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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: Marijuana is now legal in twenty four states for recreational

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Speaker 1: purposes and in thirty eight states for medical reasons, but

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Speaker 1: it's still illegal at the federal level. Marijuana is also

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Speaker 1: increasingly popular. A Gallup poll last fall found seventy percent

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Speaker 1: of adult support legalization. That's the highest level yet recorded

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Speaker 1: by the polling firm and more than double the roughly

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Speaker 1: thirty thousand who backed it in two thousand. The White

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Speaker 1: House knows this is an issue that can help win

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Speaker 1: over the support of Americans, especially younger voters, ahead of

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Speaker 1: the election. So in March we saw President Joe Biden

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Speaker 1: praising his marijuana initiative in his State of the Union address.

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Speaker 2: Directly my cabinet to review the federal classification of marijuana,

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Speaker 2: expunding thousands of convictions for the mirror possession because no

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Speaker 2: one should be for simply using for.

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Speaker 1: Have it on their record, and Vice President Kamala Harris

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Speaker 1: hosting a White House meeting to discuss federal marijuana law reform.

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Speaker 2: On the schedule, Currently, marijuana is considered as dangerous as heroin.

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Speaker 2: Marijuana is considered as dangerous as heroin and more dangerous

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Speaker 2: than fentanyl, which is absurd, not to mention patently unfair.

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Speaker 1: Now, the DEA is proposing to shift marijuana from what's

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Speaker 1: known as a Schedule one drug, which includes heroin in LSD,

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Speaker 1: to a less tightly regulated Schedule three drug, which includes

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Speaker 1: ketamine and some anabolic steroids. But what will that rescheduling

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Speaker 1: really change? Joining me is David Posen, a professor at

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Speaker 1: Columbia Law School. His new book is entitled The Constitution

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Speaker 1: of the War on Drugs. David tell us about this

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Speaker 1: rescheduling of marijuana.

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Speaker 3: Yeah, the big news from Latin week was that the

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Speaker 3: Justice Department is now recommending, for the first time ever,

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Speaker 3: that marijuana be rescheduled from Schedule one of the Controlled

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Speaker 3: Substances Act, the most restrictive schedule complete criminal ban at

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Speaker 3: the federal level two Schedule three, which is less restrictive

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Speaker 3: and can allow doctors to prescribe drugs in that schedule.

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Speaker 3: But it's actually going to be a much smaller change

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Speaker 3: in people's lived experiences than I think many hope and expect,

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Speaker 3: because although Schedule three substances can be prescribed by doctors,

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Speaker 3: they can only be prescribed if they're also approved by

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Speaker 3: the FDA, and the FDA has not approved marijuana and

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Speaker 3: isn't likely to do so anytime soon. So we're not

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Speaker 3: actually going to move in the foreseeable future to a

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Speaker 3: medical marijuana regime at the federal level. We're just going

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Speaker 3: to move to a slightly less punitive regime, and the

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Speaker 3: action will continue to take place in the states mainly.

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Speaker 1: So how does this help them?

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Speaker 3: It helps in one very concrete way, which I'll describe

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Speaker 3: in a moment, and then I think it also helps

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Speaker 3: at a cultural level, if you will. So the concrete

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Speaker 3: effect that it will have is there's a provision of

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Speaker 3: the tax Code, section two ade of the Internal Revenue

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Speaker 3: Code that says that businesses that traffic and Schedule one

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Speaker 3: or two substances can't get an ordinary business deduction, so

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Speaker 3: they get penalized in that special way when marijuana is

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Speaker 3: moved over to Schedule three. And I should say that

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Speaker 3: right now it's just a recommendation from the DOJ, but

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Speaker 3: it's almost for sure that that will be accepted in

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Speaker 3: the coming months. So once marijuana is moved to Schedule three,

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Speaker 3: then companies that deal in marijuana and have licenses in

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Speaker 3: their states will no longer get hit by that federal

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Speaker 3: tax penalty. They can take a deduction, So it will

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Speaker 3: be good in a very real material sense for a

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Speaker 3: lot of marijuana companies. This move to Schedule three. That's

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Speaker 3: the biggest legal up shot I think. And then at

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Speaker 3: a cultural level, you know, the Justice Department and the

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Speaker 3: Drug Enforcement Administration which is housed within it has fought

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Speaker 3: marijuana liberalization tooth and nail for decades. So to see

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Speaker 3: the DEA, you know, the heart of the drug control

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Speaker 3: apparatus go along with a move to a less restrictive

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Speaker 3: schedule is a big deal and could presage the ultimate

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Speaker 3: endgame year, which is federal legislation that effectively legalizes marijuana

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Speaker 3: moves it to like an alcohol and tobacco kind of

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Speaker 3: status in the coming years. This, in other words, might

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Speaker 3: be more of a waystation than a final resting point

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Speaker 3: for marijuana regulation.

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Speaker 1: President Biden called for a review of federal marijuana law

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Speaker 1: in October twenty twenty two. Pardon thousands of Americans convicted

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Speaker 1: federally of possessing the drug. I mean, why not go further?

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Speaker 1: Why this intermediate step? It seems like it's well past time.

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Speaker 3: It's an interesting question. Why he's not going further. He

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Speaker 3: has done more than any president really since A Carter

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Speaker 3: to push for marijuana reform. President Carter openly supported decriminalization,

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Speaker 3: and since then, no president has done anything like that.

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Speaker 3: So the fact that President Biden has been willing to

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Speaker 3: issue these mass pardons, he's urged governors to do something

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Speaker 3: similar for simple possession offenses in their states, and now

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Speaker 3: applied pressure on the Justice Department to reschedule marijuana, you know,

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Speaker 3: that puts them in the vanguard of our history of

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Speaker 3: modern executives in their response to marijuana. So I imagine

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Speaker 3: that he's just proceeding incrementally, kind of testing the waters,

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Speaker 3: seeing how his moves are responded to. And I do

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Speaker 3: imagine that if he's reelected, he will he will come

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Speaker 3: out for full legalization at some point. But I can't

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Speaker 3: get into his mind, but I assume he's just trying

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Speaker 3: to be kind of cautious, and maybe he's also betting

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Speaker 3: on the fact that marijuana politics keeps evolving in a

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Speaker 3: pro liberalization direction. The Gallup does polls every year on

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Speaker 3: what people think about legal medical marijuana recreational marijuana. The

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Speaker 3: numbers have been ticking up for years now. So it

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Speaker 3: may also be that he's waiting until it becomes even

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Speaker 3: more popular than the already is.

