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Speaker 1: Welcome to a special holiday edition of Bloomberg Law. I'm

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Speaker 1: June Grosso. Tomorrow, the Supreme Court returns to the bench.

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Speaker 1: The Justices will hear nine oral arguments in the last

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Speaker 1: two weeks of February. In the course of the next hour,

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Speaker 1: we're going to take a look at some of the

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Speaker 1: most important cases the Justices will hear this month, as

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Speaker 1: well as some of the other big cases pending at

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Speaker 1: the Court. But first we'll start with DHAKA, the Deferred

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Speaker 1: Action for Childhood Arrivals and Obama era program, which blocks

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Speaker 1: the deportation of undocumented immigrants who were brought to the

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Speaker 1: US as children. Last year, President Trump ended the program,

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Speaker 1: a move that was defended by White House Press Secretary

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Speaker 1: Sarah Sanders at the time. President's doctor decision brings us

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Speaker 1: closer to a safer, fairer, and legal immigration system. Now

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Speaker 1: that he has into this unsustainable and unconstitutional program imposed

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Speaker 1: by the previous administration, the President is calling on the

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Speaker 1: men and women in Congress to fulfill their duty to

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Speaker 1: the American people by truly reforming our immigration system for

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Speaker 1: the good of all people. But after a California federal

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Speaker 1: judge dishoned to temporarily banned President Trump from ending the

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Speaker 1: doctor program. The fate of the so called Dreamers is

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Speaker 1: now in the hands of the Supreme Court, from where

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Speaker 1: I'm joined this hour by Greg Store Bloomberg, new Supreme

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Speaker 1: Court reporter, and Paul Smith, a professor at Georgetown Law School.

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Speaker 1: So Greg tell us what the Trump administration is asking

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Speaker 1: the Supreme Court to do well in the DOCCA case.

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Speaker 1: They're asking the Supreme Court to do something highly unusual,

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Speaker 1: which is to directly review that ruling from a federal

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Speaker 1: district judge and to say that the President has the

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Speaker 1: authority to rescind the doctor program. Now, one thing that's

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Speaker 1: interesting about this is that oftentimes when a federal judge

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Speaker 1: will will issue a nationwide injunction the way this district

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Speaker 1: judge did, an administration will immediately go to court for

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Speaker 1: a stay of that ruling. The Trump administration hasn't done that,

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Speaker 1: And what that means is they are actually complying with

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Speaker 1: this rule ling and they are accepting renewal applications from

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Speaker 1: uh people whose DOCCA status was about to expire and

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Speaker 1: who could be subject to deportation. But they're asking the

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Speaker 1: Supreme Court to jump in and give a definitive ruling

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Speaker 1: by the end of June on whether the President ultimately

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Speaker 1: can resend this program. Paul, any idea why they decided

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Speaker 1: to skip the appellate court or to ask for hold

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Speaker 1: on the court's order. Well, the reason they didn't ask

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Speaker 1: for a hole on the courts order, I think is

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Speaker 1: they don't really want doctor to disappear. They want to

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Speaker 1: have a legislative fixed in the meantime, they probably don't

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Speaker 1: want a lot of headlines of individual sympathetic people being deported. Uh.

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Speaker 1: And why they jumped the queue and went past the

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Speaker 1: Court of Appeals up to the Supreme Court is an

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Speaker 1: interesting question. Uh, it is a very unusual procedure, procedural

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Speaker 1: situation for them to do that. I'm not sure. And

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Speaker 1: and how do you think the court will react? Well,

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Speaker 1: I guess my sense is that they are likely to

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Speaker 1: be fairly uh sympathetic to the to the administration and

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Speaker 1: think this is a Supreme Court issue. So if I had,

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Speaker 1: if I was a betting man, I would say that

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Speaker 1: court will probably take the case. And Greg, what's you're

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Speaker 1: feeling on it? Or I might take that bet from

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Speaker 1: Paul only because it is such an unusual well not

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Speaker 1: only because I mean First of all, as as we

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Speaker 1: both said, this is really a highly unusual procedure, and

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Speaker 1: the times of Supreme Court has done it skipped the

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Speaker 1: federal Appeals Court have have either tended to be either

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Speaker 1: things where the urgency and importance was was very obvious,

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Speaker 1: like the Nixon take tapes case or the steel seizure

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Speaker 1: case with with President Harry Truman, or where they were

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Speaker 1: already committed to deciding the issue and they just needed

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Speaker 1: a particular case to to come up. Um. This case

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Speaker 1: does not seem to fit either of those parameters. The government, Uh,

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Speaker 1: the court is very deferential to the Solicitor General as

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Speaker 1: a matter of course, and that may make the difference.

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Speaker 1: And and Paul could end up being right. I wouldn't

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Speaker 1: be stunned either way. But there is very much an

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Speaker 1: uphill climb that the administration has to has to uh

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Speaker 1: get over to get the Supreme Court to agree to

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Speaker 1: do this very unusual thing. And keep in mind also

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Speaker 1: we're talking about a very compressed time frame. I mean,

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Speaker 1: it's later than usual in the term for the Court

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Speaker 1: to agree to take up any case, much less one

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Speaker 1: where they skip the Appeals court. Paul, the court has

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Speaker 1: so many controversial issues that affect society this year? Are

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Speaker 1: they ready to take on another one? Oh? Well, they

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Speaker 1: I think they like to uh to take on the

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Speaker 1: issues that affects society. That's kind of the role they've adopted,

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Speaker 1: and the Court has not been uh timid about doing

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Speaker 1: that in all kinds of areas. As you say, the

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Speaker 1: cases keep piling up there, so I'm not it wouldn't

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Speaker 1: be surprised to see them want to take on one more.

