that are sarcastic, 79 00:04:21,720 --> 00:04:26,760 Speaker 1: that perl insults at their colleagues on the bench. It's 80 00:04:26,800 --> 00:04:29,640 Speaker 1: a great question. I don't think it has a really 81 00:04:29,680 --> 00:04:33,440 Speaker 1: really easy, obvious answer. So one thing is there's two 82 00:04:33,520 --> 00:04:36,520 Speaker 1: different ways judges are sarcastic and opinions. The main way 83 00:04:36,520 --> 00:04:39,040 Speaker 1: it tends to be towards the counsel or the argument, 84 00:04:39,200 --> 00:04:42,719 Speaker 1: kind of implying that an argument was preposterous or ridiculous, 85 00:04:42,720 --> 00:04:46,680 Speaker 1: So a shot at the lawyers themselves. It's certainly much rarer, 86 00:04:46,920 --> 00:04:49,000 Speaker 1: although Justice Scalia was known to do this from time 87 00:04:49,040 --> 00:04:52,080 Speaker 1: to time. It's rare to take potshots that your colleagues. 88 00:04:52,279 --> 00:04:55,839 Speaker 1: So I would first say there might be different credibility 89 00:04:55,880 --> 00:04:58,960 Speaker 1: issues depending on which of those universities were in. Is 90 00:04:59,000 --> 00:05:01,039 Speaker 1: it really just about the lawyers are the case or 91 00:05:01,080 --> 00:05:03,560 Speaker 1: is it about judges? So in this case, who was 92 00:05:03,640 --> 00:05:06,520 Speaker 1: certainly about judges, and it was like a preemptive strike. 93 00:05:06,880 --> 00:05:10,440 Speaker 1: So at this point, and I think American legal history, 94 00:05:10,480 --> 00:05:12,400 Speaker 1: a lot of judges are probably just hoping to have 95 00:05:12,480 --> 00:05:16,080 Speaker 1: credibility with the like minded right there, not maybe so 96 00:05:16,160 --> 00:05:19,880 Speaker 1: much as in the past. I'm worried about general credibility. 97 00:05:20,120 --> 00:05:22,080 Speaker 1: I mean, there's a lot of tribalism going on in 98 00:05:22,120 --> 00:05:24,120 Speaker 1: our country, as you know. I don't think they're immune. 99 00:05:24,480 --> 00:05:27,880 Speaker 1: So maybe for his purposes, it makes them more credible 100 00:05:27,880 --> 00:05:30,080 Speaker 1: with people who see the law the way he does. 101 00:05:30,320 --> 00:05:32,120 Speaker 1: And just because I know a lot of judges, I'm 102 00:05:32,120 --> 00:05:33,800 Speaker 1: training them and I'm friendly with them. A lot of 103 00:05:33,800 --> 00:05:36,039 Speaker 1: people loved it. I mean a lot of judges thought 104 00:05:36,040 --> 00:05:38,960 Speaker 1: it was great. Other judges thought it was appalling, And 105 00:05:39,240 --> 00:05:41,880 Speaker 1: they might not be the sarcasm the same way that 106 00:05:42,040 --> 00:05:45,160 Speaker 1: I might. They might see it as warranted and effective. 107 00:05:45,240 --> 00:05:48,080 Speaker 1: Guess if the press who you want credibility with this circuit. 108 00:05:48,200 --> 00:05:52,520 Speaker 1: Judge James Hose opinions have also gotten a lot of attention. 109 00:05:52,880 --> 00:05:55,120 Speaker 1: In one opinion that I spoke about at the beginning 110 00:05:55,160 --> 00:05:58,320 Speaker 1: of the segment, he and Judge Juck Weener were carping 111 00:05:58,360 --> 00:06:01,920 Speaker 1: at each other. Doesn't that affect their relationship on the bench. 112 00:06:02,520 --> 00:06:05,520 Speaker 1: And these judges have to work with each other for years, 113 00:06:06,120 --> 00:06:08,839 Speaker 1: There's no doubt about it. You're absolutely right. I know 114 00:06:08,960 --> 00:06:11,400 Speaker 1: you're right because I hear these things in my work. 115 00:06:11,720 --> 00:06:14,320 Speaker 1: Judge Hoe is on the fifth circuit. That fifth circuit 116 00:06:14,400 --> 00:06:18,080 Speaker 1: is notoriously tense with different factions with judges not being 117 00:06:18,080 --> 00:06:20,960 Speaker 1: overly fond of other factions. You know their stories. So 118 00:06:21,000 --> 00:06:24,560 Speaker 1: I'll keeping the Preme Court justices have intentions. Traditionally there's 119 00:06:24,600 --> 00:06:27,480 Speaker 1: been a line they won't cross, you know. I think 120 00:06:27,720 --> 00:06:32,320 Speaker 1: Justice Scalia kind of famously made a crack about Justice Kennedy. 121 00:06:32,320 --> 00:06:35,480 Speaker 1: Even Burger fell about putting a bag over my head. 122 00:06:35,880 --> 00:06:38,800 Speaker 1: I think since then, not that I'm saying it's Justice 123 00:06:38,920 --> 00:06:41,080 Speaker 1: Lee as fault in any way, shape or form. I mean, 124 00:06:41,120 --> 00:06:44,080 Speaker 1: it's just a lot of people try to copy him. 125 00:06:44,080 --> 00:06:46,680 Speaker 1: Since then, it's been I think Judge has probably a 126 00:06:46,680 --> 00:06:49,760 Speaker 1: good example as any It's been pretty common to have 127 00:06:50,200 --> 00:06:53,039 Speaker 1: kind of name calling and a little bit of playground 128 00:06:53,120 --> 00:06:56,239 Speaker 1: kind of kids fighting on the playground rhetoric one judge 129 00:06:56,400 --> 00:06:58,200 Speaker 1: to the other. I think that what you're describing from 130 00:06:58,279 --> 00:06:59,880 Speaker 1: Judge how I mean, the Fifth Circuits had ale out 131 00:07:00,160 --> 00:07:02,919 Speaker 1: literard of pensions where you have, you know, one of 132 00:07:02,920 --> 00:07:06,400 Speaker 1: these like I'm concurring in part two be uh not 133 00:07:06,440 --> 00:07:09,920 Speaker 1: the seventh word and now three A. So, one thing 134 00:07:09,960 --> 00:07:11,760 Speaker 1: I know from getting to know a lot of judges 135 00:07:11,840 --> 00:07:13,720 Speaker 1: is they really are just like the rest of us. 136 00:07:13,840 --> 00:07:16,880 Speaker 1: You know, they don't like people taking shots at them. Yeah, 137 00:07:16,880 --> 00:07:20,320 Speaker 1: of course it causes pension. I suppose if you asked them, 138 00:07:20,400 --> 00:07:23,120 Speaker 1: they would say, that's not the most important thing to me, 139 00:07:23,320 --> 00:07:26,520 Speaker 1: you know, having like everybody get along for the Christmas party. 140 00:07:26,680 --> 00:07:29,280 Speaker 1: It's not as important to me as you know, whatever 141 00:07:29,560 --> 00:07:33,560 Speaker 1: my vision of the Constitution is. You mentioned Justice Scalia, 142 00:07:33,600 --> 00:07:39,200 Speaker 1: who was known for his brilliant writing style, fiery descents. 143 00:07:39,600 --> 00:07:43,160 Speaker 1: Do you see the kind of flare that Justice Scali ahead? 