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Speaker 1: So I assume that because marijuana is used for medical

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Speaker 1: purposes that it was pretty safe as far as these

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Speaker 1: kinds of substances go. But in some research I did

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Speaker 1: for this interview, I found that the American Heart Association

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Speaker 1: issued a warning on the higher risks of cardiovascular events

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Speaker 1: associated with heavy cannabis use. So that was based on

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Speaker 1: a National Institute of Health study that found that daily

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Speaker 1: use of cannabis was associated with a twenty five percent

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Speaker 1: increased likelihood of heart attack and a forty two percent

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Speaker 1: increased likelihood of stroke. Is that part of the reason

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Speaker 1: why they're not WHETHERY not going to or you know,

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Speaker 1: it's sort of something that I don't think most people

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Speaker 1: realize that.

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Speaker 3: I would say a few things. Marijuana is a psychoactive instance.

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Speaker 3: As such, it is not risk free. No drug is,

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Speaker 3: and there's now a very large body of literature on

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Speaker 3: marijuana's effects and it's hard to summarize. But at the

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Speaker 3: same time that they found a number of medical benefits,

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Speaker 3: for example, for treating nausea for cancer patients, there are

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Speaker 3: certainly risks, mainly for adolescents, also pregnant people, people driving,

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Speaker 3: of course, and then smoking. Smoking anything over a long

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Speaker 3: time period isn't great for the body and particularly the lungs,

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Speaker 3: And so I can't speak the specific study you're Referencedick,

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Speaker 3: but I would say it's a mixed bag, and it's

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Speaker 3: not the case that this is a completely benign substance.

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Speaker 3: But at the same time, it's significantly safer than other

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Speaker 3: Schedule one drugs like heroin, not to mention Schedule two

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Speaker 3: drugs like Sentinel and unscheduled drugs like alcohol and nicotine,

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Speaker 3: which it's pretty much any measure safer that. So what

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Speaker 3: do you do with a substance like that that is

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Speaker 3: not the most dangerous any means, but not risk cree.

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Speaker 3: I think there are a lot of strategies to deal

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Speaker 3: with that that really aren't well served by putting it

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Speaker 3: in Schedule one and making it illegal. I think because

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Speaker 3: of course, marijuana is being smoked in huge amounts and

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Speaker 3: was even before legalized at the state level, I think

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Speaker 3: the federal government could be more helpful here in dealing

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Speaker 3: with those public health concerns by helping states crack down

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Speaker 3: on illegal dispensaries that may sell to minors, promoting research

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Speaker 3: and educational programs, putting labeling and potency caps on the

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Speaker 3: sale of marijuana, and taking any number of other measures

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Speaker 3: in a public health framework to kind of limit the

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Speaker 3: downside risks of marijuana, especially for younger people. But that's

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Speaker 3: the different sort of regulatory response than what we're seeing.

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Speaker 3: Moving it from one administrative schedule to another doesn't really

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Speaker 3: address what I think are the real public health concerns

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Speaker 3: here states.

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Speaker 1: Twenty four states have legalized recreational marijuana for adults, and

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Speaker 1: an additional fourteen states allow medical merit WANTA How will

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Speaker 1: this affect those states?

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Speaker 3: What is happening right now with the rescheduling of marijuana

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Speaker 3: will do little. Really. The states that have legalized marijuana

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Speaker 3: in any form have already gone beyond where the federal

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Speaker 3: government is going to end up, and so they will

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Speaker 3: continue to be acting inconsistently with federal law. Congress and

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Speaker 3: the Justice Department have basically agreed to look the other

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Speaker 3: way on legal marijuana business in all those jurisdictions, but

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Speaker 3: that's going to stay in the same precarious equilibrium where

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Speaker 3: it is now, and still marijuana companies are going to

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Speaker 3: operate in the shadow of criminal sanction with limited access

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Speaker 3: to banking services, intellectual property protection, contract enforcement, and all

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Speaker 3: the other standard corporate law privileges that legit companies get.

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Speaker 3: So they're not going to be fully satisfied with this,

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Speaker 3: notwithstanding the tax break. So I guess another thing to

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Speaker 3: highlight about what's happening here is we will continue to

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Speaker 3: have incoherent regulatory response to marijuana across the state and

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Speaker 3: federal levels even after its reschedule.

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Speaker 1: Do you think in this I guess is along with

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Speaker 1: the cultural changes, do you think that having this federal

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Speaker 1: change will help in states where there are ballot measures

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Speaker 1: seeking to legalize marijuana?

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Speaker 3: Interesting there, if it helped, I think it will be

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Speaker 3: in a kind of atmospheric manner, which is to say,

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Speaker 3: getting the imprimature of the Justice Department and the DEA

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Speaker 3: that marijuana really hasn't been as dangerous as you've been

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Speaker 3: told and deserves to be moved down to schedules. Maybe

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Speaker 3: we'll trickle down to state politics and help people at

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Speaker 3: the margins feel a little more comfortable with moving toward legalization,

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Speaker 3: realizing that some of what they've heard about marijuana's dangerous

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Speaker 3: has been overhyped. I don't know how much you know

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Speaker 3: ordinary voters actually pay attention to these rescheduled decisions or

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Speaker 3: what they make of it. But that would be the mechani,

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Speaker 3: I think, a cultural one. There's no direct bearing on

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Speaker 3: the ballot measures.

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Speaker 1: Does this pose any problem for our international treaty obligations

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Speaker 1: and the Convention on Narcotic Drugs? Is that a problem

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Speaker 1: that was cited during the Obama administration that requires the

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Speaker 1: criminalization of cannabis.

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Speaker 3: There's a debate on that issue. I don't think it's

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Speaker 3: right that those conventions need to be read to criminalize

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Speaker 3: even personal possession and use of marijuana, but they do

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Speaker 3: seem to forbid having a fully legal market where it

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Speaker 3: can be sold lawfully in countries that have signed those treaties,

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Speaker 3: And so as we move toward legalization, not just rescheduling,

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Speaker 3: we're going to run into those treaties. But actually we

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Speaker 3: already passed that point, the fact that all of these

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Speaker 3: states in the US have legalized marijuana on their own.