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Speaker 1: But Gregg maybe right that given that they haven't sought

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Speaker 1: a stay and they that it's a little harder to

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Speaker 1: make the case that it's an emergency that the Court

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Speaker 1: should make room for. Greg if you had to pick

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Speaker 1: one case this term, what would you say is the

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Speaker 1: most high profile case. Well, there's the most high high

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Speaker 1: profile and there's the most important, and they may not

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Speaker 1: be the same thing. High profile may well be the

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Speaker 1: masterpiece cake shop cake that the Supreme Court has already

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Speaker 1: heard of arguments in and could decide any time. It

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Speaker 1: probably will be a little later in the term, but

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Speaker 1: in theory they could decide anytime. That's the one where

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Speaker 1: you have the baker in Colorado who uh makes wedding

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Speaker 1: cakes but doesn't want to make him for same sex weddings.

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Speaker 1: He turned a couple down. The Colorado Civil Rights Commission

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Speaker 1: said he was in violation of a law there that

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Speaker 1: bands discrimination on the basis of sexual orientation at at

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Speaker 1: places that do business with the public. Um, the Court

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Speaker 1: heard arguments in it in the fall, and it was

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Speaker 1: really one of those where and Paul may may have

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Speaker 1: a different view. I'm not comfortable predicting how that case

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Speaker 1: is going to come out. It seemed very closely divided,

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Speaker 1: in particular Justice Anne Anthony Kennedy, who you would expect

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Speaker 1: to be in the middle of of these issues. Um uh,

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Speaker 1: you know, was asking questions of both sides. On one side,

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Speaker 1: you have a free speech argument by the Baker, and

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Speaker 1: that's the kind of thing that Justice Kennedy is often

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Speaker 1: very sympathetic towards. On the other side, you have anti

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Speaker 1: discrimination and gay rights and he, of course, you know,

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Speaker 1: as much as anybody, more than anybody, has been the

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Speaker 1: champion of gay rights on the Supreme Court wrote the

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Speaker 1: gay marriage ruling a couple of years ago. So, um,

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Speaker 1: you know, that's one of these cases that has garnered

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Speaker 1: a lot of attention, and from my standpoint, could come

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Speaker 1: out of either way. Well, Paul, I'll be asking you

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Speaker 1: that question as we go on in the program. That's

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Speaker 1: Paul Smith's professor at Georgetown Law School, and Greg Store Bloomberg,

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Speaker 1: News Supreme Court reporter. Coming up. We're going to look

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Speaker 1: ahead to this month's arguments, beginning with a case that

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Speaker 1: will determine the future of mandatory union fees for public

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Speaker 1: sector workers. This is Bloomberg, This is Bloomberg the Law.

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Speaker 1: I'm June Grasso. Last year, the Supreme Court justice is

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Speaker 1: deadlocked four to four on a case that could decide

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Speaker 1: whether five million government workers could refuse to pay union fees. Now,

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Speaker 1: with the addition of Neil Gorzich, the Court has decided

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Speaker 1: to hear the case again. It's now facing new scrutiny

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Speaker 1: from the White House once again. I'm joined by Greg Store,

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Speaker 1: Bloomberg New Supreme Court reporter, and Paul Smith, a professor

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Speaker 1: at Georgetown Law School. Greg, what don't you describe the case?

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Speaker 1: So the case is when the Supreme Court has actually

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Speaker 1: heard before. The central question is whether a public sector

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Speaker 1: worker can be required to pay what some people call

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Speaker 1: agency fees, some people call fair share fees, which are

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Speaker 1: basically the cost of representation by the union. Uh for

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Speaker 1: purposes like collective bargaining. Uh. Not for political purposes. The

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Speaker 1: Supreme Court has already said workers don't have to pay

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Speaker 1: for for um uh truly political work by the union. Uh.

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Speaker 1: There's a worker in Illinois, public sector worker who says,

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Speaker 1: I don't agree with my union. I don't want to

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Speaker 1: have to pay any money here. Um. And the reason

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Speaker 1: I say the Supreme Court has heard has heard it before.

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Speaker 1: Back before Justice Scalia passed away, the Court heard arguments

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Speaker 1: and seemed on the verge of saying that the public

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Speaker 1: sector workers do have that first Amendment right. Then Justice

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Speaker 1: Scalia died and the Court was not able to resolve

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Speaker 1: that case. Now the issue is back at the Supreme Court. Uh.

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Speaker 1: And by all indications, the person who will decide decide

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Speaker 1: the answer is the newest Justice Neil Gorst. Let's talk

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Speaker 1: about the arguments here, Paul, what is the argument? The

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Speaker 1: Trump administration called on the Supreme Court to let millions

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Speaker 1: of public sector workers refused to pay union fees, which

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Speaker 1: shifted the position of the federal government during the Obama era.

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Speaker 1: So tell us what their argument is. Well, the argument

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Speaker 1: it is an interesting flip of position by the listener.

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Speaker 1: General in this case compared to the past. The argument

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Speaker 1: is that requiring a payment of fees to the union

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Speaker 1: is uh to require somebody to be complicit in an

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Speaker 1: institution they don't like. UH that they that they should

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Speaker 1: have a First Amendment right of immunity from having to

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Speaker 1: do that. Uh. And you know, this is a principle

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Speaker 1: that exists in various places in the law. It is

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Speaker 1: an unusual application of it here because these are people

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Speaker 1: who voluntarily take a job as a public sector worker.

