Speaker 1: This is Bloombird Law with June Brusso from Bloomberg Radio.
Speaker 1: Do you know how much that cost tested sponsorship dollars?
Speaker 1: With all due respect, Mr Dawn, I had no idea.
Speaker 1: You've got an experimental surgery to have your removed said,
Speaker 1: with all due respect. That doesn't mean you get to
Speaker 1: say whatever you want to say to me, he does. No, No,
Speaker 1: it doesn't mean convention. That's from the movie Talladega Nights,
Speaker 1: the Ballot of Rickey Bobby, and it's a line. Fifth
Speaker 1: Circuit Judge James Hoe referenced in calling out the claims
Speaker 1: of a dissenting judge who said he was writing with
Speaker 1: all due respect, but then used a quote from Macbeth
Speaker 1: about the sound and fury of idiots. Both pretty mild
Speaker 1: put downs compared to a recent opinion of Ninth Circuit
Speaker 1: Judge Lawrence Van Dyke, who wrote a concurrence to his
Speaker 1: own majority opinion dripping in sarcasm about his liberal colleague.
Speaker 1: These are just the latest examples of the sniping and
Speaker 1: politics spilling into judicial opinions in the circuit courts. Joining
Speaker 1: me as Rosscoperman, a legal writing coach who has taught
Speaker 1: classes for new Federal judges for a decade. So Ross
Speaker 1: Judge Van Dyke wrote a majority opinion which found that
Speaker 1: a closure of gun shops due to COVID was a
Speaker 1: violation of the Second Amendment. Then he wrote a concurrence
Speaker 1: to his own majority opinion in anticipation that the full
Speaker 1: circuit would reverse his decision. How unusual is that? So
Speaker 1: he did something I can't remember seeing before. So this is,
Speaker 1: as he said, a Second Amendment case. So it's a
Speaker 1: high profile case. So he was sort of assuming that
Speaker 1: the case was going to go on bonk, and his
Speaker 1: concurrence to himself basically tried to write what he thinks
Speaker 1: the majority will come up with. So he wrote an opinion,
Speaker 1: you know, going the opposite way from what he wanted.
Speaker 1: But then what he did is he had all these
Speaker 1: footnotes and thought bubbles with a very kind of snarky,
Speaker 1: sarcastic tone, essentially claiming that anybody who supports this particular
Speaker 1: California gun regulation was just completely making things up and
Speaker 1: had ulterior motives, almost like to put them on the
Speaker 1: defensive before they've even had a chance to rehear the case,
Speaker 1: sort of show that you can have a lot of
Speaker 1: what he would probably say, kind of gobbled the standards
Speaker 1: and quotations from case law and then picked a very
Speaker 1: strong suggestion that they were slimy for lack of a
Speaker 1: better word, and we're going to sort of make up
Speaker 1: the law in order to uphold the gun regulation. It
Speaker 1: was dripping in sarcasm. I'd say. In the past, he's
Speaker 1: accused his colleagues of engaging in mischief and jiu Jitsu
Speaker 1: compared them to a sullen kid who spits in the
Speaker 1: cookie jar after being caught red handed. What's the point
Speaker 1: of this, do you think to get attention? One thing
Speaker 1: I'd say is he's absolutely not the only judge alive
Speaker 1: or path who's used any of that rhetoric. I mean,
Speaker 1: it's all a question of degree right and also contacts
Speaker 1: and substantive point in question as far as why he's
Speaker 1: doing it. I mean, obviously I can't speak for somebody else,
Speaker 1: but he's a very new judge on the Ninth Circuit.
Speaker 1: You know, his nomination was controversial. I think he's the
Speaker 1: A B. It's onto not qualified, although many people argued
Speaker 1: with that conclusion. He's certainly very smart. I mean, he's
Speaker 1: got a great academic credentials, but he's a new judge.
Speaker 1: He's in that sort of federalist society group that most
Speaker 1: of the President Trump's judges came from. And he's sort
Speaker 1: of signaling, you know, we are onto what the liberals
Speaker 1: he probably called them are democrats are up to. He's
Speaker 1: signally that. But he's also, you know, here we are
Speaker 1: discussing his concurrence in the case that people probably wouldn't
Speaker 1: be talking about at all. He's certainly wanting attention, maybe
Speaker 1: the attention of people who might one day nominate him
Speaker 1: for the Supreme Court. It might be that he wants
Speaker 1: the attention of other judges who are like minded and
Speaker 1: kind of tell them, you know what, I just didn't this,
Speaker 1: and I was really purposely snyde and sarcastic. Maybe you
Speaker 1: should too. So it's probably some combination all the above.
