1 00:00:00,480 --> 00:00:05,680 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:06,200 --> 00:00:09,239 Speaker 1: Many liberals are calling for the Democrats to impose term 3 00:00:09,360 --> 00:00:12,040 Speaker 1: limits or expand the size of the Supreme Court and 4 00:00:12,119 --> 00:00:15,160 Speaker 1: pack it with liberal justices to counter the six to 5 00:00:15,240 --> 00:00:19,160 Speaker 1: three conservative majority that's ahead. But those aren't the only 6 00:00:19,200 --> 00:00:23,360 Speaker 1: reforms under consideration. Some are arguing for structural changes that 7 00:00:23,400 --> 00:00:26,520 Speaker 1: would strip away power from the judiciary. Joining me is 8 00:00:26,560 --> 00:00:28,880 Speaker 1: Samuel moy And, a professor of law and history at 9 00:00:28,920 --> 00:00:36,640 Speaker 1: Yale University, explain what jurisdiction stripping is. Jurisdiction stripping refers 10 00:00:36,720 --> 00:00:43,000 Speaker 1: to a congressional attempt to remove certain kinds of cases 11 00:00:43,280 --> 00:00:48,720 Speaker 1: from the federal courts. The Constitution is actually pretty extraordinary 12 00:00:48,760 --> 00:00:51,800 Speaker 1: in an Article three and giving lots of power to 13 00:00:52,000 --> 00:00:57,800 Speaker 1: the legislative branch to tell the judiciary what it can do. Actually, 14 00:00:58,080 --> 00:01:00,720 Speaker 1: Article three says there has to be a Supreme Court, 15 00:01:00,920 --> 00:01:03,920 Speaker 1: but the fact that there are lower courts at all 16 00:01:04,280 --> 00:01:08,920 Speaker 1: is entirely up to Congress. And Article three also gives 17 00:01:09,319 --> 00:01:12,480 Speaker 1: a lot of authority to the legislature to decide what 18 00:01:12,680 --> 00:01:16,400 Speaker 1: cases go where and what kinds of cases the federal 19 00:01:16,440 --> 00:01:19,600 Speaker 1: courts can hear. So the idea of jurisdiction stripping, which 20 00:01:20,000 --> 00:01:24,120 Speaker 1: really goes back into the early twentieth century and progressives 21 00:01:24,120 --> 00:01:27,679 Speaker 1: have advocated it in Conservatives at different points in the 22 00:01:27,760 --> 00:01:32,800 Speaker 1: last century, is to say that something that Congress wants 23 00:01:32,880 --> 00:01:36,600 Speaker 1: should be treated as off limits for the federal court 24 00:01:36,680 --> 00:01:40,800 Speaker 1: to mess with. And um, for progressive like me, it's 25 00:01:40,840 --> 00:01:44,280 Speaker 1: it seems like a tool that, um, if Joe Biden 26 00:01:44,360 --> 00:01:48,720 Speaker 1: wins and the Senate changes hands, um could be used 27 00:01:48,720 --> 00:01:54,000 Speaker 1: to protect any of the next Congress's most important legislation, 28 00:01:54,200 --> 00:01:57,440 Speaker 1: like HR one or even a Green New Deal if 29 00:01:57,520 --> 00:02:01,240 Speaker 1: the Democrats get around to it. So was it in 30 00:02:01,280 --> 00:02:09,040 Speaker 1: the eighties that the Conservatives tried some legislation involving jurisdiction stripping, 31 00:02:09,160 --> 00:02:12,440 Speaker 1: and there was a memo written by John Roberts at 32 00:02:12,480 --> 00:02:16,880 Speaker 1: the Department of Justice about this. Did any of that work? 33 00:02:16,919 --> 00:02:20,520 Speaker 1: Were they ever able to pull it off? You know? 34 00:02:20,639 --> 00:02:23,400 Speaker 1: That's that's that's absolutely right that when he was a 35 00:02:23,440 --> 00:02:27,240 Speaker 1: young lawyer, Chief Justice John Roberts now Chief Justice read 36 00:02:27,280 --> 00:02:32,480 Speaker 1: the Constitution and surveyed the history and and advised that 37 00:02:32,639 --> 00:02:36,320 Speaker 1: jurisdiction stripping is fair game. Now it's only you know, 38 00:02:36,960 --> 00:02:41,480 Speaker 1: only honest to note that jurisdiction stripping has rarely happened 39 00:02:41,960 --> 00:02:45,920 Speaker 1: in American history. UM. It has to be take the 40 00:02:45,960 --> 00:02:49,279 Speaker 1: form of a statute or be attached to other statutes 41 00:02:50,240 --> 00:02:54,080 Speaker 1: about other things that passed both houses of Congress and 42 00:02:54,600 --> 00:02:57,919 Speaker 1: either get signed by the President or survived his veto. 43 00:02:58,000 --> 00:03:02,200 Speaker 1: And those are conditions that don't favor jurisdiction stripping as 44 00:03:02,200 --> 00:03:06,120 Speaker 1: a tool. UM. But while the Republicans have been the 45 00:03:06,160 --> 00:03:09,000 Speaker 1: ones who have tried it with you know, things like 46 00:03:09,280 --> 00:03:13,960 Speaker 1: flag burning. UM, in recent decades, UM, there have been 47 00:03:14,040 --> 00:03:19,480 Speaker 1: successful instances of jurisdiction stripping, most notably in the immigration area, 48 00:03:20,120 --> 00:03:25,840 Speaker 1: where it's been very difficult for defenders of immigrants rights 49 00:03:25,960 --> 00:03:29,320 Speaker 1: to get a hearing in federal courts because of jurisdiction 50 00:03:29,400 --> 00:03:33,600 Speaker 1: stripping by Congress and on a bipartisan pasis. Actually, after 51 00:03:33,639 --> 00:03:37,160 Speaker 1: September eleven two one, there was a lot of work 52 00:03:37,280 --> 00:03:43,760 Speaker 1: across the aisle to deprive accused terrorists of their rights 53 00:03:43,800 --> 00:03:48,800 Speaker 1: in federal courts, also through jurisdiction stripping. So it's possible, 54 00:03:48,960 --> 00:03:53,240 Speaker 1: it's difficult, for sure, So explain how it works. You 55 00:03:53,280 --> 00:03:57,200 Speaker 1: pass a statute and you attach this provision onto it. 56 00:03:57,880 --> 00:04:00,640 Speaker 1: That's right, UM, That would be the most obvious way now, 57 00:04:00,920 --> 00:04:04,320 Speaker 1: but the courts exist also in virtue of statutes except 58 00:04:04,360 --> 00:04:08,480 Speaker 1: the Supreme Court. But even the Supreme Court jurisdiction depends 59 00:04:08,640 --> 00:04:13,480 Speaker 1: on a kind of general jurisdiction