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Speaker 1: And if the employer is saying, I really would like

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Speaker 1: to have a single representative of the workers in this

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Speaker 1: in this bargaining unit to negotiate with and to handle grievances,

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Speaker 1: and I'd like everybody who gets the benefit of that

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Speaker 1: to have to pay the freight that the ghost to

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Speaker 1: support that institution, that union. And so uh, there's a

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Speaker 1: there are a lot of pretty good arguments that there's

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Speaker 1: not not a very serious First Amendment claim. On the

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Speaker 1: other hand, it's pretty clear there are five justices who

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Speaker 1: I think it is that we're going to say it is,

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Speaker 1: and that's going to be a very important loss by

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Speaker 1: the public sector unions. Let's talk about the union's position

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Speaker 1: in this Greg. They're they're very very adamant about this

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Speaker 1: case because if they lose those union fees, they still

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Speaker 1: have to go on and they're still negotiating for different

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Speaker 1: things that people who aren't paying the fees are getting

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Speaker 1: the benefit of. Right. And one argument you hear them

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Speaker 1: make is is the free rider argument. You know, they say, Um,

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Speaker 1: at least as it's set up under state law. Look,

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Speaker 1: we the union is going to represent everybody, and it's

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Speaker 1: going to do things that are going to benefit even

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Speaker 1: workers who don't want to pay pay the fees. And

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Speaker 1: if a worker can take those benefits and not pay

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Speaker 1: the fees, then he or she becomes a free rider.

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Speaker 1: And um, more and more people may want to do that,

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Speaker 1: get the benefits without paying the cost, and that would

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Speaker 1: undermine the ability of the union to do its job

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Speaker 1: of representing people. The other big argument the union makes,

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Speaker 1: and actually probably the first one, is that, um, there's

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Speaker 1: a there's a pre existing Supreme Court decision uh from

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Speaker 1: nineteen seventy seven called a BOOD that says unions can

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Speaker 1: require workers to pay these fees. And uh, you know,

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Speaker 1: so they are arguing story decisis the notion that unless

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Speaker 1: there's a really good reason, the court should not overturn

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Speaker 1: its past decisions. So, Paul, how do the justices who

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Speaker 1: want to rule against this rule? You know that union

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Speaker 1: fees do not have to be paid. How do they

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Speaker 1: get around the issue of a boot. Well, they've signaled

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Speaker 1: in several cases, uh in the past that they think

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Speaker 1: a boot is a weak precedent, that it's wrongly decided. Uh.

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Speaker 1: And I think they're going to flatly overrule it in

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Speaker 1: this case. Uh. And the argument is that there's no

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Speaker 1: real separation between the political activities of the union and

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Speaker 1: the sort of union activities of the union in the

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Speaker 1: public sector, because when the union is negotiating for higher

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Speaker 1: wages or higher benefits, that is a form of advocacy

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Speaker 1: to the government, who, after all, the government is the employer.

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Speaker 1: And so when you're you're requiring people to pay the

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Speaker 1: cost of that kind of advocacy, you're basically requiring them

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Speaker 1: wages and benefits for its workers, or something of that kind.

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Speaker 1: That there's no real distinction between the two, the political

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Speaker 1: greg The court split four to four when this was

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Speaker 1: involving the California teachers, so it was a long part

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Speaker 1: as in lines. Is there any doubt in anyone's mind

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Speaker 1: let me just clarify. We we presume it was along

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Speaker 1: But when they issued that four to four decision, it

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Speaker 1: didn't tell us who who who was on what side

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Speaker 1: there's every I mean, this particular issue has not come

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Speaker 1: come before Neil Gorcer's, but I think everybody involved in

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Speaker 1: suggesting he will do and and and vote to overrule

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Speaker 1: have a first Amendment right. That's just sort of based

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Speaker 1: on everything we know about him as as a jurist,

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Speaker 1: limited time on the Supreme Court, it's it seems very

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Speaker 1: very likely he will vote that way. And indeed, Uh,

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Speaker 1: the the about decision will be overturned. Paul, A very

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Speaker 1: broad question. But what will this do to if if

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Speaker 1: the court rules as both of you think they will,

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Speaker 1: what would this do do unions in this country? How

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Speaker 1: big a blow would be? Well, there's a lot of

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Speaker 1: a lot of uncertainty how big a blow it would be.

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Speaker 1: Some would say, look, there's a lot of states already

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Speaker 1: where they're not allowed to charge this fee, and the

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Speaker 1: unions are still operating. Uh, and they'll just go on

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Speaker 1: the way that that way in the states where the

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Speaker 1: separate question whether that might ever extend into the private sector.