Speaker 1: I mean, I guess we should also take him literally
Speaker 1: and seriously, and maybe that he's just in his mind
Speaker 1: of Paul, he thinks that judges are in a bad
Speaker 1: faith way upholding gun regulations that he would say violate
Speaker 1: at the Second Amendment. Maybe he is actually just genuinely,
Speaker 1: really really upset or distraught about it. Do you think
Speaker 1: it hurts the judges credibility to have opinions that are sarcastic,
Speaker 1: that perl insults at their colleagues on the bench. It's
Speaker 1: a great question. I don't think it has a really
Speaker 1: really easy, obvious answer. So one thing is there's two
Speaker 1: different ways judges are sarcastic and opinions. The main way
Speaker 1: it tends to be towards the counsel or the argument,
Speaker 1: kind of implying that an argument was preposterous or ridiculous,
Speaker 1: So a shot at the lawyers themselves. It's certainly much rarer,
Speaker 1: although Justice Scalia was known to do this from time
Speaker 1: to time. It's rare to take potshots that your colleagues.
Speaker 1: So I would first say there might be different credibility
Speaker 1: issues depending on which of those universities were in. Is
Speaker 1: it really just about the lawyers are the case or
Speaker 1: is it about judges? So in this case, who was
Speaker 1: certainly about judges, and it was like a preemptive strike.
Speaker 1: So at this point, and I think American legal history,
Speaker 1: a lot of judges are probably just hoping to have
Speaker 1: credibility with the like minded right there, not maybe so
Speaker 1: much as in the past. I'm worried about general credibility.
Speaker 1: I mean, there's a lot of tribalism going on in
Speaker 1: our country, as you know. I don't think they're immune.
Speaker 1: So maybe for his purposes, it makes them more credible
Speaker 1: with people who see the law the way he does.
Speaker 1: And just because I know a lot of judges, I'm
Speaker 1: training them and I'm friendly with them. A lot of
Speaker 1: people loved it. I mean a lot of judges thought
Speaker 1: it was great. Other judges thought it was appalling, And
Speaker 1: they might not be the sarcasm the same way that
Speaker 1: I might. They might see it as warranted and effective.
Speaker 1: Guess if the press who you want credibility with this circuit.
Speaker 1: Judge James Hose opinions have also gotten a lot of attention.
Speaker 1: In one opinion that I spoke about at the beginning
Speaker 1: of the segment, he and Judge Juck Weener were carping
Speaker 1: at each other. Doesn't that affect their relationship on the bench.
Speaker 1: And these judges have to work with each other for years,
Speaker 1: There's no doubt about it. You're absolutely right. I know
Speaker 1: you're right because I hear these things in my work.
Speaker 1: Judge Hoe is on the fifth circuit. That fifth circuit
Speaker 1: is notoriously tense with different factions with judges not being
Speaker 1: overly fond of other factions. You know their stories. So
Speaker 1: I'll keeping the Preme Court justices have intentions. Traditionally there's
Speaker 1: been a line they won't cross, you know. I think
Speaker 1: Justice Scalia kind of famously made a crack about Justice Kennedy.
Speaker 1: Even Burger fell about putting a bag over my head.
Speaker 1: I think since then, not that I'm saying it's Justice
Speaker 1: Lee as fault in any way, shape or form. I mean,
Speaker 1: it's just a lot of people try to copy him.
Speaker 1: Since then, it's been I think Judge has probably a
Speaker 1: good example as any It's been pretty common to have
Speaker 1: kind of name calling and a little bit of playground
Speaker 1: kind of kids fighting on the playground rhetoric one judge
Speaker 1: to the other. I think that what you're describing from
Speaker 1: Judge how I mean, the Fifth Circuits had ale out
Speaker 1: literard of pensions where you have, you know, one of
Speaker 1: these like I'm concurring in part two be uh not
Speaker 1: the seventh word and now three A. So, one thing
Speaker 1: I know from getting to know a lot of judges
Speaker 1: is they really are just like the rest of us.
Speaker 1: You know, they don't like people taking shots at them. Yeah,
Speaker 1: of course it causes pension. I suppose if you asked them,
Speaker 1: they would say, that's not the most important thing to me,
Speaker 1: you know, having like everybody get along for the Christmas party.
Speaker 1: It's not as important to me as you know, whatever
Speaker 1: my vision of the Constitution is. You mentioned Justice Scalia,
Speaker 1: who was known for his brilliant writing style, fiery descents.
Speaker 1: Do you see the kind of flare that Justice Scali ahead?
Speaker 1: But I think people have forgotten is that of what
Speaker 1: Justice Scalia wrote, including in this excent, was not was
Speaker 1: not in the pot shot category, right, It wasn't in
Speaker 1: the snarky, pure apple sauce quote unquote category. So I
Speaker 1: think what some of these newer judges are doing without
Speaker 1: realizing it is they're sort of copying those barbs that
Speaker 1: Justice Lee would use, but they don't really come across
Speaker 1: as well or as effectively because the rest of the
Speaker 1: opinion isn't quite a strong I mean, Justice Leo sounded genuine,
Speaker 1: but do you liked it or not? It was like
Speaker 1: his voice and he seem a little bit more like
Speaker 1: a pastiche or like I want to have everybody talk
Speaker 1: about me the way people talked about Justice s Glea
Speaker 1: saying pure apple sauce. He also, of course had the stature,
Speaker 1: so Justice Slea even among his foes, he was just
Speaker 1: going to get more different when he was a justice
Speaker 1: for what he would do in writing than some of
Speaker 1: these judges who have only been on the bench for
Speaker 1: with years. And sometimes you know, it's like anytime there's
Speaker 1: somebody new, you know, the new kid on the block.