144 00:07:43,440 --> 00:07:46,920 Speaker 1: But I think people have forgotten is that of what 145 00:07:47,000 --> 00:07:50,400 Speaker 1: Justice Scalia wrote, including in this excent, was not was 146 00:07:50,440 --> 00:07:52,920 Speaker 1: not in the pot shot category, right, It wasn't in 147 00:07:52,960 --> 00:07:57,040 Speaker 1: the snarky, pure apple sauce quote unquote category. So I 148 00:07:57,080 --> 00:07:59,880 Speaker 1: think what some of these newer judges are doing without 149 00:08:00,000 --> 00:08:03,600 Speaker 1: realizing it is they're sort of copying those barbs that 150 00:08:03,720 --> 00:08:06,880 Speaker 1: Justice Lee would use, but they don't really come across 151 00:08:06,960 --> 00:08:09,920 Speaker 1: as well or as effectively because the rest of the 152 00:08:09,960 --> 00:08:13,960 Speaker 1: opinion isn't quite a strong I mean, Justice Leo sounded genuine, 153 00:08:14,080 --> 00:08:15,880 Speaker 1: but do you liked it or not? It was like 154 00:08:16,040 --> 00:08:19,040 Speaker 1: his voice and he seem a little bit more like 155 00:08:19,080 --> 00:08:21,640 Speaker 1: a pastiche or like I want to have everybody talk 156 00:08:21,720 --> 00:08:25,080 Speaker 1: about me the way people talked about Justice s Glea 157 00:08:25,200 --> 00:08:28,440 Speaker 1: saying pure apple sauce. He also, of course had the stature, 158 00:08:28,680 --> 00:08:32,840 Speaker 1: so Justice Slea even among his foes, he was just 159 00:08:32,840 --> 00:08:35,319 Speaker 1: going to get more different when he was a justice 160 00:08:35,440 --> 00:08:37,319 Speaker 1: for what he would do in writing than some of 161 00:08:37,360 --> 00:08:38,839 Speaker 1: these judges who have only been on the bench for 162 00:08:39,280 --> 00:08:42,160 Speaker 1: with years. And sometimes you know, it's like anytime there's 163 00:08:42,200 --> 00:08:44,560 Speaker 1: somebody new, you know, the new kid on the block. 164 00:08:45,080 --> 00:08:47,960 Speaker 1: Sometimes they found I know just from what I hear 165 00:08:48,200 --> 00:08:50,040 Speaker 1: so other judges who have been on the bench for 166 00:08:50,080 --> 00:08:53,520 Speaker 1: a while, they sound a little boiled or cocky, right like, Okay, 167 00:08:53,520 --> 00:08:55,360 Speaker 1: I've been doing this for two years and I now 168 00:08:55,400 --> 00:08:58,280 Speaker 1: know everything, and I'm gonna just show the rest of 169 00:08:58,320 --> 00:09:01,560 Speaker 1: the circuit where they've gone wrong. So you call it 170 00:09:01,800 --> 00:09:06,280 Speaker 1: performance art. In the circuits, house'll explain that they're not 171 00:09:06,440 --> 00:09:10,160 Speaker 1: really in the moment operating as a normal federal judge. 172 00:09:10,320 --> 00:09:13,080 Speaker 1: They're playing to win audience. And by the way, there's 173 00:09:13,080 --> 00:09:15,960 Speaker 1: nothing wrong with that, and people tend to dislike it, 174 00:09:16,040 --> 00:09:18,720 Speaker 1: mainly when it's with the judge they don't agree with ideologically. 175 00:09:18,720 --> 00:09:22,040 Speaker 1: I mean a lot of justices and judges engage in 176 00:09:22,160 --> 00:09:25,160 Speaker 1: you know, rhetoric or they have examples or metaphors or 177 00:09:25,400 --> 00:09:28,360 Speaker 1: terms of races that are clever. Why police they think 178 00:09:28,440 --> 00:09:30,760 Speaker 1: they are. But in this case, it's not like a 179 00:09:30,760 --> 00:09:34,120 Speaker 1: brief moment of performance art. It's like an entire concurrence 180 00:09:34,200 --> 00:09:37,720 Speaker 1: to a concurrence of performance art. So again it's changed. 181 00:09:37,920 --> 00:09:41,240 Speaker 1: They're now thinking about audiences. Maybe it's somebody in the 182 00:09:41,240 --> 00:09:45,120 Speaker 1: White House, maybe it's somebody on Twitter. They're thinking about 183 00:09:45,160 --> 00:09:48,439 Speaker 1: audiences besides the official audience for a federal judge. That's 184 00:09:48,480 --> 00:09:51,960 Speaker 1: supposed to be the party's, the council, the other lawyers 185 00:09:51,960 --> 00:09:55,679 Speaker 1: in the jurisdiction, and perhaps if you're influential enough of 186 00:09:55,720 --> 00:09:58,439 Speaker 1: the judge or on the influential court law students, you're 187 00:09:58,480 --> 00:10:00,920 Speaker 1: supposed to be thinking about those groups. But now they're 188 00:10:00,920 --> 00:10:02,920 Speaker 1: thinking about, Hey, what are they going to say about me? 189 00:10:02,960 --> 00:10:06,800 Speaker 1: On Twitter? Are there judges on Twitter? Well, some judges. 190 00:10:06,920 --> 00:10:10,080 Speaker 1: It's like Judge Dillard from Georgia, he's on Twitter. The 191 00:10:10,160 --> 00:10:13,040 Speaker 1: Chief Justice of the Michigan Court. I know she's on Twitter. 192 00:10:13,320 --> 00:10:15,440 Speaker 1: I think they're quite careful and what they say. They're 193 00:10:15,480 --> 00:10:18,520 Speaker 1: fun to follow, but they're not controversial. There actually are 194 00:10:18,600 --> 00:10:20,760 Speaker 1: quite a few judges and justices I can tell you 195 00:10:20,800 --> 00:10:24,680 Speaker 1: who are on Twitter. Under they absolutely follow. I can 196 00:10:24,760 --> 00:10:28,680 Speaker 1: tell you for sure, they absolutely follow what people say 197 00:10:28,679 --> 00:10:31,840 Speaker 1: about them. And I have to say, these attention getting 198 00:10:31,880 --> 00:10:36,760 Speaker 1: opinions keep things interesting as opposed to those opinions, it's 199 00:10:36,880 --> 00:10:40,040 Speaker 1: just so hard to wade through. We the lawyers of 200 00:10:40,080 --> 00:10:43,920 Speaker 1: America are hypocrites on this because if you ask people, 201 00:10:43,920 --> 00:10:47,400 Speaker 1: they always say like, judges should be somber and serious. 202 00:10:47,520 --> 00:10:49,400 Speaker 1: They have a lot of power. But again, if you 203 00:10:49,440 --> 00:10:51,640 Speaker 1: go back to Justice Scalia and you say, what are 204 00:10:51,679 --> 00:10:54,800 Speaker 1: some quotes you remember from Justice Scalia, everything you will 205 00:10:54,840 --> 00:10:59,319 Speaker 1: hear will be some kind of snark, sarcasm, pop shot criticism. 206 00:10:59,600 --> 00:11:02,760 Speaker 1: People secretly love this stuff. They say they hate it. 207 00:11:02,840 --> 00:11:05,920 Speaker 1: They might intellectually hate it, but I hate to tell 208 00:11:05,960 --> 00:11:08,439 Speaker 1: you it works. And I think Justice Cagan is probably 209 00:11:08,440 --> 00:11:13,079 Speaker 1: the greatest living legal writer, lawyer or judge. But the 210 00:11:13,080 --> 00:11:16,080 Speaker 1: things that people associate with her are actually the very 211 00:11:16,080 --> 00:11:19,040 Speaker 1: few things I don't think are that great. Like exciting, 212 00:11:19,200 --> 00:11:21,440 Speaker 1: you know, making a making a reference to the TV 213 00:11:21,520 --> 00:11:24,360 Speaker 1: show Beef. I know people think that's really clever and 214 00:11:24,400 --> 00:11:28,680 Speaker 1: like populist. I love of every word she's ever written. 215 00:11:28,800 --> 00:11:31,680 Speaker 1: That's the last thing how I would ever put on 216 00:11:31,720 --> 00:11:34,439 Speaker 1: the list. Right, So, if you're a judge and people 217 00:11:34,440 --> 00:11:37,600 Speaker 1: are saying, oh, it's so inappropriate to use this snark, 218 00:11:37,760 --> 00:11:41,359 Speaker 1: but then in real life what people seem to applaud 219 00:11:42,000 --> 00:11:47,120 Speaker 1: of these little barbs or cute pop culture references, You're 220 00:11:47,160 --> 00:11:50,120 Speaker 1: gonna You're gonna see the split and do what people 221 00:11:50,160 --> 00:11:52,760 Speaker 1: actually things are like as opposed to what they say 222 00:11:52,800 --> 00:11:57,880 Speaker 1: they like. Thanks Ross. That's legal writing coach, Ross Cooperman, 223 00:11:58,320 --> 00:12:00,120 Speaker 1: and that's it for this edition of the bloom Our 224 00:12:00,160 --> 00:12:03,160 Speaker 1: Glass Show. Remember you can always get the latest legal 225 00:12:03,160 --> 00:12:06,480 Speaker 1: news by listening to our Bloomberg Law podcast wherever you 226 00:12:06,480 --> 00:12:10,240 Speaker 1: get your favorite podcasts. I'm June Grosso and you're listening 227 00:12:10,320 --> 00:12:14,920 Speaker 1: to Bloomberg Beef News. Laws may not require us to 228 00:12:15,040 --> 00:12:17,440 Speaker 1: count how many jelly beans are in a jar, but 229 00:12:17,559 --> 00:12:22,079 Speaker 1: modern day voter suppression is no less pernicious. Representative Terry 230 00:12:22,120 --> 00:12:26,199 Speaker 1: Sewell is the only black person serving in Congress from Alabama. 