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Speaker 1: That the arguments are somewhat complicated about whether or not

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Speaker 1: the constitutional argument could be made by an employee in

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Speaker 1: the private sector. Uh. And so we'll have to wait

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Speaker 1: and see what the consequences are. There may also be

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Speaker 1: a workaround that that the that the states who want

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Speaker 1: basically subsidized the unions directly rather than through the wages,

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Speaker 1: Paul Smith's professor at Georgetown Law School, and Greg Store Bloomberg,

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Speaker 1: New Supreme Court Reporter. Coming up more on this month

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Speaker 1: Supreme Court arguments with a look at a case that

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Speaker 1: could forever change the credit card business. This is Bloomberg

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Speaker 1: Broadcasting live to New York, bloom to Washington, d C,

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Speaker 1: Bloomberg to Boston, Bloomberg twelve hundred to San Francisco, Bloomberg

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Speaker 1: nine sixty to the country, Sirius XM Gental one and

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Speaker 1: dot Com. This is Bloomberg Law. I'm tune Grosso. Later

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Speaker 1: this month, the Supreme Court will hear arguments in a

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Speaker 1: case that could shake up the credit card business. American

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Speaker 1: Express was accused of getting rid of competition by prohibiting

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Speaker 1: merchants from steering customers to cards with lower fees. For

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Speaker 1: more on this potentially momentous case, I'm joined once again

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Speaker 1: by Greg Store, Bloomberg, New Supreme Court reporter, and Paul Smith,

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Speaker 1: a professor at Georgetown Law School. And once again, Greg,

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Speaker 1: I'll ask you to give me the facts of the case. Well,

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Speaker 1: as you said, this is about a policy that American

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Speaker 1: Express has that UM says that merchants cannot explicitly give

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Speaker 1: um customers and incentive to to uh use a card

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Speaker 1: that that has a lower fee. So, in other words,

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Speaker 1: a merchant cannot, under this American Express policy say if

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Speaker 1: you use this this card that charges us less, we

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Speaker 1: will give you, you know, a two percent discount on

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Speaker 1: on your sales price. A group of states and the

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Speaker 1: Obama administration sued American Express, and originally Visa and MasterCard

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Speaker 1: were sued for the for similar UH policies. Visa master

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Speaker 1: Cards settled in. The core issue for the Supreme Court

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Speaker 1: is whether you look at this this activity that this

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Speaker 1: this policy just by looking at, um, what merchants have

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Speaker 1: to pay, or as American Express argues, do you also

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Speaker 1: look at the end result on consumers. American Express says,

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Speaker 1: what we're actually doing is um, uh, we're taking some

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Speaker 1: of these higher fees that we get from merchants and

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Speaker 1: we are using them to give customers other incentives. Our

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Speaker 1: customers other incentives, and uh So it's really just a

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Speaker 1: question of how you analyze this sort of what's called

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Speaker 1: a dual market in an anitrust context. Paul, what do

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Speaker 1: the merchants want to be able to do? Do they

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Speaker 1: want to be able to say, oh, we'll give you

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Speaker 1: this much less if you use a Discover card instead

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Speaker 1: of American Express. I mean, how would they actually give

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Speaker 1: this benefit that they want to to the customers. Well,

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Speaker 1: there's a variety of ways in which they could steer

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Speaker 1: people towards using the lower cost card, by making making

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Speaker 1: the price lower, or by giving a special checkout place

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Speaker 1: for those who use certain cards and not other cards

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Speaker 1: make it more efficient for people to pay. Uh. They're

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Speaker 1: they're very subtle or very direct ways in which they

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Speaker 1: could subsidize people and push them in the direction of

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Speaker 1: using something where the where the fee is lower for

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Speaker 1: the merchant. So what's interesting here is that the court

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Speaker 1: is interested in a case that complicated because it's under

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Speaker 1: the rule of reason. There's a million of factors. It's

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Speaker 1: not the sort of thing they usually like to wait into.

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Speaker 1: The argument is, as Gregg said, the American Express is

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Speaker 1: making is we may charge the merchant a little bit more,

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Speaker 1: but we have a different business model. We have a

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Speaker 1: premium card that gives all sorts of benefits to consumers.

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Speaker 1: And you need to look at what they call the

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Speaker 1: two sided price, the prices it relates to consumers and

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Speaker 1: the prices and relates to merchants in our overall package

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Speaker 1: of costs and benefits that we give to the overall

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Speaker 1: marketplace is not a restraint of trade. It has benefits

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Speaker 1: as well as burdens, and you should allow this model

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Speaker 1: to continue. June, I just point out that the tech

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Speaker 1: industry is watching this case very closely because this sort

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Speaker 1: of dual market applies UH in a lot of contexts.

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Speaker 1: And you can imagine, for example, UM, you know an

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Speaker 1: online merchant who is dealing both with UM UH the

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Speaker 1: ultimate maker of the product and the consumers UM that

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Speaker 1: there is a lot of concern that the court might

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Speaker 1: make it harder to sue UH a lot of technologically

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Speaker 1: advanced companies. Now, Paul, what seems unusual is the Justice

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Speaker 1: Department also sued American Express, but it didn't join the

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Speaker 1: appeal to the Supreme Court. Is there a reason behind that?

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Speaker 1: I'm not sure what the reason for that is. They

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Speaker 1: filed a brief though on the merits and supporting the appeal,

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Speaker 1: so I'm not sure it makes a difference. Greg, do

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Speaker 1: you think it makes any difference it? Um, may not

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Speaker 1: make any difference in the ultimate disposition of the case.

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Speaker 1: It was certainly intriguing it when the the administration did

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Speaker 1: not file its own certain petition, one thought, hey, the

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Speaker 1: chances of the court taking this case up are less.

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Speaker 1: While the court decided to take it up anyway. Uh,

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Speaker 1: you know that may have been a function in part

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Speaker 1: of uh, when that decision was made by the Trump administration.

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Speaker 1: They didn't have a confirmed head of the antitrust Division

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Speaker 1: at the Justice Department, they didn't have a confirmed solicitor general.