Speaker 1: Sometimes they found I know just from what I hear
Speaker 1: so other judges who have been on the bench for
Speaker 1: a while, they sound a little boiled or cocky, right like, Okay,
Speaker 1: I've been doing this for two years and I now
Speaker 1: know everything, and I'm gonna just show the rest of
Speaker 1: the circuit where they've gone wrong. So you call it
Speaker 1: performance art. In the circuits, house'll explain that they're not
Speaker 1: really in the moment operating as a normal federal judge.
Speaker 1: They're playing to win audience. And by the way, there's
Speaker 1: nothing wrong with that, and people tend to dislike it,
Speaker 1: mainly when it's with the judge they don't agree with ideologically.
Speaker 1: I mean a lot of justices and judges engage in
Speaker 1: you know, rhetoric or they have examples or metaphors or
Speaker 1: terms of races that are clever. Why police they think
Speaker 1: they are. But in this case, it's not like a
Speaker 1: brief moment of performance art. It's like an entire concurrence
Speaker 1: to a concurrence of performance art. So again it's changed.
Speaker 1: They're now thinking about audiences. Maybe it's somebody in the
Speaker 1: White House, maybe it's somebody on Twitter. They're thinking about
Speaker 1: audiences besides the official audience for a federal judge. That's
Speaker 1: supposed to be the party's, the council, the other lawyers
Speaker 1: in the jurisdiction, and perhaps if you're influential enough of
Speaker 1: the judge or on the influential court law students, you're
Speaker 1: supposed to be thinking about those groups. But now they're
Speaker 1: thinking about, Hey, what are they going to say about me?
Speaker 1: On Twitter? Are there judges on Twitter? Well, some judges.
Speaker 1: It's like Judge Dillard from Georgia, he's on Twitter. The
Speaker 1: Chief Justice of the Michigan Court. I know she's on Twitter.
Speaker 1: I think they're quite careful and what they say. They're
Speaker 1: fun to follow, but they're not controversial. There actually are
Speaker 1: quite a few judges and justices I can tell you
Speaker 1: who are on Twitter. Under they absolutely follow. I can
Speaker 1: tell you for sure, they absolutely follow what people say
Speaker 1: about them. And I have to say, these attention getting
Speaker 1: opinions keep things interesting as opposed to those opinions, it's
Speaker 1: just so hard to wade through. We the lawyers of
Speaker 1: America are hypocrites on this because if you ask people,
Speaker 1: they always say like, judges should be somber and serious.
Speaker 1: They have a lot of power. But again, if you
Speaker 1: go back to Justice Scalia and you say, what are
Speaker 1: some quotes you remember from Justice Scalia, everything you will
Speaker 1: hear will be some kind of snark, sarcasm, pop shot criticism.
Speaker 1: People secretly love this stuff. They say they hate it.
Speaker 1: They might intellectually hate it, but I hate to tell
Speaker 1: you it works. And I think Justice Cagan is probably
Speaker 1: the greatest living legal writer, lawyer or judge. But the
Speaker 1: things that people associate with her are actually the very
Speaker 1: few things I don't think are that great. Like exciting,
Speaker 1: you know, making a making a reference to the TV
Speaker 1: show Beef. I know people think that's really clever and
Speaker 1: like populist. I love of every word she's ever written.
Speaker 1: That's the last thing how I would ever put on
Speaker 1: the list. Right, So, if you're a judge and people
Speaker 1: are saying, oh, it's so inappropriate to use this snark,
Speaker 1: but then in real life what people seem to applaud
Speaker 1: of these little barbs or cute pop culture references, You're
Speaker 1: gonna You're gonna see the split and do what people
Speaker 1: actually things are like as opposed to what they say
Speaker 1: they like. Thanks Ross. That's legal writing coach, Ross Cooperman,
Speaker 1: and that's it for this edition of the bloom Our
Speaker 1: Glass Show. Remember you can always get the latest legal
Speaker 1: news by listening to our Bloomberg Law podcast wherever you
Speaker 1: get your favorite podcasts. I'm June Grosso and you're listening
Speaker 1: to Bloomberg Beef News. Laws may not require us to
Speaker 1: count how many jelly beans are in a jar, but
Speaker 1: modern day voter suppression is no less pernicious. Representative Terry
Speaker 1: Sewell is the only black person serving in Congress from Alabama.