granting statute, and so 60 00:04:13,880 --> 00:04:18,040 Speaker 1: it's always possible for Congress to pass another general statute 61 00:04:18,160 --> 00:04:22,520 Speaker 1: that defines the kind of boundaries of the jurisdiction of 62 00:04:22,560 --> 00:04:25,800 Speaker 1: the various federal courts. But much more plausible to me 63 00:04:25,880 --> 00:04:29,479 Speaker 1: at least, is that if there's a law that the 64 00:04:29,600 --> 00:04:35,039 Speaker 1: Congress particularly cares about, it can use jurisdiction stripping techniques 65 00:04:35,200 --> 00:04:40,240 Speaker 1: in that statute to protect it from the judiciary taking 66 00:04:40,279 --> 00:04:42,760 Speaker 1: pot shots at it. If you go back, you remember 67 00:04:42,800 --> 00:04:47,120 Speaker 1: the Affordable Care Act was initially seen to be unquestionably 68 00:04:47,800 --> 00:04:51,599 Speaker 1: within Congress's power under the Constitution, and it wasn't thinkable 69 00:04:51,720 --> 00:04:56,200 Speaker 1: when the Affordable Care Act path that the judiciary would 70 00:04:56,200 --> 00:04:59,560 Speaker 1: take it apart. But then that's what happened. And so 71 00:04:59,720 --> 00:05:03,440 Speaker 1: now know, if there's further healthcare reform or an important 72 00:05:03,560 --> 00:05:08,239 Speaker 1: environmental law statute, you you might think that it would 73 00:05:08,279 --> 00:05:11,120 Speaker 1: only make sense for a Congress to back up its 74 00:05:11,240 --> 00:05:15,520 Speaker 1: law with an attempt to guard it, especially since now 75 00:05:15,640 --> 00:05:18,520 Speaker 1: there's they're gonna be six conservative votes on the Supreme 76 00:05:18,520 --> 00:05:24,080 Speaker 1: Court and a thoroughly trumpified judiciary because of um, Donald 77 00:05:24,080 --> 00:05:29,480 Speaker 1: Trump and Donald Begone's very successful agenda of getting conservative 78 00:05:29,560 --> 00:05:33,160 Speaker 1: judges throughout the federal judiciary. And remember, a case only 79 00:05:33,240 --> 00:05:35,840 Speaker 1: comes to the Supreme Court in general once it's made 80 00:05:35,839 --> 00:05:40,040 Speaker 1: it through the lower courts. Um. So given that situation 81 00:05:40,160 --> 00:05:44,400 Speaker 1: where you could expect that Democrats will control the political branches, 82 00:05:44,560 --> 00:05:49,080 Speaker 1: the Presidency and the Congress, and a big conservative right 83 00:05:49,080 --> 00:05:53,600 Speaker 1: wing legacy within the stronghold of the judiciary, it just 84 00:05:53,800 --> 00:05:57,760 Speaker 1: makes sense to think that any self respecting Congress will 85 00:05:57,800 --> 00:06:01,760 Speaker 1: want to think about protecting its law against um there 86 00:06:02,080 --> 00:06:06,520 Speaker 1: you know, invalidation or revision. You know what happened to Obamacare. 87 00:06:06,800 --> 00:06:10,320 Speaker 1: So explain how this would work. Congress would pass a 88 00:06:10,400 --> 00:06:13,440 Speaker 1: law and there would be a provision in it saying 89 00:06:13,520 --> 00:06:19,080 Speaker 1: something like this is not subject to review by the courts. Essentially, um, 90 00:06:19,200 --> 00:06:20,960 Speaker 1: you know, there are various ways of doing it. I 91 00:06:20,960 --> 00:06:25,839 Speaker 1: mean what would happen is that that litigants who don't 92 00:06:25,880 --> 00:06:30,039 Speaker 1: like the statute could still bring the question to the 93 00:06:30,080 --> 00:06:33,520 Speaker 1: courts of whether the jurisdiction stripping part of the statute 94 00:06:33,600 --> 00:06:37,200 Speaker 1: is valid um, not just the larger law or the 95 00:06:37,240 --> 00:06:40,960 Speaker 1: provisions of the larger law, and it's not as if 96 00:06:41,240 --> 00:06:44,039 Speaker 1: you know, there's anything to be you know, to be 97 00:06:44,160 --> 00:06:50,200 Speaker 1: done to keep the the judiciary from considering jurisdictions stripping 98 00:06:50,360 --> 00:06:55,039 Speaker 1: illegal or beyond Congress's power, especially if there are constitutional 99 00:06:55,160 --> 00:06:58,800 Speaker 1: claims in play. But it makes it harder UM. You know, 100 00:06:58,880 --> 00:07:02,520 Speaker 1: there's not going to be a fail safe UM, but 101 00:07:03,200 --> 00:07:07,800 Speaker 1: a jurisdiction stripping UM aspect to a statute provides more 102 00:07:07,880 --> 00:07:12,880 Speaker 1: protection than UM. It provides another hurdle that lit against 103 00:07:12,920 --> 00:07:16,800 Speaker 1: and UM, a friendly judiciary would have to kind of 104 00:07:17,000 --> 00:07:22,000 Speaker 1: leap over to if their goal is to invalidate federal law. 105 00:07:22,520 --> 00:07:26,760 Speaker 1: So because you'd imagine that if this kind of law 106 00:07:27,400 --> 00:07:31,680 Speaker 1: comes before the Supreme Court, the Supreme Court will likely 107 00:07:31,760 --> 00:07:36,200 Speaker 1: say that that's not constitutional. You know, the fact is 108 00:07:36,280 --> 00:07:40,160 Speaker 1: that there's a big academic debate about UM about this 109 00:07:40,280 --> 00:07:44,960 Speaker 1: very topic, but we have limited UM actual Supreme Court 110 00:07:45,560 --> 00:07:48,960 Speaker 1: jurisprudence on this subject, in part because, as I mentioned, 111 00:07:49,280 --> 00:07:51,880 Speaker 1: it's pretty rare that the Congress has been able to 112 00:07:52,000 --> 00:07:57,240 Speaker 1: organize itself to engage in control of of of of jurisdiction, 113 00:07:57,360 --> 00:08:01,680 Speaker 1: especially to protect statute UM. So we don't know what 114 00:08:01,720 --> 00:08:04,120 Speaker 1: would happen. We know what the arguments would look like. 115 00:08:04,200 --> 00:08:07,040 Speaker 1: The dominant opinion in the legal academy for a long 116 00:08:07,080 --> 00:08:11,320 Speaker 1: time has been that Congress has much more power to 117 00:08:11,480 --> 00:08:17,480 Speaker 1: engage in jurisdiction stripping than it has exploited so far. 118 00:08:17,920 --> 00:08:22,320 Speaker 1: And um, you may think that the Supreme Court would 119 00:08:22,480 --> 00:08:26,000 Speaker 1: would protect its its power, but you never know. I mean, 120 00:08:26,040 --> 00:08:28,720 Speaker 1: I think it would depend on the law and question 121 00:08:28,800 --> 00:08:34,040 Speaker 1: what it was trying to do and what constitutional infirmities. Um, 122 00:08:34,080 --> 00:08:39,440 Speaker 1: you know, litigants claimed they needed the judiciary to protect. 