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Speaker 1: And uh, you know, there are a lot of decisions

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Speaker 1: that you have to make when you're a new a

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Speaker 1: new administration, and it may have been that they weren't

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Speaker 1: quite ready to have this sort of issue up before

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Speaker 1: them at the Supre Court. I'm entirely speculating at this point. Um,

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Speaker 1: but it is not uh certainly not unheard of. In fact,

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Speaker 1: it often happens that that an administration and solicitor general

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Speaker 1: will say, you know, we think the lower court got

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Speaker 1: it wrong, but um, it's not important enough for the

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Speaker 1: Supreme Court to take it up. That's sort of the

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Speaker 1: stands they took. But now that the Supreme Court has

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Speaker 1: taken it up, they are defending that. They are saying

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Speaker 1: that the lower court decision should be overturned. I'm speaking

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Speaker 1: with Bloomberg Supreme Court reporter Greg Store and Paul Smith,

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Speaker 1: a professor at Georgetown Law School. Coming up, we're going

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Speaker 1: to check in on some of this term's most notable

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Speaker 1: Supreme Court cases. This is Bloomberg. When is the best

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Speaker 1: time to talk to your family about staying in touch

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Speaker 1: during a disaster amid the chaos? Where is the best time?

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Speaker 1: Perhaps today? Go to Ready dot gov slash communicate and

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Speaker 1: make your emergency plan today. Don't wait. Communicate Brought to

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Speaker 1: you by FEMA and the AD Council. I'm June Grassa.

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Speaker 1: You're listening to a special President's Day edition of Bloomberg Law.

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Speaker 1: We've been talking about some of the biggest cases facing

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Speaker 1: the Supreme Court, which goes back into session tomorrow. One

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Speaker 1: of the most important cases facing the nine justices this

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Speaker 1: term involves a bakery in Colorado where Jack Phillips, the

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Speaker 1: owner of Masterpiece Cake Shop, refused to make a wedding

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Speaker 1: cake for Charlie Craig and David Mullins, a gay couple.

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Speaker 1: He argued that he's a cake artist and that making

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Speaker 1: a cake against his religious beliefs violates his First Amendment

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Speaker 1: right as an artist. But David Cole legal counsel for

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Speaker 1: the couple and the national legal director of the American

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Speaker 1: Civil Liberties Union, says the requirement to serve everyone without

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Speaker 1: discrimination over rules personal expression. The fact that somebody objects

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Speaker 1: to the message that equal treatment sends doesn't give him

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Speaker 1: a First Amendment right to opt out of the basic

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Speaker 1: requirement that businesses treat all their customers equal. For more

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Speaker 1: on this potentially landmark case, I'm once again joined by

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Speaker 1: Greg Store Bloomberg, new Supreme Court reporter, and Paul Smith,

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Speaker 1: a professor at Georgetown Law School. Well, we spoke about

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Speaker 1: this a little bit earlier, but Paul, what is your

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Speaker 1: take on how the Court's going to rule in this

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Speaker 1: It's a tough one. Well, it is a hard one

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Speaker 1: to predict. I think most people would say it's going

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Speaker 1: to come down to Justice Anthony Kennedy. Uh. And in

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Speaker 1: the argument, he seemed to be somewhat annoyed with both sides.

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Speaker 1: He felt that the the argument that stores should be

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Speaker 1: able to discriminate against gay people was offensive. On the

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Speaker 1: other hand, he didn't like the way he perceived the

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Speaker 1: Colorado Anti Discrimination Commission is having kind of an anti

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Speaker 1: religious uh bias, or at least one member of the Commission.

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Speaker 1: He quoted something that was said. He didn't like that.

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Speaker 1: He I probably wish that he could find a way

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Speaker 1: to rule for both sides or against both sides. At

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Speaker 1: this point, this is certainly the case that a lot

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Speaker 1: of people know about. I think of all the Supreme

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Speaker 1: Court cases, it's the one that pople even know the

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Speaker 1: name of the big shop. Let's turn to something that

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Speaker 1: may be important in the elections, and that's the the

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Speaker 1: case of Ohio purging its voter rolls. And we've spoken

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Speaker 1: about this a little before, Greg, tell us a little

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Speaker 1: about this. Yeah, so this is this is a case

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Speaker 1: um that the Court has already heard arguments in UH.

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Speaker 1: It has to do with Ohio's system for purging people

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Speaker 1: from its voter roles. And there's a federal law that

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Speaker 1: says UH states should try to call their voted voter

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Speaker 1: databases to get, you know, to keep them up to date.

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Speaker 1: But one thing they can't do is they can't remove

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Speaker 1: people for failure to vote. So what Colorado, obviously, what

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Speaker 1: Ohio does on your system, which which critics say is

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Speaker 1: the strictest in the nation, is if you don't vote

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Speaker 1: once they in an election, they will send you a notice,

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Speaker 1: and then if you don't send back that notice saying yeah,

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Speaker 1: I still live here, um, and then you vote for

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Speaker 1: the next two elections, Ohio will purge you from their

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Speaker 1: their roles. And the core question, it's a statutory question,

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00:24:09,960 --> 00:24:11,920
Speaker 1: not a constitutional one, a though it feels like a

434
00:24:12,480 --> 00:24:15,400
Speaker 1: constitutional type issue. It's a question under this federal statute

435
00:24:15,400 --> 00:24:18,879
Speaker 1: whether that is removing people from the roles because of

436
00:24:18,920 --> 00:24:22,879
Speaker 1: their failure to vote. Well, you represented the challenges in