Speaker 1: The state is currently represented by one black Democrat, Sewell,
Speaker 1: elected from the state's only majority black district, and six
Speaker 1: white Republicans elected from the state's heavily white districts. That's
Speaker 1: even though about tent of Alabama's population is black. So
Speaker 1: a panel of three federal judges has ordered the state
Speaker 1: to draw new congressional districts including a second district with
Speaker 1: a substantial number of minority voters. Alabama is appealing that
Speaker 1: decision to the Supreme Court. Joining me is Rebecca Green,
Speaker 1: professor and director of the Election Law Program at William
Speaker 1: and Mary Law School. Rebecca explain this decision by the
Speaker 1: panel of judges. The case comes up under the Voting
Speaker 1: Rights Act, something called Section two, which is designed to
Speaker 1: ensure that minorities have the ability to elect their candidates
Speaker 1: of choice, or put a different way, that state rules
Speaker 1: and laws don't styn me the ability of minorities to
Speaker 1: elect their candidate of choice. One way that states have
Speaker 1: done this historically is by the way they draw their
Speaker 1: lines and the resisting process. And so what they can
Speaker 1: do is they can pack minority voters into a single district,
Speaker 1: thereby take their voting power away and in surrounding districts,
Speaker 1: or if there are concentrations of minority voters that would
Speaker 1: be able to elect their candidate choice, the line drawer
Speaker 1: could draw a line like in the middle of that
Speaker 1: concentration of minority voters in order to diffuse or dilute
Speaker 1: their ability to elect their connective choice. So redistricting has
Speaker 1: been a vehicle that states have used in the past
Speaker 1: to harm minority political strength. And if you look at
Speaker 1: the US congressional map in Alabama that plaintiff's challenged under
Speaker 1: section two, they did exactly what I just described. At
Speaker 1: least that's the allegation that they packed minority voters into
Speaker 1: a single district in one part of the state, and
Speaker 1: across the way on the right hand side of the state,
Speaker 1: they cut a line down the concentration of minority voters,
Speaker 1: and the allegation is that violates Voting Rights Act Section too.
Speaker 1: And so this three judge panel of federal judges, which
Speaker 1: included two appointees of former President Trump, said voting in
Speaker 1: the challenge districts is intensely racially polarized. This is not
Speaker 1: genuinely in dispute. Is that correct that it's not in dispute. Yes,
Speaker 1: So what they're referring to is an analysis that is
Speaker 1: required under section to vote dilution litigation. The first part
Speaker 1: of that analysis has to do with whether the minority
Speaker 1: community is sufficiently large and geographically compact to qualify for
Speaker 1: protection under section two. And then the second two prongs
Speaker 1: of analysis require the presence of racially polarized voting, meaning
Speaker 1: that you can look at how minorities vote and you
Speaker 1: can first of all, decide that they're politically cohesive and
Speaker 1: that they would vote for the same candidate if given
Speaker 1: the chance. And the other piece of that is that
Speaker 1: the majority voters consistently vote to defeat the minority candidates
Speaker 1: of choice. And my understanding of the data is that
Speaker 1: it is a racially polarized voting climate. What were the
Speaker 1: court's instructions to Alabama about redrawing the map? Basically, the
Speaker 1: state's map has only one majority minority district out of seven,
Speaker 1: despite the fact that there are almost thirty percent a
Speaker 1: black voting age population in the States. So it's skewed
Speaker 1: against minority voters for that reason, and so the command
Speaker 1: to comply with Section two is to draw a second
Speaker 1: majority minority district. What was interesting to me is that
Speaker 1: the panel refused to put its decision on hold while
Speaker 1: Alabama appeals to the Supreme Court, so that gives the
Speaker 1: legislature until Monday to draw a new map. In the meantime,
Speaker 1: the panel is working on a backup plan. Yeah, so
Speaker 1: I think that the urgency here is that the Panel
Speaker 1: of judges here thinks that the plaintiffs have an incredibly
Speaker 1: strong case and that the arguments the state was making
Speaker 1: two defendants maps were exceptionally weak. And one of the
Speaker 1: arguments that the defendants of the state made here was
Speaker 1: essentially that by prioritizing race for purposes of complying with
Speaker 1: Section two of the Voting Rights Act, that would be
Speaker 1: a racial gerrymanager. In other words, if you create the
Speaker 1: second majority minority district, it would effectively be prioritizing race
Speaker 1: over everything else. And the reason why I think the
Speaker 1: Court found that to be such a weak argument is
Speaker 1: that if you couldn't comply with Section two without violating
Speaker 1: the Constitution, then Section two would be unconstitutional. And you
Speaker 1: know that lainly the lower court judges weren't willing to do.
Speaker 1: In other words, they were taking it on faith that
Speaker 1: Congress has the power to enact that into and that
Speaker 1: plaintiff skins indicate those rights. So Alabama is appealing to
Speaker 1: the Supreme Court, as I said, and it argued that
Speaker 1: the injunction will throw state elections into chaos and require
Speaker 1: the state to draw districts based primarily on race instead
Speaker 1: of other factors. What do you think of that argument?
Speaker 1: So that's sort of what I was just alluding to
Speaker 1: their reacting to this idea that they should be prioritizing
Speaker 1: race in their line drawing, when that's sort of a
Speaker 1: strange argument, given that since the Voting Rights Act was
Speaker 1: passed in and particularly since it was applied to line
Speaker 1: drawing vote allution cases, that's what states have been required
Speaker 1: to do all along, and in fact, you know, obviously
Speaker 1: Alabama has been a losing defendant on many registricting cases
Speaker 1: since the Voting Rights Act was passed. So to complain
Speaker 1: that they are being forced to comply with the Voting
Speaker 1: Rights Act by taking race into account as it requires
Speaker 1: the sort of a strange argument because that's not anything new.