231 00:12:26,760 --> 00:12:30,880 Speaker 1: The state is currently represented by one black Democrat, Sewell, 232 00:12:30,920 --> 00:12:34,920 Speaker 1: elected from the state's only majority black district, and six 233 00:12:34,960 --> 00:12:39,480 Speaker 1: white Republicans elected from the state's heavily white districts. That's 234 00:12:39,600 --> 00:12:44,440 Speaker 1: even though about tent of Alabama's population is black. So 235 00:12:44,480 --> 00:12:47,640 Speaker 1: a panel of three federal judges has ordered the state 236 00:12:47,720 --> 00:12:51,719 Speaker 1: to draw new congressional districts including a second district with 237 00:12:51,840 --> 00:12:55,920 Speaker 1: a substantial number of minority voters. Alabama is appealing that 238 00:12:55,960 --> 00:12:59,080 Speaker 1: decision to the Supreme Court. Joining me is Rebecca Green, 239 00:12:59,440 --> 00:13:02,600 Speaker 1: professor and director of the Election Law Program at William 240 00:13:02,600 --> 00:13:05,880 Speaker 1: and Mary Law School. Rebecca explain this decision by the 241 00:13:05,920 --> 00:13:10,160 Speaker 1: panel of judges. The case comes up under the Voting 242 00:13:10,240 --> 00:13:13,400 Speaker 1: Rights Act, something called Section two, which is designed to 243 00:13:13,600 --> 00:13:16,800 Speaker 1: ensure that minorities have the ability to elect their candidates 244 00:13:16,800 --> 00:13:19,920 Speaker 1: of choice, or put a different way, that state rules 245 00:13:20,080 --> 00:13:23,400 Speaker 1: and laws don't styn me the ability of minorities to 246 00:13:23,480 --> 00:13:26,080 Speaker 1: elect their candidate of choice. One way that states have 247 00:13:26,160 --> 00:13:29,040 Speaker 1: done this historically is by the way they draw their 248 00:13:29,080 --> 00:13:32,160 Speaker 1: lines and the resisting process. And so what they can 249 00:13:32,200 --> 00:13:36,600 Speaker 1: do is they can pack minority voters into a single district, 250 00:13:36,760 --> 00:13:40,160 Speaker 1: thereby take their voting power away and in surrounding districts, 251 00:13:40,280 --> 00:13:43,559 Speaker 1: or if there are concentrations of minority voters that would 252 00:13:43,559 --> 00:13:46,480 Speaker 1: be able to elect their candidate choice, the line drawer 253 00:13:46,520 --> 00:13:48,400 Speaker 1: could draw a line like in the middle of that 254 00:13:48,480 --> 00:13:51,840 Speaker 1: concentration of minority voters in order to diffuse or dilute 255 00:13:51,880 --> 00:13:55,400 Speaker 1: their ability to elect their connective choice. So redistricting has 256 00:13:55,440 --> 00:13:58,280 Speaker 1: been a vehicle that states have used in the past 257 00:13:58,480 --> 00:14:02,679 Speaker 1: to harm minority political strength. And if you look at 258 00:14:02,800 --> 00:14:06,160 Speaker 1: the US congressional map in Alabama that plaintiff's challenged under 259 00:14:06,200 --> 00:14:09,720 Speaker 1: section two, they did exactly what I just described. At 260 00:14:09,800 --> 00:14:12,920 Speaker 1: least that's the allegation that they packed minority voters into 261 00:14:12,920 --> 00:14:15,160 Speaker 1: a single district in one part of the state, and 262 00:14:15,480 --> 00:14:17,679 Speaker 1: across the way on the right hand side of the state, 263 00:14:17,760 --> 00:14:21,480 Speaker 1: they cut a line down the concentration of minority voters, 264 00:14:21,520 --> 00:14:24,840 Speaker 1: and the allegation is that violates Voting Rights Act Section too. 265 00:14:25,160 --> 00:14:28,840 Speaker 1: And so this three judge panel of federal judges, which 266 00:14:28,840 --> 00:14:33,760 Speaker 1: included two appointees of former President Trump, said voting in 267 00:14:33,800 --> 00:14:38,280 Speaker 1: the challenge districts is intensely racially polarized. This is not 268 00:14:38,480 --> 00:14:43,080 Speaker 1: genuinely in dispute. Is that correct that it's not in dispute. Yes, 269 00:14:43,200 --> 00:14:46,800 Speaker 1: So what they're referring to is an analysis that is 270 00:14:46,880 --> 00:14:51,760 Speaker 1: required under section to vote dilution litigation. The first part 271 00:14:51,760 --> 00:14:54,680 Speaker 1: of that analysis has to do with whether the minority 272 00:14:54,680 --> 00:14:59,360 Speaker 1: community is sufficiently large and geographically compact to qualify for 273 00:14:59,520 --> 00:15:02,760 Speaker 1: protection under section two. And then the second two prongs 274 00:15:02,800 --> 00:15:07,280 Speaker 1: of analysis require the presence of racially polarized voting, meaning 275 00:15:07,360 --> 00:15:10,520 Speaker 1: that you can look at how minorities vote and you 276 00:15:10,600 --> 00:15:13,480 Speaker 1: can first of all, decide that they're politically cohesive and 277 00:15:13,520 --> 00:15:15,400 Speaker 1: that they would vote for the same candidate if given 278 00:15:15,440 --> 00:15:17,320 Speaker 1: the chance. And the other piece of that is that 279 00:15:17,400 --> 00:15:21,800 Speaker 1: the majority voters consistently vote to defeat the minority candidates 280 00:15:21,800 --> 00:15:25,320 Speaker 1: of choice. And my understanding of the data is that 281 00:15:25,440 --> 00:15:28,600 Speaker 1: it is a racially polarized voting climate. What were the 282 00:15:28,640 --> 00:15:33,040 Speaker 1: court's instructions to Alabama about redrawing the map? Basically, the 283 00:15:33,120 --> 00:15:37,880 Speaker 1: state's map has only one majority minority district out of seven, 284 00:15:38,120 --> 00:15:40,480 Speaker 1: despite the fact that there are almost thirty percent a 285 00:15:40,520 --> 00:15:43,560 Speaker 1: black voting age population in the States. So it's skewed 286 00:15:43,840 --> 00:15:47,080 Speaker 1: against minority voters for that reason, and so the command 287 00:15:47,200 --> 00:15:49,480 Speaker 1: to comply with Section two is to draw a second 288 00:15:49,520 --> 00:15:52,880 Speaker 1: majority minority district. What was interesting to me is that 289 00:15:53,240 --> 00:15:57,560 Speaker 1: the panel refused to put its decision on hold while 290 00:15:58,080 --> 00:16:01,520 Speaker 1: Alabama appeals to the Supreme Court, so that gives the 291 00:16:01,640 --> 00:16:05,720 Speaker 1: legislature until Monday to draw a new map. In the meantime, 292 00:16:06,040 --> 00:16:09,240 Speaker 1: the panel is working on a backup plan. Yeah, so 293 00:16:09,360 --> 00:16:12,800 Speaker 1: I think that the urgency here is that the Panel 294 00:16:12,840 --> 00:16:15,280 Speaker 1: of judges here thinks that the plaintiffs have an incredibly 295 00:16:15,320 --> 00:16:18,280 Speaker 1: strong case and that the arguments the state was making 296 00:16:18,360 --> 00:16:21,560 Speaker 1: two defendants maps were exceptionally weak. And one of the 297 00:16:21,680 --> 00:16:25,120 Speaker 1: arguments that the defendants of the state made here was 298 00:16:25,360 --> 