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Speaker 3: The International Narcotics Control Board that administers the UN Drug

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Speaker 3: treaties says that we're already in violation. That it doesn't

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Speaker 3: matter that they're subnational units, you're still responsible for them.

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Speaker 3: So We're already operating on what the treaty administrators consider

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Speaker 3: a breach, and so are other countries. Canada just openly

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Speaker 3: announced that it is in violation of these treaties by

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Speaker 3: legalizing marijuana. Germany is about to legalize marijuana, and a

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Speaker 3: lot of other countries through their court have effectively decriminalized

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Speaker 3: marijuana as well. So we're increasingly moving to a bipolar world,

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Speaker 3: I think on drug policy, where liberal democracies, through their

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Speaker 3: legislatures and courts, are increasingly decriminalizing, if not fully legalizing,

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Speaker 3: marijuana and also some psychedelics. Other countries in the UN regime,

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Speaker 3: like China, Russia, a bunch of countries in the Middle

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Speaker 3: East and Africa, are absolutely not legalizing their drug policies.

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Speaker 3: In fact, they're doubling down on the severity. So it's

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Speaker 3: going to be very unstable and very unclear where it

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Speaker 3: heads in the coming years at the international level.

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Speaker 1: On drug policy, you wrote a piece for Time magazine

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Speaker 1: that American drug policy has been characterized by cycles of

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Speaker 1: racialized moral panic and reactionary legislation punctuated by periods of liberalization.

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Speaker 1: Can you give us a short history.

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Speaker 3: I'll try. We get the first big wave of prohibitory

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Speaker 3: drug laws in the early nineteen hundreds around opium, cocaine, marijuana, alcohol,

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Speaker 3: and there was a strong racial life dimension to a

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Speaker 3: lot of those laws, and specific drugs were associated with

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Speaker 3: specific racial groups which were then demonized. And then that

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Speaker 3: pattern repeats itself with slight variations as the twentieth century

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Speaker 3: goes on. So, for example, penalties against heroin are increased

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Speaker 3: drastically in the nineteen fifties at a time when heroin

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Speaker 3: was associated with Black Americans and other racial minorities. And

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Speaker 3: then we have, of course, in the nineteen eightase, the

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Speaker 3: panic around cracked cocaine also had an obvious racial dimension.

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Speaker 3: And then in periods where we've had liberalization, there's often

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Speaker 3: been what you might call a widening of the drugs

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Speaker 3: racial valance. So marijuana, for example, when medical marijuana starts

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Speaker 3: to take off in the late nineteen nineties and early

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Speaker 3: two thousands, is depicted, as you know, kind of associated

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Speaker 3: with AIDS patients, HIV AIDS patients, and is pushed by

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Speaker 3: kind of older white Americans who change the complexion, if

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Speaker 3: you will, of how marijuana is perceived in the response

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Speaker 3: of the opioid crisis that we've been having that has

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Speaker 3: also has affected many white Americans, and some people suggest

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Speaker 3: that has led to a more liberal response. Not a

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Speaker 3: very crisp answer, just to say that we've had a

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Speaker 3: number of periods of extremely harsh legislation against drugs. It's

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Speaker 3: a moral panic and often also a racial panic when

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Speaker 3: that happens. But then we kind of reaquilibrate and cool off.

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Speaker 3: And there are these moments like in the nineteen seventies,

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Speaker 3: which my book focuses on, where humane, evidence based drug

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Speaker 3: reform is possible again. And it's hard to characterize the

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Speaker 3: present moment. There's already been a backlash against what oregans ride,

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Speaker 3: but we may be in a moment of liberal possibility again.

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Speaker 3: And there the suggestion the book makes is that constitutional

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Speaker 3: law can help entrench policy gains when they're won, and

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Speaker 3: it can't solve most of our drug problems, but it

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Speaker 3: might be able to prevent against future backsliding if we

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Speaker 3: move to extremely punitive responses in the future.

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Speaker 1: What's the next step in the regulatory process if.

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Speaker 3: We're talking about marijuana rescheduling, Yeah, that's going to move

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Speaker 3: over to the White House. Effectively, the Office of Management

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Speaker 3: and Budget will review the proposed rescheduling, and given that

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Speaker 3: the Department of Health and Human Services, the Drug Enforcement Administration,

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Speaker 3: and the Justice Department itself have now all lined up

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Speaker 3: in favor of rescheduling, I would be shocked if the

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Speaker 3: White House pulled back on that. So I think what

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Speaker 3: we'll see is we'll have a notice in comment period

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Speaker 3: where the members of the public can submit their views

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Speaker 3: on this proposed rescheduling, and I assume lots of people

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Speaker 3: will and then I expected to go forward and become

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Speaker 3: law sometime in the coming months.

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Speaker 1: I mean, so, the Senate has introduced legislation to legalized

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Speaker 1: cannabis on the federal level. I think it was a

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Speaker 1: bill originally introduced in twenty twenty two. I don't know

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Speaker 1: if it's exactly the same. That's unlikely to get passed

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Speaker 1: with this Congress. How does that fit in with the

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Speaker 1: scheduling of marijuana.

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Speaker 3: So right now, it's still going to be a scheduled

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Speaker 3: drug under the Controlled Substance Act, and the big change

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Speaker 3: that could happen that would require congressional legislation, not just

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Speaker 3: this administrative move within the executive branch, would be moving

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Speaker 3: it out of the Controlled Subsians Act altogether. In other words,

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Speaker 3: not just rescheduling, but descheduling marijuana. And then it would

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Speaker 3: be treated I assume, on the model of alcohol and tobacco,

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Speaker 3: which is to say, there would still be age minimums,

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Speaker 3: there would still be taxes. It could be control through

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Speaker 3: zoning and licensing, you know, and it would by no

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Speaker 3: means be you know, total less a fair everyone gets

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Speaker 3: to buy their pot. But it would be like an

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Speaker 3: alcohol tobacco model that has already passed the House. And

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Speaker 3: as you suggest, the hangout is in the Senate. I

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Speaker 3: have no crystal ball to what's going on in the Senate,

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Speaker 3: but I do see the polling numbers, and it seems

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Speaker 3: to me that sooner than later, we'll reach a point

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Speaker 3: where it's going to be hard for senators to hold

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Speaker 3: out much longer. Barring some major, you know, cultural shift,

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Speaker 3: we are heading to a place where marijuana will get legalized,

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Speaker 3: who knows in the coming decade.