123 00:08:39,679 --> 00:08:42,720 Speaker 1: I should also note there is a World War two 124 00:08:42,760 --> 00:08:46,000 Speaker 1: era case in which the Congress set up a jurisdiction 125 00:08:46,280 --> 00:08:50,320 Speaker 1: channeling mechanism where it said, um, we don't want to 126 00:08:50,400 --> 00:08:56,719 Speaker 1: strip uh this statute and make it immune to all challenges. 127 00:08:56,760 --> 00:08:59,120 Speaker 1: So what we'll do is we'll set up a special 128 00:08:59,160 --> 00:09:03,600 Speaker 1: court with in the executive branch um, and then say 129 00:09:03,640 --> 00:09:09,239 Speaker 1: the judicial branch can't review, um, the questions about the statute. 130 00:09:09,280 --> 00:09:14,880 Speaker 1: And in a Supreme Court case in the Supreme Court 131 00:09:14,920 --> 00:09:19,679 Speaker 1: actually said that's okay. So stripping could go along with 132 00:09:19,840 --> 00:09:24,520 Speaker 1: what's called jurisdiction channeling, where you kind of redirect litigation 133 00:09:24,600 --> 00:09:28,360 Speaker 1: around a statute somewhere else than the federal judiciary. But 134 00:09:28,520 --> 00:09:33,079 Speaker 1: you're ultimately you're right and any kind of confrontation with 135 00:09:33,720 --> 00:09:36,680 Speaker 1: the power of the courts will be a confrontation. It 136 00:09:36,720 --> 00:09:39,920 Speaker 1: will be political to its core, and there will be 137 00:09:39,960 --> 00:09:43,040 Speaker 1: a lot of legal claims. But you know, there's no 138 00:09:43,120 --> 00:09:46,720 Speaker 1: alternative unless we just want to see the judiciary as 139 00:09:46,760 --> 00:09:50,600 Speaker 1: a place where progressive legislation goes to die. You agree, 140 00:09:50,679 --> 00:09:55,080 Speaker 1: then when conservatives argue that any of these moves the jurisdictions, 141 00:09:55,120 --> 00:10:00,719 Speaker 1: stripping the court, packing the term limits would politicize the court, well, 142 00:10:00,760 --> 00:10:04,360 Speaker 1: I already think it's thoroughly politicized. So um, you know, 143 00:10:04,400 --> 00:10:07,120 Speaker 1: the question is whether it's too good or bad ends 144 00:10:07,160 --> 00:10:11,840 Speaker 1: And it's certainly true that conservatives will make all the 145 00:10:11,920 --> 00:10:17,040 Speaker 1: claims they have available and progressives will reply, and you 146 00:10:17,080 --> 00:10:21,119 Speaker 1: know that. Then it sort of depends both on Congress, 147 00:10:21,200 --> 00:10:24,200 Speaker 1: what what risks it wants to take, how far out 148 00:10:24,200 --> 00:10:27,319 Speaker 1: on a limit wants to go, and on the judiciary, 149 00:10:27,400 --> 00:10:31,000 Speaker 1: because if it makes a controversial decision, as we're gonna 150 00:10:31,040 --> 00:10:35,040 Speaker 1: see very soon, if the Affordable Care Act ends up 151 00:10:35,080 --> 00:10:39,240 Speaker 1: totally invalidated, there's going to be rage in the country. Um. 152 00:10:39,280 --> 00:10:43,280 Speaker 1: You know, if if Congress um actually can garner support 153 00:10:43,360 --> 00:10:48,480 Speaker 1: for progressive legislation and protects its legislation, through jurisdiction stripping, 154 00:10:48,760 --> 00:10:51,280 Speaker 1: and the Supreme Court says, never mind, we're going to 155 00:10:51,360 --> 00:10:55,520 Speaker 1: strike it down anyway. It will anticipate some pushback, So 156 00:10:55,679 --> 00:10:59,160 Speaker 1: maybe the jurisdiction stripping will make it a little less 157 00:10:59,200 --> 00:11:03,800 Speaker 1: invasive over time. And that's that's that's an outcome that 158 00:11:03,840 --> 00:11:07,040 Speaker 1: progressives may have to live with. It's better than the alternatives, 159 00:11:07,080 --> 00:11:09,560 Speaker 1: which is, you know, the death of some of the 160 00:11:10,320 --> 00:11:14,640 Speaker 1: of the provisions they're trying to pass through the political branches. 161 00:11:15,000 --> 00:11:18,640 Speaker 1: There's been a lot more attention. In fact, it's become 162 00:11:18,800 --> 00:11:21,880 Speaker 1: you know, a topic in the debates of packing the court, 163 00:11:22,000 --> 00:11:26,640 Speaker 1: expanding the court. Correct. What's your view on expanding the court? Well, 164 00:11:26,679 --> 00:11:30,040 Speaker 1: it seems like that's gonna be the court reform that 165 00:11:30,080 --> 00:11:33,600 Speaker 1: gets the lion share of attention and maybe priority, especially 166 00:11:33,600 --> 00:11:38,199 Speaker 1: if Amy Coney Barrett is confirmed, as seems a certainty. Um. 167 00:11:38,240 --> 00:11:42,400 Speaker 1: But even if if the Democrats pack the court so called, 168 00:11:42,480 --> 00:11:45,719 Speaker 1: or expand the personnel by a couple of justices to 169 00:11:45,960 --> 00:11:49,120 Speaker 1: undo the damage of Mitch McConnell as they see it, 170 00:11:49,679 --> 00:11:54,320 Speaker 1: the court will be back um in the status quo 171 00:11:54,400 --> 00:11:57,480 Speaker 1: anti Neil Gore such which for many people is an 172 00:11:57,520 --> 00:12:03,720 Speaker 1: intolerable baseline. Um. Even before um, Donald Trump you know, 173 00:12:03,800 --> 00:12:07,480 Speaker 1: became president and got three appointed appointment to the Supreme 174 00:12:07,520 --> 00:12:13,240 Speaker 1: Court was the most business friendly body UM in a century. Uh. 175 00:12:13,280 --> 00:12:18,440 Speaker 1: And if progressives really do want to push through you know, UM, 176 00:12:18,800 --> 00:12:25,080 