Speaker 1: So will the Supreme Court here that case. Yes, there's
Speaker 1: mandatory jurisdiction for the Supreme Court in statewide registricting cases.
Speaker 1: So unlike other cases where the Court can decide or
Speaker 1: not decide, here the Court will take it for part
Speaker 1: of the reason that you're suggesting, which is that you know,
Speaker 1: redistricting cases are a unique type of case because elections happen,
Speaker 1: and you can't delay decisions because elections have to happen.
Speaker 1: So I think you can expect that the Supreme Court
Speaker 1: will weigh in one way or the other here and
Speaker 1: how much will a decision by the Supreme Court enlighten
Speaker 1: us about how it's going to look at other similar challenges.
Speaker 1: And we're expecting other similar challenges, aren't we in the
Speaker 1: run up to the next election. Yeah, there's been a
Speaker 1: couple of instances where states are kind of being very
Speaker 1: assertive about wanting to draw lines from a color blind perspective.
Speaker 1: And I think what's happening there is they are wondering
Speaker 1: whether there are a majority of defices on the Court
Speaker 1: who would be open to the idea that using race
Speaker 1: in redistricting violates the Constitution, And so I wonder whether
Speaker 1: they're sort of taking this path because they want to
Speaker 1: test that out. Is it correct to say that the
Speaker 1: Roberts Court has been cutting back on voting rights. I
Speaker 1: think it's correct to say that the Roberts Court has
Speaker 1: been putting pressure on Section two of the Voting Rights
Speaker 1: Act for sure. I mean, you can look at redistricting
Speaker 1: cases in the last decade where the Court made clear
Speaker 1: that it would require states to comply with the Voting
Speaker 1: Rights Act. So it's not like they've been inching towards
Speaker 1: repudiating it wholesale In fact, Justice Thomas has been one
Speaker 1: of the only justices who've taken that line very firmly
Speaker 1: and consistently, that is that Section two is unconstitutional. So
Speaker 1: I don't think it's fair to say that there's been,
Speaker 1: you know, a drum beat by majority of justices of
Speaker 1: the Court to do away with it. And if you
Speaker 1: look at the decisions over the last ten years, the
Speaker 1: Court has certainly recognized that plantiffs can vindicate rights under
Speaker 1: Voting Rights Act Section two. Let's turn to to Pennsylvania
Speaker 1: and pans Sylvania Appellate Court struck down a law that
Speaker 1: allows no excuse absentee voting. Explain why it's struck down
Speaker 1: that law, what its reasoning was. Yeah, So this this
Speaker 1: is kind of a interesting set of circumstances. So in
Speaker 1: two thousand nineteen, the Pennsylvania legislature, on a bipartisan vote,
Speaker 1: past legislation to enable no youth absentee voting. And the
Speaker 1: legislation itself, I think it was a hundred and eighty
Speaker 1: days that you were that you could bring a challenge
Speaker 1: to it, and no one brought that challenge. In fact,
Speaker 1: it wasn't until after election when all of a sudden
Speaker 1: you started hearing this argument um that you know that
Speaker 1: law was unconstitutional at least with respect to the state Constitution.
Speaker 1: And basically the argument is that the state constitution requires
Speaker 1: that voters vote in person um and that therefore the
Speaker 1: state legislature lacked the ability to pass it's absentee voting
Speaker 1: um legislation UM, because what it would have had to
Speaker 1: do is essentially first amends the state Constitution. But the
Speaker 1: trick is that the state Constitution doesn't actually anywhere say
Speaker 1: that you have to vote in person. Rather, it says
Speaker 1: that it's the talking about how a qualified elector has
Speaker 1: to establish residencies days before an election, and the and
Speaker 1: the word in the constitution, the wards and the constitution
Speaker 1: are in the election district where he or she shall
Speaker 1: offer to vote. And so the argument that the Republicans
Speaker 1: are making is that the offer to vote language suggests
Speaker 1: that you're offering in person to vote um, which is
Speaker 1: a little bit of a stretch. Doesn't actually say that
Speaker 1: um in the constitution. But the but the argument anyway
Speaker 1: is that the the legislature couldn't pass that law because
Speaker 1: it would first about absentee voting, because it would first
Speaker 1: pass to amend the constitution to make it clear that
Speaker 1: could vote remotely. Judge Hannah Levitt wrote, no excuse. Mail
Speaker 1: in voting makes the exercise of the franchise more convenient
Speaker 1: and has been used four times in the history of Pennsylvania.
Speaker 1: Yet they went on to say you had to amend
Speaker 1: the constitution. Yep, it seems odd to say that. And
Speaker 1: then it is odd I think it is. It is odd, um,
Speaker 1: because they also said they also acknowledged that there was
Speaker 1: a hundred in a period to challenge the law. Um.
Speaker 1: And yet you know, plaintiffs here weighted until after an
Speaker 1: election had passed, when voters relied on that law could challenge.