437
00:24:22,960 --> 00:24:26,959
Speaker 1: this case, and surprisingly Justice Stephen Bryer seemed to be

438
00:24:27,000 --> 00:24:29,880
Speaker 1: siding with the conservatives on the court, and he gave

439
00:24:29,960 --> 00:24:32,560
Speaker 1: you quite a hard time with his questions, how did

440
00:24:32,640 --> 00:24:35,600
Speaker 1: you handle that? Well, you know, when you're up there

441
00:24:35,600 --> 00:24:38,200
Speaker 1: trying to make a point and one justice is giving

442
00:24:38,200 --> 00:24:40,000
Speaker 1: you a lot of pushback and kind of interfering, you

443
00:24:40,080 --> 00:24:43,000
Speaker 1: never like it. Uh. And this was he was a

444
00:24:43,080 --> 00:24:45,920
Speaker 1: justice that we're going in probably would have expected maybe

445
00:24:45,960 --> 00:24:48,040
Speaker 1: to be more supportive. So that was a little bit upsetting.

446
00:24:48,359 --> 00:24:50,000
Speaker 1: But in the end I think I was able to

447
00:24:50,040 --> 00:24:53,479
Speaker 1: explain to him of that the kind of notice that

448
00:24:53,560 --> 00:24:57,879
Speaker 1: Ohio sins provides no real information about the underlying issue,

449
00:24:57,880 --> 00:24:59,920
Speaker 1: which is what has this person left the state or

450
00:25:00,119 --> 00:25:02,960
Speaker 1: or the county has this person moved away? They send

451
00:25:03,000 --> 00:25:06,320
Speaker 1: a forwardable notice, a notice that goes to wherever the

452
00:25:06,320 --> 00:25:09,760
Speaker 1: person is. The people don't return it, and when that happens,

453
00:25:09,760 --> 00:25:12,080
Speaker 1: the state doesn't know anything about whether the person has

454
00:25:12,119 --> 00:25:16,120
Speaker 1: moved away or not. And so in the end, I think, uh,

455
00:25:16,160 --> 00:25:18,600
Speaker 1: the answer in the case is that the only reason

456
00:25:18,640 --> 00:25:20,840
Speaker 1: they have to think this person has moved away is

457
00:25:20,840 --> 00:25:22,920
Speaker 1: their non voting and that's the one thing they can't

458
00:25:22,960 --> 00:25:25,760
Speaker 1: rely on under the statute. It is a it is

459
00:25:25,800 --> 00:25:28,560
Speaker 1: a purge for non voting, and that's banned by law.

460
00:25:29,160 --> 00:25:32,760
Speaker 1: What do you see as the implications of this case,

461
00:25:32,840 --> 00:25:36,119
Speaker 1: I mean it will just relate to Ohio. Will we

462
00:25:36,160 --> 00:25:40,840
Speaker 1: see other states expanding their purge their their voting laws

463
00:25:40,880 --> 00:25:45,240
Speaker 1: in this way? If if Ohio wins, you know there

464
00:25:45,359 --> 00:25:48,160
Speaker 1: are a lot of states to be frank these days

465
00:25:48,160 --> 00:25:50,360
Speaker 1: who are looking for waste. Does our trim the electorate

466
00:25:50,400 --> 00:25:54,280
Speaker 1: in a little bit to to keep the one party

467
00:25:54,280 --> 00:25:56,240
Speaker 1: in power? It's usually the Republicans that are doing it

468
00:25:56,280 --> 00:25:59,040
Speaker 1: these days. And so if the court says this is okay,

469
00:26:00,040 --> 00:26:02,200
Speaker 1: it's pretty clear that it has a part of the impact.

470
00:26:02,200 --> 00:26:05,160
Speaker 1: That most of the people are vote only sporadically tend

471
00:26:05,200 --> 00:26:08,000
Speaker 1: to be poorer tend to be minority voters. Is just

472
00:26:08,119 --> 00:26:10,000
Speaker 1: the sodam I R pointed out in the argument, and

473
00:26:10,080 --> 00:26:12,480
Speaker 1: so you may see other states copy copycatting. This is

474
00:26:12,520 --> 00:26:16,119
Speaker 1: a way to change just another slight edge in who's

475
00:26:16,200 --> 00:26:21,399
Speaker 1: voting in effect outcomes of elections. Another one of the

476
00:26:21,520 --> 00:26:26,560
Speaker 1: issues that seems to be going through our society over

477
00:26:26,600 --> 00:26:31,600
Speaker 1: and over again is our privacy protections and digital privacy protections.

478
00:26:31,720 --> 00:26:34,679
Speaker 1: And another one of the cases that has garnered a

479
00:26:34,720 --> 00:26:37,959
Speaker 1: lot of interest is the Carpenter case. Greg tell us

480
00:26:38,000 --> 00:26:41,400
Speaker 1: about that case, and well, we all learned about cell

481
00:26:41,400 --> 00:26:45,159
Speaker 1: phone pinging from that case. Yeah, So this is a case,

482
00:26:45,520 --> 00:26:49,879
Speaker 1: um about something that that everybody's phone does, which is

483
00:26:50,280 --> 00:26:53,399
Speaker 1: when you are out somewhere UH and you make a

484
00:26:53,480 --> 00:26:56,960
Speaker 1: call that the phone connects to a nearby cell phone

485
00:26:57,000 --> 00:27:02,760
Speaker 1: tower and the information about at UH is stored by

486
00:27:03,240 --> 00:27:07,119
Speaker 1: the the phone company. And so you can imagine if

487
00:27:07,119 --> 00:27:09,040
Speaker 1: you're out a lot and you're making a lot of calls,

488
00:27:09,080 --> 00:27:11,320
Speaker 1: the phone company gets a lot of information about you.