00:16:30,440 Speaker 1: essentially that by prioritizing race for purposes of complying with 299 00:16:30,520 --> 00:16:32,560 Speaker 1: Section two of the Voting Rights Act, that would be 300 00:16:32,600 --> 00:16:35,120 Speaker 1: a racial gerrymanager. In other words, if you create the 301 00:16:35,160 --> 00:16:38,600 Speaker 1: second majority minority district, it would effectively be prioritizing race 302 00:16:38,640 --> 00:16:41,160 Speaker 1: over everything else. And the reason why I think the 303 00:16:41,160 --> 00:16:43,680 Speaker 1: Court found that to be such a weak argument is 304 00:16:43,720 --> 00:16:47,360 Speaker 1: that if you couldn't comply with Section two without violating 305 00:16:47,600 --> 00:16:51,680 Speaker 1: the Constitution, then Section two would be unconstitutional. And you 306 00:16:51,720 --> 00:16:54,680 Speaker 1: know that lainly the lower court judges weren't willing to do. 307 00:16:54,880 --> 00:16:57,440 Speaker 1: In other words, they were taking it on faith that 308 00:16:57,560 --> 00:17:00,800 Speaker 1: Congress has the power to enact that into and that 309 00:17:00,840 --> 00:17:05,000 Speaker 1: plaintiff skins indicate those rights. So Alabama is appealing to 310 00:17:05,000 --> 00:17:08,200 Speaker 1: the Supreme Court, as I said, and it argued that 311 00:17:08,560 --> 00:17:13,760 Speaker 1: the injunction will throw state elections into chaos and require 312 00:17:13,800 --> 00:17:17,960 Speaker 1: the state to draw districts based primarily on race instead 313 00:17:18,000 --> 00:17:20,760 Speaker 1: of other factors. What do you think of that argument? 314 00:17:21,000 --> 00:17:22,560 Speaker 1: So that's sort of what I was just alluding to 315 00:17:22,640 --> 00:17:25,520 Speaker 1: their reacting to this idea that they should be prioritizing 316 00:17:25,600 --> 00:17:28,600 Speaker 1: race in their line drawing, when that's sort of a 317 00:17:28,640 --> 00:17:31,679 Speaker 1: strange argument, given that since the Voting Rights Act was 318 00:17:31,720 --> 00:17:36,360 Speaker 1: passed in and particularly since it was applied to line 319 00:17:36,440 --> 00:17:39,360 Speaker 1: drawing vote allution cases, that's what states have been required 320 00:17:39,400 --> 00:17:42,000 Speaker 1: to do all along, and in fact, you know, obviously 321 00:17:42,200 --> 00:17:46,680 Speaker 1: Alabama has been a losing defendant on many registricting cases 322 00:17:46,720 --> 00:17:49,120 Speaker 1: since the Voting Rights Act was passed. So to complain 323 00:17:49,160 --> 00:17:51,520 Speaker 1: that they are being forced to comply with the Voting 324 00:17:51,600 --> 00:17:54,320 Speaker 1: Rights Act by taking race into account as it requires 325 00:17:54,600 --> 00:17:58,000 Speaker 1: the sort of a strange argument because that's not anything new. 326 00:17:58,600 --> 00:18:01,200 Speaker 1: So will the Supreme Court here that case. Yes, there's 327 00:18:01,200 --> 00:18:05,120 Speaker 1: mandatory jurisdiction for the Supreme Court in statewide registricting cases. 328 00:18:05,560 --> 00:18:08,399 Speaker 1: So unlike other cases where the Court can decide or 329 00:18:08,440 --> 00:18:10,840 Speaker 1: not decide, here the Court will take it for part 330 00:18:10,880 --> 00:18:12,840 Speaker 1: of the reason that you're suggesting, which is that you know, 331 00:18:13,119 --> 00:18:16,680 Speaker 1: redistricting cases are a unique type of case because elections happen, 332 00:18:16,880 --> 00:18:20,200 Speaker 1: and you can't delay decisions because elections have to happen. 333 00:18:20,560 --> 00:18:22,800 Speaker 1: So I think you can expect that the Supreme Court 334 00:18:22,840 --> 00:18:24,760 Speaker 1: will weigh in one way or the other here and 335 00:18:25,240 --> 00:18:29,920 Speaker 1: how much will a decision by the Supreme Court enlighten 336 00:18:30,080 --> 00:18:34,520 Speaker 1: us about how it's going to look at other similar challenges. 337 00:18:35,040 --> 00:18:38,200 Speaker 1: And we're expecting other similar challenges, aren't we in the 338 00:18:38,280 --> 00:18:40,879 Speaker 1: run up to the next election. Yeah, there's been a 339 00:18:40,920 --> 00:18:44,440 Speaker 1: couple of instances where states are kind of being very 340 00:18:44,480 --> 00:18:48,560 Speaker 1: assertive about wanting to draw lines from a color blind perspective. 341 00:18:48,880 --> 00:18:52,960 Speaker 1: And I think what's happening there is they are wondering 342 00:18:53,000 --> 00:18:56,080 Speaker 1: whether there are a majority of defices on the Court 343 00:18:56,080 --> 00:18:58,880 Speaker 1: who would be open to the idea that using race 344 00:18:59,080 --> 00:19:03,000 Speaker 1: in redistricting violates the Constitution, And so I wonder whether 345 00:19:03,119 --> 00:19:05,320 Speaker 1: they're sort of taking this path because they want to 346 00:19:05,359 --> 00:19:07,960 Speaker 1: test that out. Is it correct to say that the 347 00:19:08,080 --> 00:19:12,640 Speaker 1: Roberts Court has been cutting back on voting rights. I 348 00:19:12,640 --> 00:19:15,600 Speaker 1: think it's correct to say that the Roberts Court has 349 00:19:15,640 --> 00:19:17,840 Speaker 1: been putting pressure on Section two of the Voting Rights 350 00:19:17,880 --> 00:19:21,000 Speaker 1: Act for sure. I mean, you can look at redistricting 351 00:19:21,119 --> 00:19:26,879 Speaker 1: cases in the last decade where the Court made clear 352 00:19:27,280 --> 00:19:29,800 Speaker 1: that it would require states to comply with the Voting 353 00:19:29,880 --> 00:19:32,720 Speaker 1: Rights Act. So it's not like they've been inching towards 354 00:19:32,960 --> 00:19:36,000 Speaker 1: repudiating it wholesale In fact, Justice Thomas has been one 355 00:19:36,040 --> 00:19:39,360 Speaker 1: of the only justices who've taken that line very firmly 356 00:19:39,400 --> 00:19:42,560 Speaker 1: and consistently, that is that Section two is unconstitutional. So 357 00:19:42,600 --> 00:19:44,600 Speaker 1: I don't think it's fair to say that there's been, 358 00:19:44,920 --> 00:19:47,119 Speaker 1: you know, a drum beat by majority of justices of 359 00:19:47,160 --> 00:19:48,919 Speaker 1: the Court to do away with it. And if you 360 00:19:48,920 --> 00:19:51,080 Speaker 1: look at the decisions over the last ten years, the 361 00:19:51,119 --> 00:19:54,560 Speaker 1: Court has certainly recognized that plantiffs can vindicate rights under 362 00:19:54,680 --> 00:19:58,640 Speaker 1: Voting Rights Act Section two. Let's turn to to Pennsylvania 363 00:19:59,240 --> 00:20:03,639 Speaker 1: and pans Sylvania Appellate Court struck down a law that 364 00:20:03,720 --> 00:20:09,360 Speaker 1: allows no excuse absentee voting. Explain why it's struck down 365 00:20:09,440 --> 00:20:13,200 Speaker 1: that law, what its reasoning was. Yeah, So this this 366 00:20:13,280 --> 00:20:16,919 Speaker 1: is kind of a interesting set of circumstances. So in 367 00:20:16,960 --> 00:20:24,080 Speaker 1: two thousand nineteen, the Pennsylvania legislature, on a bipartisan vote, 368 00:20:24,520 --> 00:20:29,199 Speaker 1: past legislation to enable no youth absentee voting. And the 369 00:20:29,320 --> 00:20:31,960 Speaker 1: legislation itself, I think it was a hundred and eighty 370 00:20:32,040 --> 00:20:35,800 Speaker 1: days that you were that you could bring a challenge 371 00:20:35,880 --> 00:20:38,560 Speaker 1: to it, and no one brought that challenge. In fact, 372 00:20:38,560 --> 00:20:42,560 Speaker 1: it wasn't until after election when all of a sudden 373 00:20:42,640 --> 00:20:45,600 Speaker 1: you started hearing this argument um that you know that 374 00:20:45,720 --> 00:20:49,520 Speaker 1: law was unconstitutional at least with respect to the state Constitution. 