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Speaker 1: Let's say, and tell us a little about your book.

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Speaker 3: The book is a history of how people have fought

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Speaker 3: punitive drug laws on constitutional grounds throughout US history and

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Speaker 3: had surprising success in doing that, raising arguments about privacy, liberty,

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Speaker 3: freedom from cruel, unusual punishment, free speech, and so on,

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Speaker 3: and so it's not really about scheduling decisions so much

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Speaker 3: as constitutional law and how people made rights claims about

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Speaker 3: drugs that actually got taken very seriously in prior generations

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Speaker 3: and have fallen out of the conversation.

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Speaker 1: And the title of the book again is the Constitution

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Speaker 1: of the War on Drugs. Thanks so much, David for

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Speaker 1: being on the show. That's Professor David Posen of Columbia

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Speaker 1: Law School. Turning down to the Supreme Court. We've heard

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Speaker 1: a lot in the last few years about the shadow

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Speaker 1: or emergency docket of the Supreme Court. Well, now it

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Speaker 1: appears that the US Solicitor General is complaining about it,

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Speaker 1: or at least its effect on her office. Joining me

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Speaker 1: is Bloomberg Law. Supreme Court reporter Kimberly Strawbridge Robinson. Kim

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Speaker 1: tell us how the shadow docket has grown in recent years,

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Speaker 1: both in size and in importance.

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Speaker 4: Sure, so, the shadow docket has always been around, you know,

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Speaker 4: it deals with certain emergencies, and there's always been emergencies

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Speaker 4: for the Supreme Court to deal with, but usually up

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Speaker 4: until about a decade ago, it was mostly just death

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Speaker 4: penalty cases, you know, where the Supreme Court had to

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Speaker 4: step in right away because there was an execution that

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Speaker 4: was about to take place. So what we've seen though

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Speaker 4: over the last decade is, as you said June, that

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Speaker 4: it's really been growing and the kinds of cases that

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Speaker 4: we see on it are no longer just death penalty cases,

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Speaker 4: but often very significant policy questions for my their state

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Speaker 4: or federal governments. And we saw it really peak in

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Speaker 4: the pandemic, which may be expected. Of course, there were

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Speaker 4: all these you know, new and novel ways that states

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Speaker 4: are trying to deal with the coronavirus, and you know,

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Speaker 4: those are being challenged in courts and making their way

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Speaker 4: to the Supreme Court. But you know, as that pandemic

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Speaker 4: has sort of gone away, we haven't really seen the

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Speaker 4: shadow docket cases go away. And so now you know,

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Speaker 4: every term there are a number of very significant cases

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Speaker 4: that work their way up through this very expedited procedure

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Speaker 4: on the court, and it's just taking up more and

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Speaker 4: more of the court time and more of the lawyer's time.

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Speaker 1: Well, this term, one of the biggest cases of the

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Speaker 1: term was on the shadow docket, the Colorado ballot case.

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Speaker 4: That's right, you know, I've been covering the court now

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Speaker 4: for more than a dozen years, and you know, for

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Speaker 4: the first half of that it was very unlikely that

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Speaker 4: we'd get a case that you know, was sort of

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Speaker 4: taken off the emergency docket and given full briefing and hearing. Now,

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Speaker 4: you know, not only is it that case, but we

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Speaker 4: have four other cases, including you know, a challenge to

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Speaker 4: Idaho's abortion band and so you know, we see it

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Speaker 4: through taking up more and more oxygen in the room

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Speaker 4: in these cases that you know, come up in a

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Speaker 4: very quick and expedited fashion and often aren't given the

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Speaker 4: same kind of time to work their way through the

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Speaker 4: legal system that we traditionally think of.

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Speaker 1: And it was really interesting the Solicitor General, who represents

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Speaker 1: the United States before the Supreme Court when the federal

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Speaker 1: government is a party, she said, it's one of the

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Speaker 1: biggest shifts in the Court's work, and it's changed the

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Speaker 1: function of line attorneys at our office.

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Speaker 4: Yeah, you know, she said, you know, before being the

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Speaker 4: Solicitor General, it's it's an appellate gig and so things

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Speaker 4: sort of have a natural life of you know, a

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Speaker 4: timeline that they operate on, and now you know, things

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Speaker 4: can move much more quickly on the emergency docket. And

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Speaker 4: she meets people who can, you know, not spend months

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Speaker 4: writing a brief, but you know, sometimes a week or

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Speaker 4: two writing a brief on a very significant thing from

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Speaker 4: you know, Colorado ballot to Idaho a portion to you know,

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Speaker 4: name anything that's especially important, and it seems to find

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Speaker 4: its way up to the Supreme Court. So, yeah, it's

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Speaker 4: not only changing work for the justices, but it's changing

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Speaker 4: the work for the people who who operate before.

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Speaker 1: It is the Biden administration partially responsible because, like the

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Speaker 1: Trump administration, it's bringing more cases to the shadow docket.

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Speaker 4: Well, that is true that a big number of these

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Speaker 4: cases are cases brought by the federal government, whether it

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Speaker 4: be under Biden or under Trump. But you know, West,

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Speaker 4: their General pre lover said that that really not anything

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Speaker 4: that the Biden administration can do about it. If the

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Speaker 4: lower court is going to put a federal law on hold,

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Speaker 4: particularly if it's going to put it on hold for

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Speaker 4: the entire nation, it's not something that the Biden administration

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Speaker 4: can say, Okay, well we'll wait and see, you know,

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Speaker 4: two three years from now, what we can do about it.

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Speaker 4: That's something they're going to go to the justices and

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Speaker 4: ask for help. Right now, She.

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Speaker 1: Said that the case is unfold at a rapid fire

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Speaker 1: pace and put the Court in a position of making

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Speaker 1: high stakes decisions with incomplete information.

