WEBVTT - Weekend Law: SCOTUS Term Analysis & What's Next for Sean 'Diddy' Combs 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:09.039 --> 0:00:12.360 It's a great victory for Sean Combs. It's a great 0:00:12.440 --> 0:00:14.840 victory for the jury system. 0:00:15.320 --> 0:00:18.600 You saw that the Southern District of New York prosecutors 0:00:18.640 --> 0:00:20.680 came at him with all that they had. 0:00:21.160 --> 0:00:25.760 It was indeed a resounding victory for Sean Diddy Combs 0:00:25.800 --> 0:00:29.920 and a resounding loss for federal prosecutors. After more than 0:00:30.040 --> 0:00:34.680 six weeks of sometimes graphic and emotional testimony, the jury 0:00:34.720 --> 0:00:40.000 acquitted Combs of the most serious charges against him, racketeering, conspiracy, 0:00:40.159 --> 0:00:43.760 and sex trafficking, and convicted him only of the lesser 0:00:43.920 --> 0:00:48.720 charges of transportation to engage in prostitution. After the verdict 0:00:48.840 --> 0:00:52.760 was read, Combs mouthed the words thank you to the jurors, 0:00:53.159 --> 0:00:57.320 dropped to his knees, and prayed with good reason. Instead 0:00:57.360 --> 0:01:00.640 of facing a sentence of life in prison, he now 0:01:00.800 --> 0:01:04.560 likely faces no more than six years, although the decision 0:01:04.600 --> 0:01:07.959 on his sentence will ultimately be up to the judge. 0:01:08.200 --> 0:01:11.880 My guest his former federal prosecutor, Robert Mintz, a partner 0:01:11.920 --> 0:01:15.920 maccarter and English Bob. He was convicted of two felonies, 0:01:16.319 --> 0:01:19.640 but Combs and his lawyers were elated with the verdict. 0:01:20.319 --> 0:01:24.160 Given the charges he was potentially facing, which included up 0:01:24.200 --> 0:01:28.000 to life in prison for the racketeering conspiracy and a 0:01:28.160 --> 0:01:31.720 minimum sentence of fifteen years to life for sex trafficking. 0:01:32.160 --> 0:01:35.000 The fact that he was only convicted of two counts 0:01:35.240 --> 0:01:39.360 of transportation to engaging prostitution can't be viewed as anything 0:01:39.440 --> 0:01:42.200 other than a win by the defense and a bitter 0:01:42.280 --> 0:01:43.520 loss for prosecutors. 0:01:44.040 --> 0:01:49.160 So the top count racketeering conspiracy, the charge has historically 0:01:49.200 --> 0:01:52.360 been used to take down mob bosses like John Gotti. 0:01:52.680 --> 0:01:56.560 Did the prosecutors overcharge him with this count? 0:01:56.800 --> 0:01:58.880 Well, I think that's going to be the question that 0:01:58.960 --> 0:02:01.880 prosecutors will have to ask themselves when they look back 0:02:01.920 --> 0:02:04.840 on this case, whether or not it was overcharged with 0:02:04.960 --> 0:02:08.600 the rico conspiracy. Now, the rico conspiracy, as you say, 0:02:08.639 --> 0:02:13.160 has been used traditionally in order to prosecute organized crime figures, 0:02:13.160 --> 0:02:16.519 but it has been used more broadly in recent years 0:02:16.560 --> 0:02:19.560 and was used in a high profile case just a 0:02:19.600 --> 0:02:23.040 couple of years ago in the R. Kelly case where 0:02:23.080 --> 0:02:25.720 that hip hop artist was also charged with RICO and 0:02:25.800 --> 0:02:29.120 sex trafficking in twenty twenty one, and in that instance, 0:02:29.200 --> 0:02:33.440 prosecutors did get a conviction, but here jurors ultimately concluded 0:02:33.800 --> 0:02:39.040 that the Rico conspiracy was overcharged, that the prosecution did 0:02:39.040 --> 0:02:42.520 not meet the burden of showing that Sean Combs had 0:02:42.639 --> 0:02:47.080 used his business empire as a vehicle in orders to 0:02:47.280 --> 0:02:51.240 commit further acts and in order to force his former 0:02:51.280 --> 0:02:55.240 girlfriends into performing sexual acts against their will. 0:02:55.919 --> 0:03:00.800 Explain how when prosecutors overcharged it, it gives the defense 0:03:00.840 --> 0:03:03.080 an opening to challenge their case. 0:03:03.600 --> 0:03:06.600 Well, that's ultimately where this case turned. It was really 0:03:06.639 --> 0:03:10.320 an argument by the defense that although mister Combe had 0:03:10.360 --> 0:03:14.519 committed some abhorrent acts, they had the video of him 0:03:14.639 --> 0:03:18.440 picking Tasti Ventura by the elevator bank out in Beverly Hills. 