Speaker 1: And so so it's even odd to me that you
Speaker 1: would even accept this um, this case so so far
Speaker 1: into the future. But in any event, even aside from that,
Speaker 1: it is, you know, pretty incredible that the that the court, um,
Speaker 1: you know, so long after the legislature acted um, is
Speaker 1: kind of using this very vague language in the constitution
Speaker 1: um to to say that the legislature overstepped. Some of
Speaker 1: the Republicans who voted for the law are part of
Speaker 1: the group filing this lawsuit against the law. And so
Speaker 1: the five judge Commonwealth courts split along party lines, with
Speaker 1: three Republican judges agreeing with the Republican petitioners and two
Speaker 1: Democrats dissenting. So the state is going to appeal to
Speaker 1: the state Supreme Court, where Democrats have a majority. Is
Speaker 1: the state Supreme Court likely to reverse the decision of
Speaker 1: the five judge court. I'm not a betting person, but um,
Speaker 1: but if I were, I would probably think that that
Speaker 1: would that would be the outcome. You know, looking at
Speaker 1: all these cases in different states across the country where
Speaker 1: voting rights are being restricted or redistricting is eliminating minority constituencies,
Speaker 1: it seems like it's an assault on democracy. Well, you know,
Speaker 1: I believe very firmly that there's a huge amount of
Speaker 1: agreement in this country that all eligible voters should be
Speaker 1: able to cast a vote. And I also think there's
Speaker 1: a lot of agreement that that vote should be free
Speaker 1: of fraud and should be secure. So I think at
Speaker 1: a very basic level, we all agree what the basic
Speaker 1: ingredients are um for our democracy. I mean, I also
Speaker 1: think that, you know, while it's certainly the case that
Speaker 1: states around the country are constricting access to the ballot
Speaker 1: in ways that make people upset and angry because they
Speaker 1: see it as politically motivated. It's also the case that
Speaker 1: it remains very easy to cast a ballot, you know,
Speaker 1: relatively speaking, um today than ever has in the history
Speaker 1: of this country. For example, many states have lots of
Speaker 1: avenues for early voting, and many states have you know,
Speaker 1: more looser absentee voting policies and so forth. And so
Speaker 1: I think, you know, I think it's easy to sort
Speaker 1: of think that, you know, democracy is in a downward spiral.
Speaker 1: But I think, um, if you if you kind of
Speaker 1: go back to the basics, Um, I think there's a
Speaker 1: lot of reason for people to have faith in the
Speaker 1: confidence in the process. Okay, Rebecca will and this segment
Speaker 1: on a hopeful note. That's Rebecca Green, a professor and
Speaker 1: co director of the Election Law Program at William and
Speaker 1: Mary Law School. The airs of a Holocaust survivor maybe
Speaker 1: on the winning end of a Supreme Court case over
Speaker 1: Nazi looted art. In seven painting Ruce sent on Array
Speaker 1: afternoon rain effect by French impressionist Camille Pizarro is at
Speaker 1: the center of the case. It was stolen by the
Speaker 1: Nazis in nine. The painting is currently on display at
Speaker 1: a Spanish State museum in Madrid. Joining me is mcson Gaila,
Speaker 1: head of the appellate practice at buck Alter. In the
Speaker 1: Supreme cordoral arguments, there really wasn't that much discussion of
Speaker 1: the saga of this painting and what was the argument about, Well,
Speaker 1: there were some observations. I believe it was just discorson
Speaker 1: who observed an argument that it might be time to
Speaker 1: bring this litigation to a close, given how long even
Speaker 1: the litigation has lasted, which has been uh ah, gosh,
Speaker 1: you know, coming on twenty years. I think so um,
Speaker 1: And that's not unusual for Holocaust recovery case which which
Speaker 1: does tend to drag on for a long time with
Speaker 1: a lot of freshold legal questions like the ones here,
Speaker 1: even though this case uniquely actually already went through an
Speaker 1: appeal on summer judgment and went through actually a bench trial.
Speaker 1: On certain points, we're back to threshold questions, which is
Speaker 1: choice of law, Which law do we use to choose
Speaker 1: the law that applies substantively in this case, and whether
Speaker 1: it's federal law, federal rules governing choice of law, or
Speaker 1: state law that is California law that determines which suddenly
Speaker 1: law applies in this case. You could matter very greatly
Speaker 1: because of how those substant of laws view UH adverse possession.
Speaker 1: So in California you can't get good title from a thief.
Speaker 1: So there would be clearly some positive developments in that
Speaker 1: regard for the claimants for the family who is seeking
Speaker 1: the piece of art. In under Spanish law, however, there
Speaker 1: is open and obvious possession for a certain amount of
Speaker 1: time can lead to an adverse possession claim. And so
Speaker 1: that is how the foundation want in the district court
Speaker 1: was Spanish law applies using UH federal laws and the
Speaker 1: the family said, no, we need to use California law
Speaker 1: to assess which choice of law to apply because we
Speaker 1: have California claims there, we have California state claims brought
Speaker 1: in federal courts UH, but still state law claims and
Speaker 1: state choice of law should govern. So those are the
Speaker 1: pretty discrete question that the Supreme Court was considering, and
Speaker 1: based on the questions and the responses and the comments
Speaker 1: and oral argument from the justices, it does appear that
Speaker 1: the Court may be poised to provide, you know, yet
Speaker 1: another victory, a rare victory, two errors in a Holocaust
Speaker 1: art case. Again in a case that's founded on the
Speaker 1: foreign Sovereign Communities Act in terms of being able to
Speaker 1: bring a foreign entity to court in the United States,
Speaker 1: but it's going to be on a very narrow, you know,
Speaker 1: very specific ground. California state law and not Spanish law
Speaker 1: should govern the threshold choice of which law to apply
Speaker 1: to clarify. In California you cannot get good title if
Speaker 1: it's a stolen work of art, but in Spain you can,
Speaker 1: or do any other factors matter and stay well, there
Speaker 1: are other factors in terms of how long you've held it,
Speaker 1: whether it was available to be found out during that
Speaker 1: time frame. But that's definitely um an avenue that's possible
Speaker 1: under Spanish law that just doesn't exists under California law.