489
00:27:11,520 --> 00:27:14,320
Speaker 1: And in this case, UH, it's it's a criminal case

490
00:27:14,320 --> 00:27:18,440
Speaker 1: involving a man who UH was on trial for taking

491
00:27:18,440 --> 00:27:22,119
Speaker 1: part in a series of armed robberies. UH. The just

492
00:27:22,480 --> 00:27:26,200
Speaker 1: the prosecutors got information about his location, which happened to

493
00:27:26,200 --> 00:27:29,720
Speaker 1: to uhh coincide very nicely with with where the armed

494
00:27:29,760 --> 00:27:32,080
Speaker 1: robberies were taking place. And it got it under a

495
00:27:32,119 --> 00:27:35,760
Speaker 1: federal statute that doesn't require prosecutors to get a search

496
00:27:35,760 --> 00:27:40,600
Speaker 1: warrant to to to show the probable cause, uh that

497
00:27:40,680 --> 00:27:43,159
Speaker 1: you you need as a prosecutor to to get a

498
00:27:43,200 --> 00:27:48,480
Speaker 1: search warrant. And uh, the question for the Supreme Court is,

499
00:27:48,920 --> 00:27:51,800
Speaker 1: first of all, whether this information about where your cell

500
00:27:51,800 --> 00:27:54,240
Speaker 1: phone was when you were making a call and where

501
00:27:54,280 --> 00:27:57,120
Speaker 1: you were is something that is protected by the Fourth Amendment.

502
00:27:57,119 --> 00:28:01,959
Speaker 1: And if so, whether uh it is enough that they

503
00:28:02,000 --> 00:28:03,639
Speaker 1: had to make a little bit of a lesser showing

504
00:28:03,800 --> 00:28:07,560
Speaker 1: under this this federal statute, something lesser than probable cause,

505
00:28:07,640 --> 00:28:10,439
Speaker 1: whether that is adequate to meet the requirements of the

506
00:28:10,480 --> 00:28:16,240
Speaker 1: Fourth Amendment. Paul, most of the justices were expressing concerns

507
00:28:16,280 --> 00:28:23,240
Speaker 1: about privacy rights to Justice certainly was very very explicit

508
00:28:23,280 --> 00:28:25,960
Speaker 1: about the problems that that can happen if you have

509
00:28:26,440 --> 00:28:30,359
Speaker 1: too much of this kind of intrusion and tell us

510
00:28:30,400 --> 00:28:35,879
Speaker 1: about how they've norm they've often ruled in cases involving privacy.

511
00:28:36,720 --> 00:28:40,080
Speaker 1: Justices in recent years have been very strong on protecting

512
00:28:40,760 --> 00:28:44,560
Speaker 1: privacy from the kinds of invasions that occur with new technology.

513
00:28:44,600 --> 00:28:47,440
Speaker 1: We had a GPS case where the government took the

514
00:28:47,480 --> 00:28:49,760
Speaker 1: position that they could put a GPS device on your

515
00:28:49,760 --> 00:28:52,640
Speaker 1: car for months at a time and record everywhere you drive,

516
00:28:52,720 --> 00:28:55,520
Speaker 1: and the court said that was that was a Fourth

517
00:28:55,520 --> 00:28:59,160
Speaker 1: Amendment problem. Uh. Here the real issue is the so

518
00:28:59,280 --> 00:29:02,960
Speaker 1: called third party doctrines that when you have given all

519
00:29:02,960 --> 00:29:05,920
Speaker 1: this information to a third party here the telephone company,

520
00:29:06,000 --> 00:29:08,560
Speaker 1: you no longer have any Fourth Amendment protection from it.

521
00:29:08,680 --> 00:29:11,480
Speaker 1: That that's why the warrant requirement of the probable cause

522
00:29:11,560 --> 00:29:16,600
Speaker 1: requirements shouldn't apply. Since the government UH and Justice are

523
00:29:16,640 --> 00:29:18,840
Speaker 1: in that prior GPS case is already on record and

524
00:29:18,960 --> 00:29:23,160
Speaker 1: suggesting that we should rethink that doctrine that virtually everything

525
00:29:23,480 --> 00:29:26,000
Speaker 1: about us is in the hands of third parties these days,

526
00:29:26,800 --> 00:29:29,800
Speaker 1: we need to have more protections of all the data,

527
00:29:29,840 --> 00:29:32,200
Speaker 1: all that all those materials that are that the Googles

528
00:29:32,440 --> 00:29:36,200
Speaker 1: of the world have and the telephone companies have on us.