Speaker 1: legislation around the environment, or or health care or economic inequality, UM, 177 00:12:25,240 --> 00:12:28,960 Speaker 1: the Supreme Court is a dangerous place, even if it's 178 00:12:29,000 --> 00:12:33,240 Speaker 1: packed with a couple of new justices. In more generally, 179 00:12:34,120 --> 00:12:37,720 Speaker 1: you know justices, even ones who are added in the 180 00:12:37,760 --> 00:12:40,520 Speaker 1: short term, will stay for a while and be replaced 181 00:12:40,559 --> 00:12:44,280 Speaker 1: through normal political prophecies. So for the long term, it 182 00:12:44,320 --> 00:12:46,959 Speaker 1: seems to me we should care about the question of 183 00:12:47,320 --> 00:12:52,000 Speaker 1: how powerful we leave the Supreme Court, not just obsessed 184 00:12:52,360 --> 00:12:55,480 Speaker 1: by who serves on it in the short term. Thank 185 00:12:55,520 --> 00:12:58,160 Speaker 1: you for being on the Bloomberg Law Show. That's Samuel 186 00:12:58,240 --> 00:13:00,720 Speaker 1: moy and he's a professor of history and law at 187 00:13:00,800 --> 00:13:05,679 Speaker 1: Yale University. After four days of hearings on the nomination 188 00:13:05,720 --> 00:13:08,920 Speaker 1: of Judge Amy Coney Barrett to the Supreme Court, Senate 189 00:13:08,960 --> 00:13:11,680 Speaker 1: majority leader Mitch McConnell said he has the votes to 190 00:13:11,720 --> 00:13:15,160 Speaker 1: win Senate confirmation and expects to bring the nomination to 191 00:13:15,200 --> 00:13:18,480 Speaker 1: the floor on October twenty three. The forty eight year 192 00:13:18,520 --> 00:13:20,760 Speaker 1: old Barrett has been a judge on the seven Circuit 193 00:13:20,800 --> 00:13:23,800 Speaker 1: Court of Appeals for three years after being a professor 194 00:13:23,840 --> 00:13:28,040 Speaker 1: in Notre Dame Law School. Barrett's mentor was the Conservative icon, 195 00:13:28,160 --> 00:13:31,320 Speaker 1: the late Justice and In Scalia, and she follows his 196 00:13:31,400 --> 00:13:35,360 Speaker 1: judicial philosophy of originalism, but she said that mentors and 197 00:13:35,400 --> 00:13:39,360 Speaker 1: proteges disagree. If I'm confirmed, you would not be getting 198 00:13:39,400 --> 00:13:43,480 Speaker 1: justice Scalia. You would be getting justice Barrett. In twenty 199 00:13:43,520 --> 00:13:47,400 Speaker 1: hours of questioning, Barrett declined to answer questions on issues 200 00:13:47,400 --> 00:13:51,200 Speaker 1: from abortion rights, to voting rights, to Obamacare and any 201 00:13:51,200 --> 00:13:54,360 Speaker 1: other issue that might come before the Supreme Court. I've 202 00:13:54,440 --> 00:13:57,840 Speaker 1: repeatedly said, as has every other nominee who sat in 203 00:13:57,880 --> 00:14:01,439 Speaker 1: this seat, that we can't answer questions and the abstract 204 00:14:01,600 --> 00:14:03,440 Speaker 1: that would have to be decided in the course of 205 00:14:03,480 --> 00:14:07,800 Speaker 1: the judicial process. My guess is Josh Blackman, a constitutional 206 00:14:07,880 --> 00:14:11,360 Speaker 1: law professor at the South Texas College of Law. Josh, 207 00:14:11,400 --> 00:14:14,040 Speaker 1: what did we learn from the hearings? And most of 208 00:14:14,040 --> 00:14:17,000 Speaker 1: the question was pretty vapid, was pretty empty. There wasn't 209 00:14:17,080 --> 00:14:20,800 Speaker 1: much substance there. Um. The senators are reading carefully scripted 210 00:14:20,880 --> 00:14:24,480 Speaker 1: questions and Judge Barrett smart enough to not answer anything disqualifying, 211 00:14:24,560 --> 00:14:27,800 Speaker 1: So there was very little like Wow, what an enlightning exchange. 212 00:14:27,880 --> 00:14:32,280 Speaker 1: It was mostly just people making speech to their constituencies. Broadly, 213 00:14:32,800 --> 00:14:35,960 Speaker 1: there are assertions that her vote could change the law 214 00:14:36,040 --> 00:14:41,200 Speaker 1: in areas like abortion rights, Obamacare, lgbt Q rights, gun rights, 215 00:14:41,280 --> 00:14:44,480 Speaker 1: voting rights. Broadly, where do you think her vote on 216 00:14:44,520 --> 00:14:48,320 Speaker 1: the Court will change the law and what areas you know? 217 00:14:48,680 --> 00:14:52,800 Speaker 1: I think judges aren't always that predictable. Um. It seems 218 00:14:52,800 --> 00:14:56,560 Speaker 1: in a consistent basis that Republican presents point judges, and 219 00:14:56,600 --> 00:15:00,080 Speaker 1: those judges vote in unexpected ways in case involving gay rights, 220 00:15:00,080 --> 00:15:04,800 Speaker 1: in case involving abortion, in cases involving LGBT rights, in 221 00:15:04,840 --> 00:15:09,280 Speaker 1: case involving obamacare. So I wouldn't pretend to know how 222 00:15:09,360 --> 00:15:11,880 Speaker 1: she'll vote. Um, But I think we can all be 223 00:15:12,080 --> 00:15:14,280 Speaker 1: candid to say that she's going to be more conservative 224 00:15:14,320 --> 00:15:16,760 Speaker 1: than Justice Ginsberg and think we all agree on that. 225 00:15:17,480 --> 00:15:20,720 Speaker 1: And there might be some case involving abortion or federal 226 00:15:20,800 --> 00:15:24,040 Speaker 1: power or free speech where I think Jessice Barrett may 227 00:15:24,080 --> 00:15:26,840 Speaker 1: come out differently than Justice Ginsburg. Without questions, you push 228 00:15:26,920 --> 00:15:29,280 Speaker 1: the Court to the right in what's become typical for 229 00:15:29,360 --> 00:15:32,920 Speaker 1: Supreme Court nominees. She refused to answer questions on a 230 00:15:32,960 --> 00:15:36,680 Speaker 1: host of issues, some she's even expressed personal opinions on 231 00:15:36,720 --> 00:15:40,520 Speaker 1: in the past, such as abortion rights, and Democrats pressed 232 00:15:40,520 --> 00:15:44,440 Speaker 1: her to comment on some very basic legal principles, for example, 233 00:15:44,800 --> 00:15:47,440 Speaker 1: if the president has the authority to deny a person 234 00:15:47,640 --> 00:15:50,680 Speaker 1: the right to vote based on their race, and even 235 00:15:50,720 --> 00:15:55,000 Speaker 1: in those areas, she refused to plainly say, no, what 236 00:15:55,040 --> 00:15:58,280 Speaker 1: does that tell you? You know, there's just old standing 237 00:15:58,400 --> 00:16:01,000 Speaker 1: rule that doesn't make a lot of sense. Judges can't 238 00:16:01,000 --> 00:16:03,480 Speaker 1: answer questions when they're on these hearings, and the reason 239 00:16:03,520 --> 00:16:05,600 Speaker 1: why they can answer a sort of a technical reason. 