Speaker 1: Tell us about some of the issues the justices were
Speaker 1: interested in, but there were a couple of things. First,
Speaker 1: you're really the intersection of the substantive state law and
Speaker 1: federal law in the case. So it's a unique beast
Speaker 1: this particular case. It's a case that's brought in federal
Speaker 1: court because the Foreign Sovereign Immunities Act allows of foreign
Speaker 1: entities and governments to be sued in US courts. That
Speaker 1: would be US federal court. But the claims that are
Speaker 1: an issue are state law plaims basic conversion and trust
Speaker 1: paths under California state law. So it's just state law case,
Speaker 1: but it's brought in federal court because of the Federal
Speaker 1: Fabrin Immunities Act question, and so the court was asking
Speaker 1: questions around, well, Okay, this is really a state law case,
Speaker 1: So shouldn't we have a common approach to cases involving
Speaker 1: state law that applies to everyone, whether or not they're
Speaker 1: specially brought here because of the foreign soming to music
Speaker 1: or some other acts. So there's struggling with that. Then
Speaker 1: we want to have a common ground of decisions under
Speaker 1: the Faven Immunities Act as we would if it were
Speaker 1: any other kind of state law claim that might be
Speaker 1: in federal court, and not treat the threshold questions of
Speaker 1: choice of law difference because of the type of defendant
Speaker 1: we have in the case. On the other hand, the
Speaker 1: Foundation was arguing, well, it is a special kind of
Speaker 1: case because of the forum foing me that, and therefore
Speaker 1: we need to be treated as we would expect to
Speaker 1: be treated in federal court because that's what we expect
Speaker 1: when we're brought into court under the f s i A.
Speaker 1: So there were these two dueling questions. They appeared that
Speaker 1: the California Choice of Law will end up governing in
Speaker 1: part because the court. Members of the court expressed concern
Speaker 1: about applying a different rule to a foreign Sovereign Community
Speaker 1: Act defendant as opposed to other kinds of defendant that
Speaker 1: that might be in federal court. We're going to apply
Speaker 1: state choice of law rules to state law claims that
Speaker 1: happened to be in federal court. That should be the same,
Speaker 1: no matter how they came to this court, whether it
Speaker 1: was diversity or the foreign sovereign New News that because
Speaker 1: that's what the Foundation was arguing for. They needed to
Speaker 1: see some kind of special view of this case because
Speaker 1: of how it came there. But it really seemed to
Speaker 1: be a manageability question and a common thread question that
Speaker 1: the Supreme Court was looking at in terms of we
Speaker 1: want to treat We want to have a clear expectation
Speaker 1: and a clear way in which we treat state law
Speaker 1: claims in federal court, no matter how they got here.
Speaker 1: So that seems to be the to the extent there
Speaker 1: was any tussle about, that was the one that was
Speaker 1: going on within the court. And it seems from the
Speaker 1: questioning at least that they seem to be leaning towards
Speaker 1: having a uniform, workable rule that just doesn't depend on
Speaker 1: the defended status for how they become a rich choice
Speaker 1: of laws applies a lawyer for the foundation. So the
Speaker 1: Supreme Court should set out a fair and balanced way
Speaker 1: for federal courts to approach these kinds of cases because
Speaker 1: different states have different legal tests, and Justice Roberts said,
Speaker 1: welcome to the United States. That's how the courts work.