0:03:18.680 --> 0:03:22.440 That was undeniably bad behavior and painted mister Combs in 0:03:22.440 --> 0:03:25.280 a very negative light. But when that was held up 0:03:25.320 --> 0:03:30.240 against the more serious charges of racketeering conspiracy, which included 0:03:30.560 --> 0:03:36.160 certain criminal acts such as forced labor, bribery, obstruction of justice, 0:03:36.200 --> 0:03:39.640 all of that was thrown in and basically prosecutors were 0:03:39.680 --> 0:03:42.800 stating that he used this vast empire that he built 0:03:42.920 --> 0:03:46.720 up over many years simply as a means of forcing 0:03:46.760 --> 0:03:50.400 these ex girlfriends to continue to perform these sexual acts 0:03:50.440 --> 0:03:53.360 against their will, and all the while they were coerced 0:03:53.360 --> 0:03:56.760 into doing this. The defense was able to effectively pick 0:03:56.880 --> 0:04:01.080 that apart by showing text messages from both of the 0:04:01.160 --> 0:04:06.040 victims which at various times suggested that they had participated 0:04:06.080 --> 0:04:09.360 in these acts willfully, that they were not coerced, that 0:04:09.440 --> 0:04:12.560 they could have left but chose not to, And ultimately 0:04:12.600 --> 0:04:16.000 I think that was the downfall for the prostitution's case. 0:04:16.279 --> 0:04:19.919 It really ultimately turned on whether they believed that the 0:04:20.000 --> 0:04:23.720 victims were actually trapped in this relationship and had no 0:04:23.839 --> 0:04:26.960 way out and were literally forced to commit these acts, 0:04:27.360 --> 0:04:30.160 or whether this is more complex than that, and the 0:04:30.240 --> 0:04:33.840 defense was able to show that these relationships, while toxic, 0:04:34.120 --> 0:04:37.680 while not healthy, and while it involved bad behavior by 0:04:37.680 --> 0:04:41.600 mister Colmbs, didn't rise to the level of racketeering conspiracy. 0:04:42.520 --> 0:04:47.239 The two acquittals for sex trafficking, which stemmed from allegations 0:04:47.279 --> 0:04:51.200 that Colmbs forced his two ex girlfriends to engage in 0:04:51.240 --> 0:04:56.240 these so called freak offs, and Ventura testified over four 0:04:56.360 --> 0:05:00.920 days some very emotional testimony refer to this, But did 0:05:00.960 --> 0:05:02.760 the jurors just not believe her. 0:05:03.240 --> 0:05:05.839 It's hard to say exactly what they were thinking that 0:05:05.960 --> 0:05:10.800 testimony was compelling. That testimony had to be very emotional 0:05:10.960 --> 0:05:13.920 for jurors to sit through, and yet at the end 0:05:13.960 --> 0:05:16.719 of the day, they did not believe that she was 0:05:16.839 --> 0:05:22.480 necessarily compelled to participate in commercial sex acts through force, fraud, 0:05:22.560 --> 0:05:25.520 and coercion. The key here is there has to be 0:05:25.560 --> 0:05:29.560 a link between the force, the fraud, and the coercion 0:05:29.800 --> 0:05:32.200 and the acts of sex. And I think at the 0:05:32.279 --> 0:05:35.159 end of the day, the evidence was just not clear 0:05:35.279 --> 0:05:38.680 enough for them to meet that burden. Remember, prosecutors have 0:05:38.760 --> 0:05:42.279 to prove their case beyond a reasonable doubt. Anything less 0:05:42.320 --> 0:05:44.880 than that will result in an acquittal, as we saw 0:05:44.960 --> 0:05:46.880 here and sex trafficking. 