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Speaker 4: Yeah, I mean, I think we've talked about it a

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Speaker 4: couple of times, but that Colorado ballot cases is a

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Speaker 4: really good example of that. You know, this was a

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Speaker 4: case that had been to trial, worked through a trial,

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Speaker 4: but then sort of got an expedited passed up to

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Speaker 4: the Supreme Court. And you know, within a matter of months,

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Speaker 4: the justices are not only having this case come to them,

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Speaker 4: but they had arguments, they had to write an opinion

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Speaker 4: about an area below where there really wasn't any on

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Speaker 4: and before it's something you know that they kind of

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Speaker 4: had to start fresh with and on a very expedited timeline.

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Speaker 4: And of course these things bet are a lot things

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Speaker 4: like you know, the Trump ballot case, Idaho abortion and

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Speaker 4: other things that we're seeing coming up through the shadow dockets.

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Speaker 1: So also on this ABA panel discussion was former Solicitor

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Speaker 1: General Paul Clement, and he said it's partially the Court's

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Speaker 1: own fault.

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Speaker 4: Well, I think what he meant by it was that

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Speaker 4: the Court has been agreeing to take up a lot

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Speaker 4: of these cases and so if they're asked over and

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Speaker 4: over and over again to intervene, and the answers always

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Speaker 4: know we're going to let the lower courts do what

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Speaker 4: they do and wait for them to act. Well, then

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Speaker 4: people probably wouldn't feel, you know, the urge to ask

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Speaker 4: this through court. But because they do grant number of

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Speaker 4: these shadow docket requests, I think comment saying that they

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Speaker 4: they start of bringing on themselves. You know, the court

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Speaker 4: itself is sensitive to these comments. And you know, unusually

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Speaker 4: we saw in a shadow docket order, we saw a

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Speaker 4: number of opinions on this and how justices seem to

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Speaker 4: feel about this idea that they've brought this on themselves.

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Speaker 1: I hadn't heard this before. You quote Justice Sonya Socha

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Speaker 1: Mayors says she's working harder than I ever had.

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Speaker 4: Yeah, she said in January that the shadow docket you know,

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Speaker 4: just the number and the sure weight of the consequences

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Speaker 4: of them, you know, she said, look, I'm almost seventy.

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Speaker 4: I never thought i'd be working as hard. And she

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Speaker 4: said I'm tired, so me too. But she may have

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Speaker 4: a better reason than I do.

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Speaker 1: We're also tired waiting for all these decisions and coming

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Speaker 1: up we're going to talk about them. I'm June Grosso

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Speaker 1: and you're listening to Bloomberg. I mean, the decisions in

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Speaker 1: most of the controversial cases are yet to be handed down.

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Speaker 1: Cases involving, for example, abortion, guns, elections, and agency power.

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Speaker 1: The oral argument sessions are over, and we've been waiting

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Speaker 1: for some of these decisions for a while, some not

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Speaker 1: so long. First, the case is having to do with

435
00:25:17,400 --> 00:25:21,600
Speaker 1: Trump and the presidential immunity case that they set for

436
00:25:21,640 --> 00:25:24,800
Speaker 1: the last day of oral arguments. Do they add a

437
00:25:24,880 --> 00:25:26,240
Speaker 1: day to the calendar for that?

438
00:25:26,280 --> 00:25:28,720
Speaker 4: They did, Yeah, they added a day for that. That

439
00:25:28,840 --> 00:25:30,720
Speaker 4: was the last argument that they heard. And now they're

440
00:25:30,720 --> 00:25:33,400
Speaker 4: turning to try to get out all of these opinions,

441
00:25:33,600 --> 00:25:36,240
Speaker 4: which they have more than three dozen. And you're hinting

442
00:25:36,240 --> 00:25:38,840
Speaker 4: at the immunity case. But this year's docket was just

443
00:25:38,920 --> 00:25:43,480
Speaker 4: so full of blockbuster cases that could have these potentially

444
00:25:43,560 --> 00:25:44,840
Speaker 4: huge impacts.

445
00:25:45,119 --> 00:25:48,720
Speaker 1: Really and so there are I think two that affect

446
00:25:49,040 --> 00:25:53,240
Speaker 1: former President Trump. There's the presidential immunity case and also

447
00:25:53,280 --> 00:25:55,320
Speaker 1: the case over the obstructions charged.

448
00:25:55,760 --> 00:25:58,520
Speaker 4: That's right, and that's you know, not a case that

449
00:25:58,720 --> 00:26:03,080
Speaker 4: personally involves the former president, but it could possibly affect

450
00:26:03,280 --> 00:26:05,480
Speaker 4: some of the charges that have been brought against him,

451
00:26:05,480 --> 00:26:09,159
Speaker 4: and in particular, you know, it's whether or not prosecutors

452
00:26:09,240 --> 00:26:13,080
Speaker 4: just got too creative and went too far in charging

453
00:26:13,720 --> 00:26:17,280
Speaker 4: this obstruction charge, which carries, you know, a pretty hefty

454
00:26:17,400 --> 00:26:20,240
Speaker 4: twenty year sentence. We haven't seen anybody yet that much

455
00:26:20,280 --> 00:26:22,359
Speaker 4: time for this yet, but you know, it's just the

456
00:26:22,440 --> 00:26:25,480
Speaker 4: idea of being able to use a charge like that,

457
00:26:25,640 --> 00:26:27,560
Speaker 4: whether or not it's appropriate, or whether or not they're

458
00:26:27,600 --> 00:26:30,240
Speaker 4: sort of bringing more to bear than what the statute

459
00:26:30,240 --> 00:26:30,720
Speaker 4: can handle.

460
00:26:30,880 --> 00:26:34,520
Speaker 1: And then there are two abortion cases, one over the

461
00:26:34,640 --> 00:26:40,480
Speaker 1: pill mithipristone and then Idaho, which you mentioned the Idaho ban, right.