240 00:16:06,480 --> 00:16:08,600 Speaker 1: When you go to a court and you want to 241 00:16:08,600 --> 00:16:12,200 Speaker 1: have a fair hearing, you expect a judge to be neutral. 242 00:16:12,880 --> 00:16:14,960 Speaker 1: But if the judge has already answered how they think 243 00:16:14,960 --> 00:16:17,320 Speaker 1: to have a question should be ruled, then they're not neutral. 244 00:16:17,640 --> 00:16:21,120 Speaker 1: So to avoid creating complix of interest, judges won't tell 245 00:16:21,120 --> 00:16:23,320 Speaker 1: you what they think. But the reason why you want 246 00:16:23,360 --> 00:16:25,160 Speaker 1: to appoint the judge is because of what they think. 247 00:16:25,440 --> 00:16:27,880 Speaker 1: So it's it's weird chicken and egg dance. It's HiT's 248 00:16:27,920 --> 00:16:31,000 Speaker 1: a bizarre dance. That's how it works. Lindsey Graham opened 249 00:16:31,040 --> 00:16:34,360 Speaker 1: one day by saying, you know, she's a conservative woman, 250 00:16:34,680 --> 00:16:37,920 Speaker 1: pro life woman, going to the Supreme Court and laudd that. 251 00:16:38,200 --> 00:16:41,400 Speaker 1: And you have the president and his list that was 252 00:16:41,480 --> 00:16:45,520 Speaker 1: called by the Federalist Society. So isn't it sort of 253 00:16:45,680 --> 00:16:51,880 Speaker 1: obvious almost that she will be very conservative? Oh? Sure, yeah, 254 00:16:51,920 --> 00:16:54,080 Speaker 1: I mean, I mean that's why she was picked. Uh. 255 00:16:54,120 --> 00:16:56,040 Speaker 1: And I think the President gets to make that call 256 00:16:56,160 --> 00:16:58,840 Speaker 1: because he's in office and he has a vote. He's 257 00:16:58,840 --> 00:17:02,520 Speaker 1: getting his judge confirmed. Um. If the Democrats had a Senate, 258 00:17:02,520 --> 00:17:04,760 Speaker 1: there's no ways she would be confirmed. I think we're 259 00:17:04,760 --> 00:17:07,800 Speaker 1: getting to a place where unless the President and the 260 00:17:07,880 --> 00:17:10,800 Speaker 1: Senate have the same party to both Democrats are both Republicans, 261 00:17:11,240 --> 00:17:14,000 Speaker 1: you don't confirm a nominee. Um. The only reason Judge 262 00:17:14,000 --> 00:17:16,280 Speaker 1: Barrett will get through it's because you have Republican Senate, 263 00:17:16,400 --> 00:17:22,159 Speaker 1: at least for now, and Republican presidency. Ideology is becoming 264 00:17:22,160 --> 00:17:24,240 Speaker 1: a huge factor because the Court has such a central 265 00:17:24,320 --> 00:17:28,639 Speaker 1: role in our society. And I think that that it's unfortunate, 266 00:17:28,640 --> 00:17:31,800 Speaker 1: but that's the pattern we're headed. At what point in 267 00:17:31,880 --> 00:17:38,600 Speaker 1: Supreme Court nominations did ideology become important? I think the 268 00:17:38,640 --> 00:17:42,040 Speaker 1: process started getting really ugly during the Robbert work hearing 269 00:17:42,080 --> 00:17:47,880 Speaker 1: Insen things really circling downhill. And then during the Clarence 270 00:17:47,920 --> 00:17:51,080 Speaker 1: Thomas hearing a few years later. Um, then there was 271 00:17:51,080 --> 00:17:54,280 Speaker 1: a bit of a lull where the Ginsburg hearing was 272 00:17:54,280 --> 00:17:57,240 Speaker 1: was normal, the semi or here. I'm sorry that the 273 00:17:57,280 --> 00:18:00,960 Speaker 1: Brier hearing was normal. But then when Roberts people try 274 00:18:01,040 --> 00:18:04,600 Speaker 1: to belong and there was actually a filibuster plan for 275 00:18:04,720 --> 00:18:08,720 Speaker 1: leaders didn't quite work. Um went through smooth. He went 276 00:18:08,760 --> 00:18:12,040 Speaker 1: through smooth. But then with Corse Sitch, there's all this 277 00:18:12,080 --> 00:18:15,439 Speaker 1: hostility because of the Garland affair. So you know, it 278 00:18:15,480 --> 00:18:18,680 Speaker 1: seems that the Democratic justice seems to pass through pretty 279 00:18:18,720 --> 00:18:22,680 Speaker 1: well and Republican justice seems to have all these increasing hostility. Um, 280 00:18:22,720 --> 00:18:25,760 Speaker 1: but I think you know, when if president if there's 281 00:18:25,760 --> 00:18:28,440 Speaker 1: a President Biden, we'll see the same hostility from the right. 282 00:18:28,840 --> 00:18:30,520 Speaker 1: But it doesn't matter anymore if you have the votity 283 00:18:30,520 --> 00:18:32,520 Speaker 1: of the votes. It's just it's just you put your 284 00:18:32,520 --> 00:18:35,960 Speaker 1: person through. The Democrats on the committee focused a great 285 00:18:35,960 --> 00:18:39,760 Speaker 1: deal on Obamacare. The Supreme Court is going to hear 286 00:18:39,800 --> 00:18:43,680 Speaker 1: a challenge to that law on November tenth, and Judge 287 00:18:43,720 --> 00:18:46,679 Speaker 1: Barrett seemed to try to distance herself from her past 288 00:18:46,760 --> 00:18:52,000 Speaker 1: criticism of Chief Justice John Roberts, reasoning in the opinion 289 00:18:52,040 --> 00:18:55,360 Speaker 1: that upheld the core of the A c. A. Did 290 00:18:55,400 --> 00:18:57,960 Speaker 1: she succeed? You know, I think this is a place 291 00:18:58,080 --> 00:19:01,480 Speaker 1: where Judge Barrett she wrote something that isn't ideal for her, 292 00:19:01,640 --> 00:19:04,600 Speaker 1: where she wrote that the Chief Justice's opinion was perhaps 293 00:19:04,640 --> 00:19:07,000 Speaker 1: not the best reading of the statute. Now, I think 294 00:19:07,040 --> 00:19:10,240 Speaker 1: that that's a fair characterization of what Robert said, although 295 00:19:10,359 --> 00:19:13,119 Speaker 1: you think Barrett wasn't just a little bit further. But 296 00:19:13,240 --> 00:19:16,399 Speaker 1: even so, the fact that that a professor criticizes the 297 00:19:16,480 --> 00:19:18,760 Speaker 1: case doesn't just squalify them as a judge. I still 298 00:19:18,760 --> 00:19:21,080 Speaker 1: think she can be fair and neutral on this issue. 