375 00:20:50,440 --> 00:20:55,160 Speaker 1: And basically the argument is that the state constitution requires 376 00:20:55,200 --> 00:20:59,680 Speaker 1: that voters vote in person um and that therefore the 377 00:20:59,720 --> 00:21:05,399 Speaker 1: state legislature lacked the ability to pass it's absentee voting 378 00:21:06,040 --> 00:21:09,520 Speaker 1: um legislation UM, because what it would have had to 379 00:21:09,560 --> 00:21:14,040 Speaker 1: do is essentially first amends the state Constitution. But the 380 00:21:14,040 --> 00:21:17,920 Speaker 1: trick is that the state Constitution doesn't actually anywhere say 381 00:21:18,000 --> 00:21:20,920 Speaker 1: that you have to vote in person. Rather, it says 382 00:21:21,080 --> 00:21:26,800 Speaker 1: that it's the talking about how a qualified elector has 383 00:21:26,840 --> 00:21:29,919 Speaker 1: to establish residencies days before an election, and the and 384 00:21:29,960 --> 00:21:32,040 Speaker 1: the word in the constitution, the wards and the constitution 385 00:21:32,080 --> 00:21:35,800 Speaker 1: are in the election district where he or she shall 386 00:21:35,920 --> 00:21:39,520 Speaker 1: offer to vote. And so the argument that the Republicans 387 00:21:39,520 --> 00:21:42,720 Speaker 1: are making is that the offer to vote language suggests 388 00:21:42,800 --> 00:21:45,399 Speaker 1: that you're offering in person to vote um, which is 389 00:21:45,400 --> 00:21:47,840 Speaker 1: a little bit of a stretch. Doesn't actually say that 390 00:21:48,000 --> 00:21:50,880 Speaker 1: um in the constitution. But the but the argument anyway 391 00:21:51,080 --> 00:21:53,920 Speaker 1: is that the the legislature couldn't pass that law because 392 00:21:53,920 --> 00:21:56,440 Speaker 1: it would first about absentee voting, because it would first 393 00:21:56,480 --> 00:21:59,840 Speaker 1: pass to amend the constitution to make it clear that 394 00:22:00,080 --> 00:22:04,760 Speaker 1: could vote remotely. Judge Hannah Levitt wrote, no excuse. Mail 395 00:22:04,840 --> 00:22:08,400 Speaker 1: in voting makes the exercise of the franchise more convenient 396 00:22:08,720 --> 00:22:11,639 Speaker 1: and has been used four times in the history of Pennsylvania. 397 00:22:12,119 --> 00:22:14,760 Speaker 1: Yet they went on to say you had to amend 398 00:22:14,760 --> 00:22:18,760 Speaker 1: the constitution. Yep, it seems odd to say that. And 399 00:22:18,840 --> 00:22:22,480 Speaker 1: then it is odd I think it is. It is odd, um, 400 00:22:22,520 --> 00:22:24,960 Speaker 1: because they also said they also acknowledged that there was 401 00:22:25,200 --> 00:22:28,200 Speaker 1: a hundred in a period to challenge the law. Um. 402 00:22:28,240 --> 00:22:30,800 Speaker 1: And yet you know, plaintiffs here weighted until after an 403 00:22:30,840 --> 00:22:34,280 Speaker 1: election had passed, when voters relied on that law could challenge. 404 00:22:34,280 --> 00:22:36,480 Speaker 1: And so so it's even odd to me that you 405 00:22:36,480 --> 00:22:40,040 Speaker 1: would even accept this um, this case so so far 406 00:22:40,240 --> 00:22:43,200 Speaker 1: into the future. But in any event, even aside from that, 407 00:22:43,440 --> 00:22:47,200 Speaker 1: it is, you know, pretty incredible that the that the court, um, 408 00:22:47,280 --> 00:22:51,679 Speaker 1: you know, so long after the legislature acted um, is 409 00:22:51,760 --> 00:22:54,520 Speaker 1: kind of using this very vague language in the constitution 410 00:22:55,040 --> 00:22:58,560 Speaker 1: um to to say that the legislature overstepped. Some of 411 00:22:58,560 --> 00:23:01,400 Speaker 1: the Republicans who voted for the law are part of 412 00:23:01,440 --> 00:23:05,680 Speaker 1: the group filing this lawsuit against the law. And so 413 00:23:05,880 --> 00:23:09,720 Speaker 1: the five judge Commonwealth courts split along party lines, with 414 00:23:09,920 --> 00:23:13,680 Speaker 1: three Republican judges agreeing with the Republican petitioners and two 415 00:23:13,720 --> 00:23:16,560 Speaker 1: Democrats dissenting. So the state is going to appeal to 416 00:23:16,600 --> 00:23:20,119 Speaker 1: the state Supreme Court, where Democrats have a majority. Is 417 00:23:20,119 --> 00:23:25,200 Speaker 1: the state Supreme Court likely to reverse the decision of 418 00:23:25,240 --> 00:23:28,720 Speaker 1: the five judge court. I'm not a betting person, but um, 419 00:23:28,800 --> 00:23:31,159 Speaker 1: but if I were, I would probably think that that 420 00:23:31,160 --> 00:23:34,560 Speaker 1: would that would be the outcome. You know, looking at 421 00:23:34,600 --> 00:23:39,600 Speaker 1: all these cases in different states across the country where 422 00:23:39,680 --> 00:23:47,160 Speaker 1: voting rights are being restricted or redistricting is eliminating minority constituencies, 423 00:23:47,520 --> 00:23:51,280 Speaker 1: it seems like it's an assault on democracy. Well, you know, 424 00:23:51,520 --> 00:23:55,159 Speaker 1: I believe very firmly that there's a huge amount of 425 00:23:55,240 --> 00:23:58,919 Speaker 1: agreement in this country that all eligible voters should be 426 00:23:58,960 --> 00:24:01,960 Speaker 1: able to cast a vote. And I also think there's 427 00:24:02,000 --> 00:24:04,600 Speaker 1: a lot of agreement that that vote should be free 428 00:24:04,640 --> 00:24:07,719 Speaker 1: of fraud and should be secure. So I think at 429 00:24:07,760 --> 00:24:10,240 Speaker 1: a very basic level, we all agree what the basic 430 00:24:10,400 --> 00:24:14,200 Speaker 1: ingredients are um for our democracy. I mean, I also 431 00:24:14,240 --> 00:24:17,320 Speaker 1: think that, you know, while it's certainly the case that 432 00:24:17,640 --> 00:24:21,600 Speaker 1: states around the country are constricting access to the ballot 433 00:24:21,680 --> 00:24:23,959 Speaker 1: in ways that make people upset and angry because they 434 00:24:24,000 --> 00:24:27,440 Speaker 1: see it as politically motivated. It's also the case that 435 00:24:28,080 --> 00:24:31,119 Speaker 1: it remains very easy to cast a ballot, you know, 436 00:24:31,200 --> 00:24:35,359 Speaker 1: relatively speaking, um today than ever has in the history 437 00:24:35,400 --> 00:24:37,600 Speaker 1: of this country. For example, many states have lots of 438 00:24:38,320 --> 00:24:41,439 Speaker 1: avenues for early voting, and many states have you know, 439 00:24:41,640 --> 00:24:44,800 Speaker 1: more looser absentee voting policies and so forth. And so 440 00:24:44,840 --> 00:24:47,040 Speaker 1: I think, you know, I think it's easy to sort 441 00:24:47,040 --> 00:24:50,520 Speaker 1: of think that, you know, democracy is in a downward spiral. 