462
00:26:40,480 --> 00:26:43,520
Speaker 4: You know, the mythic Pristone case really seems like one

463
00:26:43,520 --> 00:26:46,240
Speaker 4: that might actually just sort of go away. A lot

464
00:26:46,240 --> 00:26:49,119
Speaker 4: of the justices seem to think that the parties who

465
00:26:49,160 --> 00:26:51,280
Speaker 4: had brought the case weren't the proper people to really

466
00:26:51,280 --> 00:26:54,200
Speaker 4: be challenging this kind of law, so it may sort

467
00:26:54,240 --> 00:26:57,159
Speaker 4: of get tossed on, you know, a technical ground. But

468
00:26:57,680 --> 00:27:00,600
Speaker 4: you know, the Idaho case seems like the justices are

469
00:27:00,640 --> 00:27:04,040
Speaker 4: really divided on the merits of that dispute, and you

470
00:27:04,040 --> 00:27:05,919
Speaker 4: know it's going to be really significant because it's the

471
00:27:06,000 --> 00:27:10,200
Speaker 4: first abortion state law, a state ban that the justices

472
00:27:10,240 --> 00:27:14,400
Speaker 4: are considering since they overturned the right to federal constitutionally

473
00:27:14,440 --> 00:27:17,600
Speaker 4: protected right to an abortion. So I mean very significant

474
00:27:17,640 --> 00:27:19,919
Speaker 4: for what it will mean going forward and what states

475
00:27:19,960 --> 00:27:20,439
Speaker 4: can do.

476
00:27:20,640 --> 00:27:22,600
Speaker 1: And what about Second Amendment cases?

477
00:27:23,680 --> 00:27:26,439
Speaker 4: That's right, So we heard sometimes I forget that some

478
00:27:26,480 --> 00:27:27,840
Speaker 4: of these cases happen very.

479
00:27:27,720 --> 00:27:32,080
Speaker 1: Exact, and I sometimes think, well, was that this term

480
00:27:32,200 --> 00:27:33,080
Speaker 1: was that last term?

481
00:27:33,440 --> 00:27:36,240
Speaker 4: But there are a couple of significant Second Amendment cases.

482
00:27:36,560 --> 00:27:39,480
Speaker 4: Early in the term, they heard a case called Rakhini,

483
00:27:39,480 --> 00:27:42,480
Speaker 4: which was about whether the federal government can limit gun

484
00:27:42,560 --> 00:27:46,320
Speaker 4: possession by those who are subject to a domestic violence

485
00:27:46,320 --> 00:27:49,360
Speaker 4: restraining order. You know, the justices seemed like they were

486
00:27:49,359 --> 00:27:52,320
Speaker 4: going to okay the federal law there, but there's probably

487
00:27:52,760 --> 00:27:56,399
Speaker 4: more that they're writing about, you know, upcoming challenges, so

488
00:27:56,640 --> 00:27:58,120
Speaker 4: you know, we'll see what they have to say about

489
00:27:58,160 --> 00:28:00,920
Speaker 4: that one. And then there's another one on stocks and

490
00:28:01,040 --> 00:28:04,960
Speaker 4: whether or not the administration could define bump stocks as

491
00:28:05,040 --> 00:28:07,520
Speaker 4: machine guns and therefore ban them. So a couple of

492
00:28:07,600 --> 00:28:10,000
Speaker 4: really significant Second amic cases as well.

493
00:28:10,080 --> 00:28:13,520
Speaker 1: So I forgot the bump stock one. You know, it's

494
00:28:13,560 --> 00:28:16,960
Speaker 1: a long term and the decisions are so slow to

495
00:28:17,000 --> 00:28:21,000
Speaker 1: come out as far as elections and congressional maps. Is

496
00:28:21,040 --> 00:28:24,440
Speaker 1: it just the South Carolina case about racial.

497
00:28:24,160 --> 00:28:28,080
Speaker 4: Genreat It is right now, just the South Carolina case

498
00:28:28,160 --> 00:28:31,119
Speaker 4: that's depending before the Justices. I think, you know, we

499
00:28:31,160 --> 00:28:33,439
Speaker 4: started on the kind of the conversation though about the

500
00:28:33,560 --> 00:28:36,639
Speaker 4: shadow docket, and as we're coming up on, you know

501
00:28:36,680 --> 00:28:39,600
Speaker 4: what is not just an election, but a pretty contentious

502
00:28:39,640 --> 00:28:42,880
Speaker 4: presidential election. I suspect that we'll see a lot of

503
00:28:42,880 --> 00:28:46,480
Speaker 4: shadow docket cases on elections, whether they be state elections

504
00:28:46,560 --> 00:28:48,520
Speaker 4: or federal elections. But I'm sure they're going to be

505
00:28:48,560 --> 00:28:50,040
Speaker 4: working their way to the court.

506
00:28:50,240 --> 00:28:53,640
Speaker 1: So now we have a case involving the Chevron doctrine,

507
00:28:53,680 --> 00:28:55,920
Speaker 1: which we love to talk about. I don't know if

508
00:28:55,960 --> 00:28:59,040
Speaker 1: people love to hear about it, a legal doctrine that

509
00:28:59,160 --> 00:29:04,160
Speaker 1: gives federal agencies wide birth to interpret unclear laws. And

510
00:29:04,240 --> 00:29:09,600
Speaker 1: it's about a National Marine Fishery Service requirement. It's about fish.

511
00:29:09,720 --> 00:29:12,240
Speaker 4: Well, you know, the two cases that are in front

512
00:29:12,280 --> 00:29:15,040
Speaker 4: of the Justice do involve fish. But you know, I'm

513
00:29:15,040 --> 00:29:17,320
Speaker 4: not exaggerating here when I say that these cases have

514
00:29:17,400 --> 00:29:20,720
Speaker 4: the potential to touch nearly every aspect of American life

515
00:29:20,760 --> 00:29:25,280
Speaker 4: because administrative law and federal agencies do so much, and

516
00:29:25,320 --> 00:29:28,760
Speaker 4: it's willing to have the you know, the potential to

517
00:29:28,880 --> 00:29:32,479
Speaker 4: sort of change how those decisions get made. And in

518
00:29:32,520 --> 00:29:35,760
Speaker 4: particular it's whether or not sort of court should have

519
00:29:35,960 --> 00:29:39,360
Speaker 4: the final say on what an unclear statute means, or

520
00:29:39,360 --> 00:29:42,600
Speaker 4: whether or not it should be expert agencies, and you

521
00:29:42,640 --> 00:29:46,120
Speaker 4: know the justices during arguments who are very split on

522
00:29:46,600 --> 00:29:48,600
Speaker 4: not only you know, what they should do going forward,

523
00:29:48,640 --> 00:29:51,840
Speaker 4: but what the doctor even means and it's supposed to do.