299 00:19:21,280 --> 00:19:23,560 Speaker 1: I really think that June I have written two books 300 00:19:23,600 --> 00:19:26,240 Speaker 1: on Obamacare, a third coming out. The Court's not going 301 00:19:26,320 --> 00:19:28,520 Speaker 1: to strike an Obamacare. It's just not going to happen. 302 00:19:28,560 --> 00:19:30,680 Speaker 1: It's this myth that people keep saying they wanted to 303 00:19:30,760 --> 00:19:33,359 Speaker 1: be true. It's not going to happen. Then why do 304 00:19:33,440 --> 00:19:37,840 Speaker 1: Republicans keep suing over Obamacare? If it's not going to happen. 305 00:19:38,400 --> 00:19:40,280 Speaker 1: This will be the third time it goes up to 306 00:19:40,320 --> 00:19:42,879 Speaker 1: the Supreme Court. You know, it's like the story of 307 00:19:42,880 --> 00:19:44,960 Speaker 1: the dog that keeps chasing the car, and we get 308 00:19:45,000 --> 00:19:46,840 Speaker 1: she doesn't know what to do. I don't know why 309 00:19:47,080 --> 00:19:50,640 Speaker 1: it's just the fixation on repealing Obamacare that's just never passed. 310 00:19:50,680 --> 00:19:52,639 Speaker 1: And I've been following this not for nearly a decade. 311 00:19:52,640 --> 00:19:55,040 Speaker 1: I don't really understand it. But the timing is not 312 00:19:55,080 --> 00:19:57,280 Speaker 1: going for Judge Barrett, I'll admit that much. So let's 313 00:19:57,320 --> 00:20:01,480 Speaker 1: discuss this super precedent the theory of super precedents. Is 314 00:20:01,520 --> 00:20:06,119 Speaker 1: there a general, legally accepted principle of what constitutes a 315 00:20:06,200 --> 00:20:08,919 Speaker 1: super precedent that should not be reversed by the court. 316 00:20:10,000 --> 00:20:13,080 Speaker 1: This concept of super precedent sounds really important, but it's 317 00:20:13,119 --> 00:20:16,280 Speaker 1: not a real thing. It's searches made up. Um, you 318 00:20:16,280 --> 00:20:19,159 Speaker 1: know the screen courts never used this phrase. Um, you know, 319 00:20:19,240 --> 00:20:23,160 Speaker 1: all precedent um is important. But the courts also wis 320 00:20:23,240 --> 00:20:27,120 Speaker 1: reverse precedent when it has the votes. Um. I don't 321 00:20:27,119 --> 00:20:30,120 Speaker 1: expect though, that Judge Barrett will votes to radically alter society. 322 00:20:30,920 --> 00:20:33,399 Speaker 1: We've had a very long history in this country where 323 00:20:33,960 --> 00:20:38,400 Speaker 1: precedents that even might seem wrong, uh, sort of stay 324 00:20:39,480 --> 00:20:42,119 Speaker 1: on the books. What the court does instead is they 325 00:20:42,119 --> 00:20:45,800 Speaker 1: don't reverse the precedent. They simply modify it, and they 326 00:20:45,960 --> 00:20:49,040 Speaker 1: scale it back and they reduce it. That's been the 327 00:20:49,280 --> 00:20:51,760 Speaker 1: that's in the pattern. You sort of modify President believe 328 00:20:51,800 --> 00:20:54,000 Speaker 1: in the name, and I think that's what's more likely 329 00:20:54,040 --> 00:20:56,159 Speaker 1: to happen with some of the issues. Some of the 330 00:20:56,200 --> 00:21:00,160 Speaker 1: issues you mentioned, like abortion, or or or or religious freedom. 331 00:21:00,200 --> 00:21:03,960 Speaker 1: The Supreme Court nominees in recent history have been willing 332 00:21:04,000 --> 00:21:07,600 Speaker 1: to say that Roe v. Wade was precedent, and just 333 00:21:07,680 --> 00:21:11,760 Speaker 1: as Kavanaugh said it was precedent on precedent, Judge Barrett's 334 00:21:11,760 --> 00:21:14,560 Speaker 1: she was willing to say a few cases were correctly decided, 335 00:21:14,840 --> 00:21:19,240 Speaker 1: Brown v. Board, which struck down school segregation, Loving the Virginia, 336 00:21:19,680 --> 00:21:24,160 Speaker 1: which invalidated prohibitions against interracial marriage, but she hedged on 337 00:21:24,320 --> 00:21:28,280 Speaker 1: Griswold v. Connecticut, the Court's decisions striking down a ban 338 00:21:28,440 --> 00:21:33,439 Speaker 1: on contraceptive sales too married couples, and she refused to 339 00:21:33,480 --> 00:21:37,800 Speaker 1: say that Roe v. Wade was super precedent. What do 340 00:21:37,840 --> 00:21:40,880 Speaker 1: we take from that? I think Judge Barrett's being more 341 00:21:40,960 --> 00:21:45,160 Speaker 1: candid than were judges caving um. I think Judges kavan 342 00:21:45,200 --> 00:21:48,040 Speaker 1: On Gorsuch said that they had to say that it confirmed. 343 00:21:48,480 --> 00:21:50,399 Speaker 1: I don't get that impression from Judge Barrett. I think 344 00:21:50,440 --> 00:21:53,879 Speaker 1: Judge Barrett speaking actually quite candid. Um. There are some 345 00:21:53,920 --> 00:21:56,000 Speaker 1: precedents that that we are not being challenged any what 346 00:21:56,080 --> 00:22:00,760 Speaker 1: people don't disagree with them, Um, Brown, Porter of education 347 00:22:00,840 --> 00:22:03,840 Speaker 1: is one of them. People vigorously disagree with the basis 348 00:22:03,840 --> 00:22:06,359 Speaker 1: of a right to abortion, and the basis of a 349 00:22:06,480 --> 00:22:08,639 Speaker 1: right to contraception leads to the right to abortion. So 350 00:22:08,640 --> 00:22:11,800 Speaker 1: if you disagree with the abortion precedence, you very likely 351 00:22:11,800 --> 00:22:15,360 Speaker 1: me disagree the contraceptive precedents. Now it's sort of a myth. 352 00:22:15,440 --> 00:22:18,120 Speaker 1: There's no state in the meaning that's trying to band contraception. 