442 00:24:50,600 --> 00:24:52,439 Speaker 1: But I think, um, if you if you kind of 443 00:24:52,840 --> 00:24:55,200 Speaker 1: go back to the basics, Um, I think there's a 444 00:24:55,240 --> 00:24:57,280 Speaker 1: lot of reason for people to have faith in the 445 00:24:57,640 --> 00:25:00,920 Speaker 1: confidence in the process. Okay, Rebecca will and this segment 446 00:25:01,040 --> 00:25:04,639 Speaker 1: on a hopeful note. That's Rebecca Green, a professor and 447 00:25:04,680 --> 00:25:07,199 Speaker 1: co director of the Election Law Program at William and 448 00:25:07,200 --> 00:25:13,000 Speaker 1: Mary Law School. The airs of a Holocaust survivor maybe 449 00:25:13,000 --> 00:25:16,000 Speaker 1: on the winning end of a Supreme Court case over 450 00:25:16,119 --> 00:25:21,080 Speaker 1: Nazi looted art. In seven painting Ruce sent on Array 451 00:25:21,400 --> 00:25:26,159 Speaker 1: afternoon rain effect by French impressionist Camille Pizarro is at 452 00:25:26,200 --> 00:25:29,000 Speaker 1: the center of the case. It was stolen by the 453 00:25:29,080 --> 00:25:33,800 Speaker 1: Nazis in nine. The painting is currently on display at 454 00:25:33,800 --> 00:25:37,920 Speaker 1: a Spanish State museum in Madrid. Joining me is mcson Gaila, 455 00:25:38,359 --> 00:25:41,159 Speaker 1: head of the appellate practice at buck Alter. In the 456 00:25:41,240 --> 00:25:44,840 Speaker 1: Supreme cordoral arguments, there really wasn't that much discussion of 457 00:25:44,880 --> 00:25:49,280 Speaker 1: the saga of this painting and what was the argument about, Well, 458 00:25:49,320 --> 00:25:52,600 Speaker 1: there were some observations. I believe it was just discorson 459 00:25:52,680 --> 00:25:55,159 Speaker 1: who observed an argument that it might be time to 460 00:25:55,160 --> 00:25:58,120 Speaker 1: bring this litigation to a close, given how long even 461 00:25:58,160 --> 00:26:02,160 Speaker 1: the litigation has lasted, which has been uh ah, gosh, 462 00:26:02,320 --> 00:26:07,040 Speaker 1: you know, coming on twenty years. I think so um, 463 00:26:07,240 --> 00:26:12,160 Speaker 1: And that's not unusual for Holocaust recovery case which which 464 00:26:12,200 --> 00:26:15,000 Speaker 1: does tend to drag on for a long time with 465 00:26:15,119 --> 00:26:19,240 Speaker 1: a lot of freshold legal questions like the ones here, 466 00:26:19,800 --> 00:26:24,760 Speaker 1: even though this case uniquely actually already went through an 467 00:26:24,760 --> 00:26:28,760 Speaker 1: appeal on summer judgment and went through actually a bench trial. 468 00:26:28,880 --> 00:26:32,320 Speaker 1: On certain points, we're back to threshold questions, which is 469 00:26:33,160 --> 00:26:36,720 Speaker 1: choice of law, Which law do we use to choose 470 00:26:36,800 --> 00:26:41,639 Speaker 1: the law that applies substantively in this case, and whether 471 00:26:41,680 --> 00:26:46,119 Speaker 1: it's federal law, federal rules governing choice of law, or 472 00:26:46,640 --> 00:26:50,280 Speaker 1: state law that is California law that determines which suddenly 473 00:26:50,560 --> 00:26:55,080 Speaker 1: law applies in this case. You could matter very greatly 474 00:26:55,160 --> 00:27:00,520 Speaker 1: because of how those substant of laws view UH adverse possession. 475 00:27:00,800 --> 00:27:04,760 Speaker 1: So in California you can't get good title from a thief. 476 00:27:04,920 --> 00:27:11,679 Speaker 1: So there would be clearly some positive developments in that 477 00:27:11,800 --> 00:27:16,080 Speaker 1: regard for the claimants for the family who is seeking 478 00:27:16,160 --> 00:27:20,200 Speaker 1: the piece of art. In under Spanish law, however, there 479 00:27:20,480 --> 00:27:24,760 Speaker 1: is open and obvious possession for a certain amount of 480 00:27:24,800 --> 00:27:29,399 Speaker 1: time can lead to an adverse possession claim. And so 481 00:27:29,920 --> 00:27:34,359 Speaker 1: that is how the foundation want in the district court 482 00:27:34,520 --> 00:27:44,520 Speaker 1: was Spanish law applies using UH federal laws and the 483 00:27:44,520 --> 00:27:48,040 Speaker 1: the family said, no, we need to use California law 484 00:27:48,119 --> 00:27:51,199 Speaker 1: to assess which choice of law to apply because we 485 00:27:51,240 --> 00:27:55,760 Speaker 1: have California claims there, we have California state claims brought 486 00:27:56,119 --> 00:28:01,159 Speaker 1: in federal courts UH, but still state law claims and 487 00:28:01,440 --> 00:28:05,000 Speaker 1: state choice of law should govern. So those are the 488 00:28:05,160 --> 00:28:10,119 Speaker 1: pretty discrete question that the Supreme Court was considering, and 489 00:28:10,520 --> 00:28:14,280 Speaker 1: based on the questions and the responses and the comments 490 00:28:14,280 --> 00:28:17,679 Speaker 1: and oral argument from the justices, it does appear that 491 00:28:17,760 --> 00:28:22,240 Speaker 1: the Court may be poised to provide, you know, yet 492 00:28:22,280 --> 00:28:26,159 Speaker 1: another victory, a rare victory, two errors in a Holocaust 493 00:28:26,320 --> 00:28:29,840 Speaker 1: art case. Again in a case that's founded on the 494 00:28:29,880 --> 00:28:33,040 Speaker 1: foreign Sovereign Communities Act in terms of being able to 495 00:28:33,119 --> 00:28:37,200 Speaker 1: bring a foreign entity to court in the United States, 496 00:28:38,160 --> 00:28:40,040 Speaker 1: but it's going to be on a very narrow, you know, 497 00:28:40,200 --> 00:28:43,800 Speaker 1: very specific ground. California state law and not Spanish law 498 00:28:43,840 --> 00:28:47,640 Speaker 1: should govern the threshold choice of which law to apply 499 00:28:47,960 --> 00:28:53,600 Speaker 1: to clarify. In California you cannot get good title if 500 00:28:53,600 --> 00:28:56,960 Speaker 1: it's a stolen work of art, but in Spain you can, 501 00:28:57,280 --> 00:29:01,160 Speaker 1: or do any other factors matter and stay well, there 502 00:29:01,160 --> 00:29:04,880 Speaker 1: are other factors in terms of how long you've held it, 503 00:29:05,160 --> 00:29:08,440 Speaker 1: whether it was available to be found out during that 504 00:29:08,520 --> 00:29:13,360 Speaker 1: time frame. But that's definitely um an avenue that's possible 505 00:29:13,440 --> 00:29:16,840 Speaker 1: under Spanish law that just doesn't exists under California law. 506 00:29:17,040 --> 00:29:20,440 Speaker 1: Tell us about some of the issues the justices were 507 00:29:20,520 --> 00:29:23,959 Speaker 1: interested in, but there were a couple of things. First, 508 00:29:24,800 --> 00:29:28,800 Speaker 1: you're really the intersection of the substantive state law and 509 00:29:29,080 --> 00:29:32,520 Speaker 1: federal law in the case. So it's a unique beast 510 00:29:32,720 --> 00:29:37,240 Speaker 1: this particular case. It's a case that's brought in federal 511 00:29:37,400 --> 00:29:42,920 Speaker 1: court because the Foreign Sovereign Immunities Act allows of foreign 512 00:29:43,400 --> 00:29:48,120 Speaker 1: entities and governments to be sued in US courts. That 513 00:29:48,160 --> 00:29:52,560 Speaker 1: would be US federal court. But the claims that are 514 00:29:52,600 --> 00:29:56,520 Speaker 1: an issue are state law plaims basic conversion and trust 515 00:29:56,600 --> 00:30:00,760 Speaker 1: paths under California state law. So it's just state law case, 516 00:30:00,880 --> 00:30:03,800 Speaker 1: but it's brought in federal court because of the Federal 517 00:30:03,840 --> 00:30:08,200 Speaker 1: Fabrin Immunities