524
00:29:52,000 --> 00:29:54,280
Speaker 4: So that's one that I'm guessing is going to take

525
00:29:54,280 --> 00:29:56,080
Speaker 4: a long time for them to get out, but we're

526
00:29:56,080 --> 00:29:59,040
Speaker 4: eagerly watching, just given the impact that it could have.

527
00:29:59,560 --> 00:30:02,960
Speaker 1: To completely do away with the doctrine would cause so

528
00:30:03,080 --> 00:30:06,240
Speaker 1: much upheaval, and you know, some of the justices have

529
00:30:06,320 --> 00:30:08,960
Speaker 1: been angling at that for years, but there are so

530
00:30:09,120 --> 00:30:12,960
Speaker 1: many consequential cases this term it might be a bad

531
00:30:13,000 --> 00:30:16,680
Speaker 1: idea to do that as well. We'll see. So then,

532
00:30:17,120 --> 00:30:21,840
Speaker 1: involving agency power, the Securities and Exchange Commission's use of

533
00:30:21,880 --> 00:30:23,440
Speaker 1: in house judges.

534
00:30:23,520 --> 00:30:26,440
Speaker 4: There really have been a lot of these agency decisions

535
00:30:26,800 --> 00:30:30,560
Speaker 4: where the Roberts Court, particularly with the three Trump appointees,

536
00:30:30,600 --> 00:30:33,600
Speaker 4: have sort of been nipping and tucking at agencies and

537
00:30:33,680 --> 00:30:35,520
Speaker 4: what they can do and how they can operate and

538
00:30:35,560 --> 00:30:38,640
Speaker 4: how they interact with the regulated public. This is another

539
00:30:38,680 --> 00:30:42,000
Speaker 4: one of those cases which could do away with, or

540
00:30:42,040 --> 00:30:44,480
Speaker 4: at least change from dramatically the way that you know,

541
00:30:44,600 --> 00:30:47,760
Speaker 4: these in house judges work for the SEC and you know,

542
00:30:47,840 --> 00:30:51,360
Speaker 4: potentially other agencies. So it's another one we're watching. It's

543
00:30:51,360 --> 00:30:53,840
Speaker 4: another one that in any other term would be, you know,

544
00:30:54,080 --> 00:30:56,000
Speaker 4: one of the first cases we talk about, but in

545
00:30:56,000 --> 00:30:58,080
Speaker 4: this term we talk about it much later.

546
00:30:58,360 --> 00:31:00,680
Speaker 1: Will we put the case about the consider or Financial

547
00:31:00,680 --> 00:31:03,760
Speaker 1: Protection Bureau in the same category or a different category?

548
00:31:04,000 --> 00:31:07,000
Speaker 4: Yeah, I think that that one, you know, goes along

549
00:31:07,120 --> 00:31:09,920
Speaker 4: with the SEC case, along with the Chevron docs that

550
00:31:09,960 --> 00:31:12,760
Speaker 4: we've been talking about. You know, that one is about

551
00:31:12,760 --> 00:31:16,239
Speaker 4: the funding mechanism for this TSPV and whether or not

552
00:31:16,320 --> 00:31:19,160
Speaker 4: Congress got a little too creative when it tried to

553
00:31:19,200 --> 00:31:23,440
Speaker 4: sort of keep that agency independent. Again, it's another one,

554
00:31:23,600 --> 00:31:25,920
Speaker 4: you know that was argued very early, but where we

555
00:31:25,960 --> 00:31:29,680
Speaker 4: see the Justice is really divided about what Congress's powers are,

556
00:31:30,000 --> 00:31:33,320
Speaker 4: what the executive's power is through agencies and sort of accountability.

557
00:31:33,400 --> 00:31:37,240
Speaker 4: So these sort of fundamental ideas that the justices are debating,

558
00:31:37,280 --> 00:31:39,160
Speaker 4: and you know that one was arguing in October. We

559
00:31:39,200 --> 00:31:42,120
Speaker 4: still don't have an opinion, so says that they're having

560
00:31:42,200 --> 00:31:43,680
Speaker 4: a pretty fierce debate about it.

561
00:31:43,760 --> 00:31:48,320
Speaker 1: Was it two cases on social media content, one from

562
00:31:48,400 --> 00:31:49,920
Speaker 1: Texas and one from Florida.

563
00:31:50,400 --> 00:31:53,560
Speaker 4: There are actually a lot of social media cases this term,

564
00:31:53,560 --> 00:31:58,280
Speaker 4: but there were those pair of social media cases talking

565
00:31:58,280 --> 00:32:02,960
Speaker 4: about really what states can due to these social media companies,

566
00:32:03,000 --> 00:32:06,520
Speaker 4: who of course are not governments and are so really

567
00:32:06,560 --> 00:32:09,760
Speaker 4: not subject to the First Amendment, whether or not, you know,

568
00:32:10,040 --> 00:32:12,480
Speaker 4: states can sort of tell them how to run their

569
00:32:12,480 --> 00:32:15,120
Speaker 4: business or whether or not, you know, they get to decide.

570
00:32:15,200 --> 00:32:18,400
Speaker 4: So those are two again out of Florida and Texas,

571
00:32:18,440 --> 00:32:20,760
Speaker 4: that were closely watching. But there's some other social media

572
00:32:20,880 --> 00:32:23,760
Speaker 4: cases that have been decided about, you know, sort of

573
00:32:23,800 --> 00:32:28,240
Speaker 4: how First Amendment works when it's the company kicking people

574
00:32:28,240 --> 00:32:31,400
Speaker 4: off of the platform rather than a government. And there's

575
00:32:31,520 --> 00:32:34,520
Speaker 4: another social media case involving the Biden administration sort of

576
00:32:34,560 --> 00:32:37,200
Speaker 4: efforts that it took to counter what it's saw as

577
00:32:37,320 --> 00:32:40,760
Speaker 4: misinformation online. And so a lot of stuff about social

578
00:32:40,880 --> 00:32:44,200
Speaker 4: media seems like the Supreme Court's finally moving into the

579
00:32:45,240 --> 00:32:46,320
Speaker 4: twenty first century.