353 00:22:18,320 --> 00:22:20,440 Speaker 1: This is what Barrett said. It's just it's not good 354 00:22:20,480 --> 00:22:23,119 Speaker 1: to happen. That's not a thing Um those states trying it. 355 00:22:23,200 --> 00:22:25,480 Speaker 1: So it's sort of of a issue. But once you 356 00:22:25,560 --> 00:22:28,840 Speaker 1: conceee that the contraception case is the right, that leads 357 00:22:28,840 --> 00:22:30,800 Speaker 1: a groundward for saying that the abortion case is the right. 358 00:22:30,880 --> 00:22:32,719 Speaker 1: And I think she prudently says I can't go down 359 00:22:32,760 --> 00:22:35,359 Speaker 1: either road. And looking at her track record on the 360 00:22:35,440 --> 00:22:40,320 Speaker 1: Seventh Circuit as far as abortion, Um, she upheld a 361 00:22:40,400 --> 00:22:44,600 Speaker 1: protest buffer zone around abortion clinics, and she wanted the 362 00:22:44,680 --> 00:22:48,080 Speaker 1: full court to weigh in on an Indiana law that 363 00:22:48,160 --> 00:22:52,240 Speaker 1: required that funerals be held for fetal remains. And she 364 00:22:52,320 --> 00:22:55,320 Speaker 1: also wanted to have a full Court hearing on an 365 00:22:55,320 --> 00:22:57,560 Speaker 1: Indiana law that would have made it harder for a 366 00:22:57,640 --> 00:23:00,959 Speaker 1: minor to have an abortion without her parents being notified. 367 00:23:01,240 --> 00:23:04,280 Speaker 1: So does her track record at the Seventh Circuit tell 368 00:23:04,400 --> 00:23:08,440 Speaker 1: us where she stands in any event? Well, I think 369 00:23:08,600 --> 00:23:11,040 Speaker 1: when you're a lower court judge, you're in a different position. 370 00:23:11,200 --> 00:23:13,520 Speaker 1: When you're a lower court judge, you're you're you're bound 371 00:23:13,520 --> 00:23:16,080 Speaker 1: by what the Spreme Court says. And I think what 372 00:23:16,200 --> 00:23:19,240 Speaker 1: her defense actually said was that the Supreme Court might 373 00:23:19,240 --> 00:23:20,880 Speaker 1: want to take a look at this, right. I don't 374 00:23:20,920 --> 00:23:24,399 Speaker 1: think that um, her the descent she joined was actually 375 00:23:24,480 --> 00:23:27,480 Speaker 1: quite broader to me is and characterizing it um. But 376 00:23:27,920 --> 00:23:29,520 Speaker 1: you know, she's now in a new seat. She's not 377 00:23:29,520 --> 00:23:31,280 Speaker 1: found by the Spreme Court. She's not found as the 378 00:23:31,320 --> 00:23:33,200 Speaker 1: lower court judge. I think she could deflect her wings 379 00:23:33,200 --> 00:23:35,639 Speaker 1: a bit more so. I think, without questions, she'll be 380 00:23:35,720 --> 00:23:39,359 Speaker 1: closer to Justice Thomas and Alisio an abortion um than 381 00:23:39,480 --> 00:23:41,520 Speaker 1: she will be do you know, say Justice Kennedy or 382 00:23:41,600 --> 00:23:46,159 Speaker 1: even Chief Justice Robin. She's embraced the judicial philosophy of 383 00:23:46,200 --> 00:23:51,760 Speaker 1: her mentor Justice auntin Scalia, originalism and textualism. Explain what 384 00:23:51,840 --> 00:23:56,120 Speaker 1: that means. Originals is a very simple idea Um. If 385 00:23:56,160 --> 00:23:58,600 Speaker 1: you or I write something and we want to know 386 00:23:58,640 --> 00:24:01,000 Speaker 1: what it means, we would look at sources say what 387 00:24:01,000 --> 00:24:05,119 Speaker 1: are those words meaning near. But over time, the meaning 388 00:24:05,119 --> 00:24:07,960 Speaker 1: of language can drift and change. UM. So if you 389 00:24:08,000 --> 00:24:11,040 Speaker 1: read a text in the seventeen nineties, UM, we may 390 00:24:11,160 --> 00:24:13,400 Speaker 1: not use the same language today as we use back 391 00:24:13,440 --> 00:24:18,000 Speaker 1: then originally to figure out what is the meaning of 392 00:24:18,000 --> 00:24:22,000 Speaker 1: the words in the Constitution as it would have been 393 00:24:22,080 --> 00:24:25,240 Speaker 1: understood in the seventeen nineties. Um. And this is the 394 00:24:25,280 --> 00:24:28,679 Speaker 1: philosophy that was once considered fringe. Um, and it is 395 00:24:28,680 --> 00:24:31,760 Speaker 1: now becoming quite mainstream. I think Justice Lee when it's 396 00:24:31,800 --> 00:24:34,000 Speaker 1: a lot of work to make it mainstream, and now 397 00:24:34,000 --> 00:24:36,639 Speaker 1: it was launched law clerk just Barrett will down the 398 00:24:36,680 --> 00:24:41,879 Speaker 1: court as another predoriginalist and textualist. Textualism is very similar 399 00:24:41,920 --> 00:24:45,840 Speaker 1: to originalism. The differences. You're interpreting a statute, right, not 400 00:24:45,960 --> 00:24:49,720 Speaker 1: a constitution of two years old, but an Act of Congress, 401 00:24:49,800 --> 00:24:51,960 Speaker 1: and it's the same principles. You're trying to figure out 402 00:24:52,000 --> 00:24:56,000 Speaker 1: what the Congress means, not necessarily what individual people intended, 403 00:24:56,400 --> 00:24:58,919 Speaker 1: what was the meaning of the words they chose? Justice 404 00:24:59,280 --> 00:25:03,240 Speaker 1: I thought was wrongly decided and he voted against gay 405 00:25:03,280 --> 00:25:07,480 Speaker 1: marriage Obamacare and the Voting Rights Act. She said, you're 406 00:25:07,520 --> 00:25:11,120 Speaker 1: not going to get Justice Scalia, You'll get Justice Barrett. 