Act question, and so the court was asking 518 00:30:08,320 --> 00:30:12,600 Speaker 1: questions around, well, Okay, this is really a state law case, 519 00:30:12,640 --> 00:30:17,040 Speaker 1: So shouldn't we have a common approach to cases involving 520 00:30:17,120 --> 00:30:21,080 Speaker 1: state law that applies to everyone, whether or not they're 521 00:30:21,120 --> 00:30:24,360 Speaker 1: specially brought here because of the foreign soming to music 522 00:30:24,680 --> 00:30:27,080 Speaker 1: or some other acts. So there's struggling with that. Then 523 00:30:27,200 --> 00:30:31,760 Speaker 1: we want to have a common ground of decisions under 524 00:30:31,760 --> 00:30:34,000 Speaker 1: the Faven Immunities Act as we would if it were 525 00:30:34,040 --> 00:30:36,800 Speaker 1: any other kind of state law claim that might be 526 00:30:37,120 --> 00:30:41,240 Speaker 1: in federal court, and not treat the threshold questions of 527 00:30:41,360 --> 00:30:44,480 Speaker 1: choice of law difference because of the type of defendant 528 00:30:44,560 --> 00:30:47,400 Speaker 1: we have in the case. On the other hand, the 529 00:30:47,440 --> 00:30:50,040 Speaker 1: Foundation was arguing, well, it is a special kind of 530 00:30:50,080 --> 00:30:53,200 Speaker 1: case because of the forum foing me that, and therefore 531 00:30:53,800 --> 00:30:57,240 Speaker 1: we need to be treated as we would expect to 532 00:30:57,280 --> 00:31:01,160 Speaker 1: be treated in federal court because that's what we expect 533 00:31:01,240 --> 00:31:03,880 Speaker 1: when we're brought into court under the f s i A. 534 00:31:04,240 --> 00:31:07,400 Speaker 1: So there were these two dueling questions. They appeared that 535 00:31:07,560 --> 00:31:10,520 Speaker 1: the California Choice of Law will end up governing in 536 00:31:10,600 --> 00:31:14,120 Speaker 1: part because the court. Members of the court expressed concern 537 00:31:14,640 --> 00:31:20,480 Speaker 1: about applying a different rule to a foreign Sovereign Community 538 00:31:20,520 --> 00:31:23,280 Speaker 1: Act defendant as opposed to other kinds of defendant that 539 00:31:23,560 --> 00:31:26,240 Speaker 1: that might be in federal court. We're going to apply 540 00:31:26,480 --> 00:31:29,080 Speaker 1: state choice of law rules to state law claims that 541 00:31:29,200 --> 00:31:31,560 Speaker 1: happened to be in federal court. That should be the same, 542 00:31:32,560 --> 00:31:35,600 Speaker 1: no matter how they came to this court, whether it 543 00:31:35,640 --> 00:31:38,920 Speaker 1: was diversity or the foreign sovereign New News that because 544 00:31:38,960 --> 00:31:41,280 Speaker 1: that's what the Foundation was arguing for. They needed to 545 00:31:41,280 --> 00:31:45,240 Speaker 1: see some kind of special view of this case because 546 00:31:45,280 --> 00:31:47,560 Speaker 1: of how it came there. But it really seemed to 547 00:31:47,560 --> 00:31:52,400 Speaker 1: be a manageability question and a common thread question that 548 00:31:52,560 --> 00:31:55,719 Speaker 1: the Supreme Court was looking at in terms of we 549 00:31:55,760 --> 00:31:58,800 Speaker 1: want to treat We want to have a clear expectation 550 00:31:58,960 --> 00:32:02,800 Speaker 1: and a clear way in which we treat state law 551 00:32:02,880 --> 00:32:05,760 Speaker 1: claims in federal court, no matter how they got here. 552 00:32:05,920 --> 00:32:08,560 Speaker 1: So that seems to be the to the extent there 553 00:32:08,720 --> 00:32:11,280 Speaker 1: was any tussle about, that was the one that was 554 00:32:11,320 --> 00:32:14,360 Speaker 1: going on within the court. And it seems from the 555 00:32:14,440 --> 00:32:17,760 Speaker 1: questioning at least that they seem to be leaning towards 556 00:32:18,480 --> 00:32:22,200 Speaker 1: having a uniform, workable rule that just doesn't depend on 557 00:32:22,680 --> 00:32:26,840 Speaker 1: the defended status for how they become a rich choice 558 00:32:26,840 --> 00:32:30,440 Speaker 1: of laws applies a lawyer for the foundation. So the 559 00:32:30,480 --> 00:32:33,040 Speaker 1: Supreme Court should set out a fair and balanced way 560 00:32:33,200 --> 00:32:36,480 Speaker 1: for federal courts to approach these kinds of cases because 561 00:32:36,520 --> 00:32:40,360 Speaker 1: different states have different legal tests, and Justice Roberts said, 562 00:32:40,560 --> 00:32:43,520 Speaker 1: welcome to the United States. That's how the courts work. 563 00:32:43,840 --> 00:32:46,160 Speaker 1: And a private citizen of the United States who moves 564 00:32:46,160 --> 00:32:48,720 Speaker 1: from New York to Ohio, the law that applies to 565 00:32:48,840 --> 00:32:51,920 Speaker 1: him is going to change as well. So how would 566 00:32:51,920 --> 00:32:54,360 Speaker 1: it work if you go into a federal court, They're 567 00:32:54,360 --> 00:32:56,920 Speaker 1: going to apply the law of the state that you're 568 00:32:57,000 --> 00:32:59,160 Speaker 1: in according to you know what you think the court's 569 00:32:59,200 --> 00:33:02,760 Speaker 1: going to do? Yes, so I think I'll say, Okay, Yes, 570 00:33:02,840 --> 00:33:07,360 Speaker 1: they're California claims. The plaintiff is the Californians, and so 571 00:33:07,480 --> 00:33:10,360 Speaker 1: it's California state law and California choice of law that 572 00:33:10,400 --> 00:33:13,600 Speaker 1: applies to California state lack claims. I think what Justice 573 00:33:13,680 --> 00:33:18,280 Speaker 1: Roberts was talking about there was this sense that yes, okay, 574 00:33:18,320 --> 00:33:22,760 Speaker 1: whether there's an expectation about whether and where you can 575 00:33:22,800 --> 00:33:25,720 Speaker 1: be hailed into court as it as a foreign empty 576 00:33:26,000 --> 00:33:29,040 Speaker 1: into the United States that may be governed by the 577 00:33:29,400 --> 00:33:31,920 Speaker 1: Foreign Sovereign Communities Act, and it tells you you can 578 00:33:31,960 --> 00:33:35,360 Speaker 1: be hailed into federal court. But then once you are 579 00:33:35,480 --> 00:33:38,760 Speaker 1: in our court system, you are then governed by our 580 00:33:38,840 --> 00:33:42,280 Speaker 1: court system. And how our court system worked for every 581 00:33:42,280 --> 00:33:46,120 Speaker 1: other kind of defendant is that, uh, when there are 582 00:33:46,200 --> 00:33:48,880 Speaker 1: state law claims, when you're going to use the state 583 00:33:49,000 --> 00:33:54,200 Speaker 1: choice of law analysis to assess this. So that's um, 584 00:33:54,360 --> 00:33:57,240 Speaker 1: that's where keeps us as Robert's comments was coming from, Yes, 585 00:33:57,320 --> 00:34:01,600 Speaker 1: welcome to our court. Was there any difference in the 586 00:34:01,600 --> 00:34:04,760 Speaker 1: way the conservatives viewed it from the way the liberals 587 00:34:04,840 --> 00:34:08,480 Speaker 1: viewed it or were they all on the same basic page. Yeah, 588 00:34:08,800 --> 00:34:11,520 Speaker 1: I mean it was a remarkable argument, and that there 589 00:34:11,520 --> 00:34:15,279 Speaker 1: there were some quiet spots and it didn't seem to 590 00:34:15,320 --> 00:34:19,680 Speaker 1: be questions came from too many different directions. There were 591 00:34:19,680 --> 00:34:24,760 Speaker 1: a lot of questions getting getting to the same point 592 00:34:25,000 --> 00:34:29,719 Speaker 1: that that Justice Roberts was making. And also that clearly 593 00:34:29,880 --> 00:34:34,040 Speaker 1: the the members of the court were concerned about making 594 00:34:34,080 --> 00:34:36,520 Speaker 1: some kind of special rule for a certain kind of 595 00:34:36,560 --> 00:34:39,480 Speaker 1: defendant or a special rule in this case, they wanted 596 00:34:39,560 --> 00:34:44,520 Speaker 1: something that was workable and predictable for the courts themselves 597 00:34:44,600 --> 00:34:50,000 Speaker 1: to implement and then not have some special card outs 598 00:34:50,000 --> 00:34:54,759 Speaker 1: for sovereign unity defendants. But since that there were, the 599 00:34:54,880 --> 00:34:58,279 Speaker 1: questions were in alignment. They seemed to be coming from 600 00:34:58,440 --> 00:35:02,560 Speaker 1: the same general perspective in terms of having a workable 601 00:35:02,680 --> 00:35:08,080 Speaker 1: rule and uh maybe leaning in favor of the state's 602 00:35:08,840 --> 00:35:13,600 Speaker 1: choice of law approach instead of federal common law. And 603 00:35:14,160 --> 00:35:17,000 Speaker 1: in that regard, the questions might have come with slightly different, 604 00:35:18,280 --> 00:35:21,640 Speaker 1: a politely different different flavor to them, but it did 605 00:35:21,680 --> 00:35:26,400 Speaker 1: not appear to be a back divide between the different 606 00:35:26,880 --> 00:35:31,560 Speaker 1: justices depending on their, you know, perceived political leanings. Let 607 00:35:31,600 --> 00:35:34,759 Speaker 1: me ask you this, Suppose the Supreme Court says, all right, 608 00:35:35,160 --> 00:35:40,600 Speaker 1: the plaintiffs win here California law applies. Do the plaintiffs 609 00:35:40,640 --> 00:35:42,600 Speaker 1: really win or is it go back to district court 610 00:35:42,600 --> 00:35:45,719 Speaker 1: and there has to be a trial or more motions? Yeah, 611 00:35:45,800 --> 00:35:48,880 Speaker 1: it goes. It goes back to the district court. The 612 00:35:49,280 --> 00:35:51,600 Speaker 1: question I think also that was very interesting was that 613 00:35:51,719 --> 00:35:55,120 Speaker 1: a significant amount of the questioning towards the end was 614 00:35:55,160 --> 00:35:58,600 Speaker 1: focused on figuring out what that would look like and 615 00:35:58,760 --> 00:36:04,879 Speaker 1: what whether closure was possible in the short or longer term. 616 00:36:04,920 --> 00:36:08,680 Speaker 1: I know that there were um and that's unusual. I mean, 617 00:36:08,680 --> 00:36:10,760 Speaker 1: the court usually is saying, I'm just going to decide 618 00:36:10,760 --> 00:36:12,919 Speaker 1: the case that's in front of me. I'm just going 619 00:36:12,960 --> 00:36:15,239 Speaker 1: to decide the issue, and then we'll remand it with 620 00:36:15,760 --> 00:36:18,920 Speaker 1: directions and the case will carry on. But there seems 621 00:36:18,960 --> 00:36:21,799 Speaker 1: to be a fair amount of questioning in addition to 622 00:36:21,880 --> 00:36:25,400 Speaker 1: Justice Coursages saying, you know, can we perhaps from this 623 00:36:25,520 --> 00:36:29,759 Speaker 1: disclosure what that might look like upon Reman, what would 624 00:36:29,800 --> 00:36:33,400 Speaker 1: the scope see, what what more would there be to 625 00:36:33,520 --> 00:36:37,279 Speaker 1: do in this case? Or would it truly be put 626 00:36:37,360 --> 00:36:40,680 Speaker 1: to bed in short order? And it was clear from 627 00:36:40,719 --> 00:36:44,480 Speaker 1: that discussion that, you know, the Foundation is definitely planning 628 00:36:44,520 --> 00:36:47,520 Speaker 1: to live to fite another day and was even arguing 629 00:36:47,560 --> 00:36:51,600 Speaker 1: that under California choice of law that's still standish law 630 00:36:52,760 --> 00:36:57,840 Speaker 1: should potentially apply to which there was you know, a 631 00:36:57,880 --> 00:37:02,240 Speaker 1: fair amount of question thing about that from a couple 632 00:37:02,280 --> 00:37:04,960 Speaker 1: of the justices. You said, well, you're fighting awfully hard 633 00:37:05,000 --> 00:37:07,520 Speaker 1: about this. We can't imagine that if you don't think 634 00:37:07,560 --> 00:37:10,000 Speaker 1: it might make some difference depending on which choice of 635 00:37:10,160 --> 00:37:13,120 Speaker 1: law is applied. Can't see exactly the same results, or 636 00:37:13,520 --> 00:37:15,880 Speaker 1: we wouldn't be spending all this time on this question, 637 00:37:16,520 --> 00:37:19,920 Speaker 1: so certainly you think there might be a difference or 638 00:37:19,920 --> 00:37:23,000 Speaker 1: we wouldn't be here. And then there were also some 639 00:37:23,040 --> 00:37:26,719 Speaker 1: discussions of potential other arguments that the Foundation might raise, 640 00:37:26,800 --> 00:37:29,520 Speaker 1: including due process, and I believe it was just this 641 00:37:29,640 --> 00:37:33,279 Speaker 1: course that you mentioned. Well, at some point after a 642 00:37:33,280 --> 00:37:37,200 Speaker 1: fifteen or twenty years, maybe you've waived any additional um 643 00:37:37,239 --> 00:37:41,000 Speaker 1: procedural arguments that you might have, and perhaps we can 644 00:37:41,560 --> 00:37:44,080 Speaker 1: get to the merits and get the closure on this case. 645 00:37:44,160 --> 00:37:47,880 Speaker 1: So from from that discussion, it's clear the Court is 646 00:37:48,400 --> 00:37:53,799 Speaker 1: curious about that, and also that to the extense there's 647 00:37:53,840 --> 00:37:57,800 Speaker 1: ability to continue to to fight over issues, the Foundation 648 00:37:57,920 --> 00:38:02,319 Speaker 1: certainly will do so. And we've talked before about these 649 00:38:02,440 --> 00:38:05,719 Speaker 1: Nazi looted art cases at the Supreme Court. Would this 650 00:38:05,760 --> 00:38:09,040 Speaker 1: be the first one if things go as you anticipate, 651 00:38:09,200 --> 00:38:12,440 Speaker 1: where the heirs of the first owners who had the 652 00:38:12,640 --> 00:38:16,560 Speaker 1: art looted would actually win. Well, it's a rare it's 653 00:38:16,600 --> 00:38:20,560 Speaker 1: a rare victory for sure. You know, Maria Altman's case 654 00:38:20,760 --> 00:38:23,200 Speaker 1: will be the last one that I know of that 655 00:38:23,360 --> 00:38:28,000 Speaker 1: had a similar win in the Foreign Sovereign Communities contact 656 00:38:28,560 --> 00:38:33,000 Speaker 1: for a Holocaust art air. So it's definitely rare and 657 00:38:33,040 --> 00:38:36,359 Speaker 1: it's following in the Altman case Footsteps, which was now 658 00:38:36,440 --> 00:38:41,320 Speaker 1: several years ago. Thanks EMC. That's mc sanila of Buck Alter. 659 00:38:41,840 --> 00:38:44,120 Speaker 1: And that's it for this edition of The Bloomberg Law Show. 660 00:38:44,480 --> 00:38:46,800 Speaker 1: Remember you can always get the latest legal news on 661 00:38:46,880 --> 00:38:51,160 Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 662 00:38:51,360 --> 00:38:56,399 Speaker 1: and at www dot bloomberg dot com slash podcast, Slash Law, 663 00:38:56,800 --> 00:38:59,400 Speaker 1: and remember to tune into The Bloomberg Law Show every 664 00:38:59,440 --> 00:39:02,560 Speaker 1: week now at ten b m. Wall Street Time. I'm 665 00:39:02,640 --> 00:39:05,080 Speaker 1: June Grossow, and you're listening to Bloomberg