580
00:32:46,440 --> 00:32:48,960
Speaker 1: Yeah, it used to be that they were very confused

581
00:32:49,040 --> 00:32:51,760
Speaker 1: when things about social media came up, and now I

582
00:32:51,800 --> 00:32:55,560
Speaker 1: guess they're used to it. There's that historic the Purdue

583
00:32:55,680 --> 00:32:59,840
Speaker 1: Form of bankruptcy settlement. That's a really casey.

584
00:33:00,080 --> 00:33:03,480
Speaker 4: Yeah, you know, this is a multi billion dollar settlement

585
00:33:03,720 --> 00:33:07,800
Speaker 4: over Purdue and it drugs and whether or not it

586
00:33:07,880 --> 00:33:10,840
Speaker 4: was responsible for a lot of the problems that we're

587
00:33:10,840 --> 00:33:14,520
Speaker 4: seeing now with narcotics and addiction in the country. And

588
00:33:15,160 --> 00:33:17,880
Speaker 4: you know, this case is really interesting because it's not

589
00:33:17,960 --> 00:33:21,680
Speaker 4: the parties that are really objecting to the settlement, but

590
00:33:21,840 --> 00:33:24,560
Speaker 4: it's the federal government. And the question is, well, does

591
00:33:24,600 --> 00:33:27,080
Speaker 4: the federal government get to say, you know, whether or

592
00:33:27,080 --> 00:33:29,720
Speaker 4: not this settlement can go through or it's sort of

593
00:33:29,800 --> 00:33:33,280
Speaker 4: just more of a quiet party. So we'll see again

594
00:33:33,320 --> 00:33:36,880
Speaker 4: that argued a few months ago, so we could get

595
00:33:36,880 --> 00:33:39,080
Speaker 4: an opinion. But again, I think just given the stakes,

596
00:33:39,120 --> 00:33:40,560
Speaker 4: it's going to take them a while to sort of

597
00:33:40,560 --> 00:33:42,080
Speaker 4: sort out what they want to say there.

598
00:33:43,640 --> 00:33:48,880
Speaker 1: They have been really slow, handing down decisions only eighteen

599
00:33:49,600 --> 00:33:51,880
Speaker 1: of the sixty two cases they've heard.

600
00:33:52,720 --> 00:33:55,440
Speaker 4: You know, I mean, they're getting slower and slower. So

601
00:33:55,480 --> 00:33:57,760
Speaker 4: this year isn't out of step with some of the

602
00:33:57,800 --> 00:34:00,960
Speaker 4: other terms, but you know, these work back like ten

603
00:34:01,040 --> 00:34:03,920
Speaker 4: years ago, Yester, it seems slow, but they're pretty much

604
00:34:03,920 --> 00:34:06,640
Speaker 4: on target, and they'll just flooed us the last two

605
00:34:06,680 --> 00:34:09,799
Speaker 4: weeks of June with every important decision ever made.

606
00:34:10,120 --> 00:34:13,880
Speaker 1: As they always do, they drop all the major decisions

607
00:34:13,880 --> 00:34:17,800
Speaker 1: and then go on vacation. Thanks so much for that rundown, Kimberly,

608
00:34:18,200 --> 00:34:22,840
Speaker 1: that's Bloomberg Law. Supreme Court reporter Kimberly Strawbridge Robinson. In

609
00:34:22,920 --> 00:34:26,560
Speaker 1: other legal news today, in Donald Trump's hush money trial,

610
00:34:26,960 --> 00:34:30,400
Speaker 1: Judge Jan Mrshan ruled for a second time that Trump

611
00:34:30,480 --> 00:34:33,920
Speaker 1: was in contempt of court for violating a gag order.

612
00:34:34,160 --> 00:34:37,080
Speaker 1: He finds him one thousand dollars and warned that he

613
00:34:37,160 --> 00:34:40,560
Speaker 1: could jail him for further violations of the order, which

614
00:34:40,600 --> 00:34:44,800
Speaker 1: is intended to protect witnesses as well as jurors. Former

615
00:34:44,840 --> 00:34:48,480
Speaker 1: Controller Jeffrey mcconnie was on the witness stand today, offering

616
00:34:48,600 --> 00:34:53,160
Speaker 1: jurors their first detailed look at how Trump reimbursed Michael Cohen,

617
00:34:53,280 --> 00:34:56,840
Speaker 1: his one time lawyer. Trump used a personal bank account

618
00:34:56,880 --> 00:34:59,600
Speaker 1: to repay most of the money he owed to Cohen,

619
00:34:59,760 --> 00:35:02,720
Speaker 1: who you bought the silence of adult film star Stormy

620
00:35:02,840 --> 00:35:07,120
Speaker 1: Daniels before the twenty sixteen election. Trump is on trial

621
00:35:07,200 --> 00:35:11,400
Speaker 1: for allegedly falsifying dozens of business records to conceal the

622
00:35:11,440 --> 00:35:16,439
Speaker 1: one hundred thirty thousand dollars payment to Daniels. Jurors saw invoices,

623
00:35:16,520 --> 00:35:21,080
Speaker 1: company ledgers, and checks documenting how Trump paid thirty five

624
00:35:21,200 --> 00:35:25,279
Speaker 1: thousand dollars a month to Cohen in twenty seventeen while

625
00:35:25,320 --> 00:35:27,400
Speaker 1: he was in the White House. And that's it for

626
00:35:27,440 --> 00:35:30,080
Speaker 1: this edition of the Bloomberg Law Show. Remember you can

627
00:35:30,120 --> 00:35:32,359
Speaker 1: always get the latest legal news by listening to our

628
00:35:32,360 --> 00:35:37,120
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629
00:35:37,160 --> 00:35:40,680
Speaker 1: you're an in house council or in private practice, Bloomberg

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631
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Speaker 1: from our experts, you'll grasp the latest trends in the

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634
00:35:55,480 --> 00:35:58,120
Speaker 1: of law, the business of law, the future of law.

635
00:35:58,400 --> 00:36:02,239
Speaker 1: Visit Bloomberg Law dot com. I'm June Grosso. Stay with us.

636
00:36:02,280 --> 00:36:05,480
Speaker 1: Today's top stories and global business headlines are coming up

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