Speaker 1: And a private citizen of the United States who moves
Speaker 1: from New York to Ohio, the law that applies to
Speaker 1: him is going to change as well. So how would
Speaker 1: it work if you go into a federal court, They're
Speaker 1: going to apply the law of the state that you're
Speaker 1: in according to you know what you think the court's
Speaker 1: going to do? Yes, so I think I'll say, Okay, Yes,
Speaker 1: they're California claims. The plaintiff is the Californians, and so
Speaker 1: it's California state law and California choice of law that
Speaker 1: applies to California state lack claims. I think what Justice
Speaker 1: Roberts was talking about there was this sense that yes, okay,
Speaker 1: whether there's an expectation about whether and where you can
Speaker 1: be hailed into court as it as a foreign empty
Speaker 1: into the United States that may be governed by the
Speaker 1: Foreign Sovereign Communities Act, and it tells you you can
Speaker 1: be hailed into federal court. But then once you are
Speaker 1: in our court system, you are then governed by our
Speaker 1: court system. And how our court system worked for every
Speaker 1: other kind of defendant is that, uh, when there are
Speaker 1: state law claims, when you're going to use the state
Speaker 1: choice of law analysis to assess this. So that's um,
Speaker 1: that's where keeps us as Robert's comments was coming from, Yes,
Speaker 1: welcome to our court. Was there any difference in the
Speaker 1: way the conservatives viewed it from the way the liberals
Speaker 1: viewed it or were they all on the same basic page. Yeah,
Speaker 1: I mean it was a remarkable argument, and that there
Speaker 1: there were some quiet spots and it didn't seem to
Speaker 1: be questions came from too many different directions. There were
Speaker 1: a lot of questions getting getting to the same point
Speaker 1: that that Justice Roberts was making. And also that clearly
Speaker 1: the the members of the court were concerned about making
Speaker 1: some kind of special rule for a certain kind of
Speaker 1: defendant or a special rule in this case, they wanted
Speaker 1: something that was workable and predictable for the courts themselves
Speaker 1: to implement and then not have some special card outs
Speaker 1: for sovereign unity defendants. But since that there were, the
Speaker 1: questions were in alignment. They seemed to be coming from
Speaker 1: the same general perspective in terms of having a workable
Speaker 1: rule and uh maybe leaning in favor of the state's
Speaker 1: choice of law approach instead of federal common law. And
Speaker 1: in that regard, the questions might have come with slightly different,
Speaker 1: a politely different different flavor to them, but it did
Speaker 1: not appear to be a back divide between the different
Speaker 1: justices depending on their, you know, perceived political leanings. Let
Speaker 1: me ask you this, Suppose the Supreme Court says, all right,
Speaker 1: the plaintiffs win here California law applies. Do the plaintiffs
Speaker 1: really win or is it go back to district court
Speaker 1: and there has to be a trial or more motions? Yeah,
Speaker 1: it goes. It goes back to the district court. The
Speaker 1: question I think also that was very interesting was that
Speaker 1: a significant amount of the questioning towards the end was
Speaker 1: focused on figuring out what that would look like and
Speaker 1: what whether closure was possible in the short or longer term.
Speaker 1: I know that there were um and that's unusual. I mean,
Speaker 1: the court usually is saying, I'm just going to decide
Speaker 1: the case that's in front of me. I'm just going
Speaker 1: to decide the issue, and then we'll remand it with
Speaker 1: directions and the case will carry on. But there seems
Speaker 1: to be a fair amount of questioning in addition to
Speaker 1: Justice Coursages saying, you know, can we perhaps from this
Speaker 1: disclosure what that might look like upon Reman, what would
Speaker 1: the scope see, what what more would there be to
Speaker 1: do in this case? Or would it truly be put
Speaker 1: to bed in short order? And it was clear from
Speaker 1: that discussion that, you know, the Foundation is definitely planning
Speaker 1: to live to fite another day and was even arguing
Speaker 1: that under California choice of law that's still standish law
Speaker 1: should potentially apply to which there was you know, a
Speaker 1: fair amount of question thing about that from a couple
Speaker 1: of the justices. You said, well, you're fighting awfully hard
Speaker 1: about this. We can't imagine that if you don't think
Speaker 1: it might make some difference depending on which choice of
Speaker 1: law is applied. Can't see exactly the same results, or
Speaker 1: we wouldn't be spending all this time on this question,
Speaker 1: so certainly you think there might be a difference or
Speaker 1: we wouldn't be here. And then there were also some
Speaker 1: discussions of potential other arguments that the Foundation might raise,
Speaker 1: including due process, and I believe it was just this
Speaker 1: course that you mentioned. Well, at some point after a
Speaker 1: fifteen or twenty years, maybe you've waived any additional um
Speaker 1: procedural arguments that you might have, and perhaps we can
Speaker 1: get to the merits and get the closure on this case.
Speaker 1: So from from that discussion, it's clear the Court is
Speaker 1: curious about that, and also that to the extense there's
Speaker 1: ability to continue to to fight over issues, the Foundation
Speaker 1: certainly will do so. And we've talked before about these
Speaker 1: Nazi looted art cases at the Supreme Court. Would this
Speaker 1: be the first one if things go as you anticipate,
Speaker 1: where the heirs of the first owners who had the
Speaker 1: art looted would actually win. Well, it's a rare it's
Speaker 1: a rare victory for sure. You know, Maria Altman's case
Speaker 1: will be the last one that I know of that
Speaker 1: had a similar win in the Foreign Sovereign Communities contact
Speaker 1: for a Holocaust art air. So it's definitely rare and
Speaker 1: it's following in the Altman case Footsteps, which was now
Speaker 1: several years ago. Thanks EMC. That's mc sanila of Buck Alter.
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 on
Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
Speaker 1: and at www dot bloomberg dot com slash podcast, Slash Law,
Speaker 1: and remember to tune into The Bloomberg Law Show every
Speaker 1: week now at ten b m. Wall Street Time. I'm
Speaker 1: June Grossow, and you're listening to Bloomberg