407 00:25:11,680 --> 00:25:15,040 Speaker 1: Or if you're an originalist and a textualist, would you 408 00:25:15,119 --> 00:25:19,600 Speaker 1: come to the same conclusion as Justice Scalia did on 409 00:25:19,640 --> 00:25:24,160 Speaker 1: those issues. Originalists don't always agree with each other. In fact, 410 00:25:24,200 --> 00:25:27,560 Speaker 1: the often disagree, very often. Justice Thomas and Justice S. 411 00:25:27,560 --> 00:25:30,080 Speaker 1: Glee are in different sides of the case. Um So, 412 00:25:30,119 --> 00:25:32,479 Speaker 1: I think it's the myth that originalism has on one 413 00:25:32,520 --> 00:25:34,280 Speaker 1: set advance, because I think it does lead to many 414 00:25:34,280 --> 00:25:38,480 Speaker 1: different uh, many different positions. I don't know where Judge 415 00:25:38,480 --> 00:25:40,919 Speaker 1: Barrett will fall. Um My guess it should be closer 416 00:25:40,960 --> 00:25:43,600 Speaker 1: to Justice Thomas and Justice Alito, but she could fall 417 00:25:43,760 --> 00:25:46,159 Speaker 1: were on the court. I'm not sure. She was asked 418 00:25:46,160 --> 00:25:50,280 Speaker 1: about her dissent in a gun rights case where she 419 00:25:50,640 --> 00:25:54,440 Speaker 1: argued that a conviction for a non violent felony shouldn't 420 00:25:54,480 --> 00:25:59,960 Speaker 1: automatically disqualify someone from owning a gun. Is that contradict 421 00:26:00,080 --> 00:26:04,600 Speaker 1: three to what Justice Scalia wrote in Heller Well. Heller 422 00:26:06,520 --> 00:26:09,360 Speaker 1: was a decision from two thousand eight that held at 423 00:26:09,359 --> 00:26:12,080 Speaker 1: the Second Amendment for text or right to their arms. Um. 424 00:26:12,080 --> 00:26:16,120 Speaker 1: Howard didn't try to answer all the separate questions. Um. 425 00:26:16,119 --> 00:26:20,640 Speaker 1: Heller said that certain long standing prohibitions on criminals uh 426 00:26:20,880 --> 00:26:23,760 Speaker 1: might be valid. Um, but there has not been a 427 00:26:23,800 --> 00:26:27,040 Speaker 1: long standing prohibition on non violent selms a necessarily novel 428 00:26:27,080 --> 00:26:30,119 Speaker 1: and recent innovation. And what Judge Barrett wrote is that 429 00:26:30,240 --> 00:26:34,080 Speaker 1: someone who engaged in what you would call white collar offense, right, 430 00:26:34,560 --> 00:26:36,639 Speaker 1: that was not an act of violence. She's not a 431 00:26:36,640 --> 00:26:40,879 Speaker 1: fever forfeit the gun rights. The classic example is Martha Stewart. Right, 432 00:26:41,400 --> 00:26:43,399 Speaker 1: Why can't Martha Stewart own a gun? And maybe she 433 00:26:43,440 --> 00:26:45,960 Speaker 1: didn't want to, I don't know, but but her crime 434 00:26:46,000 --> 00:26:50,520 Speaker 1: was was it was not violent, it was white collar. Um. 435 00:26:50,600 --> 00:26:53,680 Speaker 1: In this case, the defendant had engaged in somebody medicare 436 00:26:53,680 --> 00:26:56,000 Speaker 1: for it or medicate fraud, which was a bad act. 437 00:26:56,040 --> 00:26:58,000 Speaker 1: But he did it long ago, he served his time, 438 00:26:58,000 --> 00:27:02,240 Speaker 1: he's repented. Um. Why can't you have a restoration fis 439 00:27:02,240 --> 00:27:05,680 Speaker 1: civil rights? She seemed to talk about a difference between 440 00:27:05,880 --> 00:27:09,040 Speaker 1: that and voting rights. Why shouldn't have fell And then 441 00:27:09,080 --> 00:27:11,720 Speaker 1: if that reasoning holes, then why shouldn't have fell in 442 00:27:12,440 --> 00:27:15,639 Speaker 1: also a non violent felon if you want be able 443 00:27:15,680 --> 00:27:20,200 Speaker 1: to vote? Well, this is a quirk of the Fourteenth Amendments. Um. 444 00:27:20,200 --> 00:27:24,880 Speaker 1: The Fourteenth Amendments specifically recognizes that the rights to book 445 00:27:24,920 --> 00:27:27,760 Speaker 1: can be taken away from Helen's right. The framers of 446 00:27:27,800 --> 00:27:30,560 Speaker 1: the Fourteenth amenent put that in there, thinking that if 447 00:27:30,600 --> 00:27:33,800 Speaker 1: you um U, if you commit a crime, you can 448 00:27:33,840 --> 00:27:37,280 Speaker 1: lose the political right of voting. The rights of their 449 00:27:37,359 --> 00:27:40,560 Speaker 1: arms is different. It's a civil rights um and the 450 00:27:40,600 --> 00:27:44,240 Speaker 1: Second Amendment doesn't suggest that it can be violated deprived 451 00:27:44,240 --> 00:27:48,040 Speaker 1: from from from non violent felons. I think Justice Barrett 452 00:27:48,119 --> 00:27:50,840 Speaker 1: was making observation of how the framers put different language 453 00:27:50,840 --> 00:27:53,760 Speaker 1: in the Second and the Fourteenth Amendment. Looking forward, what 454 00:27:53,840 --> 00:27:56,320 Speaker 1: do you see ahead for the Supreme Court? You know, 455 00:27:56,440 --> 00:27:58,720 Speaker 1: I think that the elephant in the room is what 456 00:27:58,800 --> 00:28:02,199 Speaker 1: happens if Biden wins. We've had nine justices for a 457 00:28:02,200 --> 00:28:05,680 Speaker 1: long time. Do we go to eleven? To go to thirteen? 458 00:28:05,800 --> 00:28:09,159 Speaker 1: Is their court packing? Actual court packing? I think that's 459 00:28:09,200 --> 00:28:12,200 Speaker 1: that's very likely in our in our future. You know, 460 00:28:12,240 --> 00:28:14,120 Speaker 1: if you open up your fortune cookie, you shake your 461 00:28:14,119 --> 00:28:16,879 Speaker 1: magic eight ball? Uh, the court packings in the cards. 462 00:28:17,640 --> 00:28:20,240 Speaker 1: Thanks for being on the Bloomberg Lawn Show. Josh. That's 463 00:28:20,359 --> 00:28:23,520 Speaker 1: Josh Blackman, a professor of constitutional law at the South 464 00:28:23,600 --> 00:28:26,360 Speaker 1: Texas College of Law and that's it for the edition 465 00:28:26,359 --> 00:28:28,880 Speaker 1: of the Bloomberg Lawn Show. Remember you can always get 466 00:28:28,880 --> 00:28:31,760 Speaker 1: the latest legal news on our Bloomberg Law podcasts. You 467 00:28:31,800 --> 00:28:35,000 Speaker 1: can find them on iTunes, SoundCloud, or Bloomberg dot com 468 00:28:35,040 --> 00:28:38,800 Speaker 1: slash podcast Slash Law. I'm June Grosso. Thanks so much 469 00:28:38,840 --> 00:28:41,400 Speaker 1: for listening, and remember to tune to The Bloomberg Lawn 470 00:28:41,400 --> 00:28:43,840 Speaker 1: Show every weeknight at ten pm Eastern right here on 471 00:28:43,920 --> 00:28:46,920 Speaker 1: Joomberg Radio. Than