529
00:29:36,440 --> 00:29:39,640
Speaker 1: And so I think the court will again move in

530
00:29:39,680 --> 00:29:43,600
Speaker 1: the direction of greater privacy protection responding to technological developments

531
00:29:43,600 --> 00:29:48,600
Speaker 1: here that that threatened privacies. So Greg turning to another topic,

532
00:29:48,640 --> 00:29:52,600
Speaker 1: the Supreme Court has agreed to decide whether law enforcement

533
00:29:52,640 --> 00:29:58,080
Speaker 1: officials conducting a criminal investigation can demand data held overseas

534
00:29:58,240 --> 00:30:01,920
Speaker 1: by Microsoft and other tech companies. This is certainly another

535
00:30:02,000 --> 00:30:05,880
Speaker 1: high stakes clash over digital privacy. Tell us a little

536
00:30:05,880 --> 00:30:07,920
Speaker 1: more about it. Yeah, this is a case that the

537
00:30:07,960 --> 00:30:09,840
Speaker 1: Court is going to be arguing in the sitting that

538
00:30:10,000 --> 00:30:13,760
Speaker 1: is that is just about to begin. Um. And it interestingly,

539
00:30:13,760 --> 00:30:16,560
Speaker 1: it also has to do with the same law that's

540
00:30:16,560 --> 00:30:19,080
Speaker 1: called the Story Communications Act that was an issue in

541
00:30:19,080 --> 00:30:21,720
Speaker 1: in the cell phone case. When a company like in

542
00:30:21,720 --> 00:30:24,640
Speaker 1: this case Microsoft, if you set up an Outlook account

543
00:30:24,640 --> 00:30:28,360
Speaker 1: with with Microsoft, and you set it up in a

544
00:30:28,440 --> 00:30:33,040
Speaker 1: foreign country country, Microsoft's policy is, UM, we will store

545
00:30:33,160 --> 00:30:35,440
Speaker 1: all that information that you're about to start sending us

546
00:30:35,880 --> 00:30:38,560
Speaker 1: uh somewhere near where you set it up uh in

547
00:30:38,560 --> 00:30:43,240
Speaker 1: this case Ireland. And the question is whether this federal

548
00:30:43,320 --> 00:30:47,479
Speaker 1: laws US law, the Story Communications Act, let's the federal

549
00:30:47,560 --> 00:30:51,280
Speaker 1: government get access to that information even though it's it's

550
00:30:51,360 --> 00:30:57,440
Speaker 1: all the way in Ireland. And the government essentially argues, Um, first,

551
00:30:57,520 --> 00:30:59,400
Speaker 1: you don't know what the nationality of this person is,

552
00:30:59,440 --> 00:31:03,760
Speaker 1: who who UH set up that account? And second of all,

553
00:31:03,880 --> 00:31:06,400
Speaker 1: we're not asking anybody in Ireland to do anything. The

554
00:31:06,440 --> 00:31:10,000
Speaker 1: folks in Redmond, Washington, where Microsoft is headquartered, can just

555
00:31:10,200 --> 00:31:12,640
Speaker 1: you know, uh click click a mouse a couple of

556
00:31:12,680 --> 00:31:15,200
Speaker 1: times and get the information that we need. So it's

557
00:31:15,280 --> 00:31:19,600
Speaker 1: it's really a question of is this information actually overseas

558
00:31:19,680 --> 00:31:23,800
Speaker 1: and outside the reach of federal authorities or is it

559
00:31:24,520 --> 00:31:27,880
Speaker 1: domestic and therefore covered by this federal law. Paul, how

560
00:31:27,920 --> 00:31:29,480
Speaker 1: do you think the court will react to this? That

561
00:31:29,600 --> 00:31:34,760
Speaker 1: Storage Communications Act is from and it certainly is different

562
00:31:34,880 --> 00:31:37,160
Speaker 1: from the era that we live in now, right, I mean,

563
00:31:37,280 --> 00:31:39,280
Speaker 1: it's interesting. I think everybody would agree this is an

564
00:31:39,320 --> 00:31:41,560
Speaker 1: issue on which Congress needs to weigh in and update

565
00:31:41,640 --> 00:31:44,560
Speaker 1: the law. There's been efforts to get Congress to do

566
00:31:44,680 --> 00:31:48,200
Speaker 1: that so far unsuccessful. But what the Court may very

567
00:31:48,240 --> 00:31:50,360
Speaker 1: well figure is we should figure out the answer here

568
00:31:50,440 --> 00:31:52,760
Speaker 1: that that is most likely to get the Congress to

569
00:31:52,800 --> 00:31:54,920
Speaker 1: come in and do a job on this. You know,

570
00:31:55,160 --> 00:31:57,120
Speaker 1: I'm not entirely sure which way they'll go on this one.

571
00:31:57,720 --> 00:32:00,719
Speaker 1: It is an interesting problem because the electrons are over

572
00:32:00,760 --> 00:32:04,640
Speaker 1: there in Ireland wherever this stuff is stored. But as

573
00:32:04,800 --> 00:32:07,160
Speaker 1: as as Gregg says, they can, they can get this

574
00:32:07,200 --> 00:32:09,080
Speaker 1: stuff with a couple of key strokes. I want to

575
00:32:09,120 --> 00:32:12,360
Speaker 1: thank you both for spending this hour with me. That's

576
00:32:12,400 --> 00:32:15,760
Speaker 1: Paul Smith's professor at Georgetown Law School, and Greg Store,

577
00:32:15,800 --> 00:32:19,000
Speaker 1: Bloomberg New Supreme Court reporter. That's it for this special

578
00:32:19,080 --> 00:32:22,840
Speaker 1: holiday edition of Bloomberg Law. You can listen to politics, policy,

579
00:32:22,960 --> 00:32:25,880
Speaker 1: power and law every weekday at twelve pm Wall Street Time,

580
00:32:26,160 --> 00:32:29,080
Speaker 1: thanks to our producer David Suckerman. I'm June Basso. This

581
00:32:29,560 --> 00:32:30,240
Speaker 1: is Bloomberg