0:05:47.080 --> 0:05:50.479 Did those charges even fit the facts here? Aren't people 0:05:50.600 --> 0:05:54.560 usually charged with sex trafficking when there's no connection to 0:05:54.640 --> 0:05:59.039 the victims, not people in long term relationships like Combs 0:05:59.080 --> 0:05:59.960 and his ex girlfriend. 0:06:00.800 --> 0:06:03.320 Yeah, that was I think one of the problems too, 0:06:03.480 --> 0:06:07.840 because the victims here were involved in these long term relationships, 0:06:07.960 --> 0:06:11.680 and they had written many messages, emails, text messages, other 0:06:11.760 --> 0:06:15.480 writings evidencing their love for mister Combs at various times. 0:06:15.560 --> 0:06:18.680 The fact that they willingly participated in some of these acts, 0:06:18.720 --> 0:06:21.240 the fact that they did things in order to please him, 0:06:21.520 --> 0:06:24.279 and the fact fact that after some of these sessions 0:06:24.360 --> 0:06:26.800 they texted him saying that they enjoyed them. And I 0:06:26.839 --> 0:06:30.720 think it was very difficult for jurors to necessarily conclude 0:06:30.760 --> 0:06:33.560 that all of this was done against their will, that 0:06:33.720 --> 0:06:36.640 none of it was consensual. And as you say, June, 0:06:36.680 --> 0:06:40.479 it's a situation where the sex trafficking charge is typically 0:06:40.560 --> 0:06:44.560 brought in an instance where the perpetrator does not have 0:06:44.600 --> 0:06:47.960 a relationship with the victim. Here there was a long 0:06:48.040 --> 0:06:52.320 term relationship, one that was very complicated, and also one 0:06:52.360 --> 0:06:56.720 in which the victims had benefited financially from their relationship 0:06:56.720 --> 0:07:00.400 with mister Combs. So it became, I think, very difficult 0:07:00.640 --> 0:07:04.479 for jurres to sort out the true nature of those relationships. 0:07:04.560 --> 0:07:07.800 I don't think they necessarily disbelieve the victims, but I 0:07:07.839 --> 0:07:11.240 think they ultimately concluded that the fact as presented to 0:07:11.280 --> 0:07:14.480 them in court did not meet the elements of the 0:07:14.520 --> 0:07:15.760 sex trafficking charges. 0:07:15.840 --> 0:07:20.560 He was convicted of two counts of transportation to engage 0:07:20.560 --> 0:07:24.960 in prostitution that stems from allegations that he paid sex 0:07:25.040 --> 0:07:28.760 workers to come to his freak off parties. Tell us 0:07:28.760 --> 0:07:32.600 about that that's a felony violation of the Federal Man Act. 0:07:32.920 --> 0:07:36.240 These were the charges that were really easiest for prosecutors 0:07:36.240 --> 0:07:38.680 to prove, because all they have to show is that 0:07:38.840 --> 0:07:42.600 individual's cross state lines with the intent to engage in prostitution. 0:07:43.000 --> 0:07:45.160 And there was plenty of evidence presented at the trial 0:07:45.520 --> 0:07:49.400 that mister Colms had made arrangements for these male prostitutes 0:07:49.680 --> 0:07:53.000 to meet with his girlfriends. He bought plane tickets, there 0:07:53.000 --> 0:07:56.520 were credit card statements, there were hotel records. These were 0:07:56.560 --> 0:08:01.080 the charges that prosecutors were able to prove fairly readily, 0:08:01.280 --> 0:08:03.760 and there wasn't really much of a defense to them. 0:08:03.960 --> 0:08:06.440 I think the defense strategy was to focus on the 0:08:06.480 --> 0:08:11.080 more serious charges, which they ultimately succeeded in convincing jurors 0:08:11.160 --> 0:08:12.320 to quit their client on. 0:08:12.840 --> 0:08:17.640 The prosecution put on thirty four witnesses. The defense didn't 0:08:17.680 --> 0:08:22.760 call any witnesses and elected instead to challenge the credibility 0:08:22.800 --> 0:08:27.920 of the prosecution's witnesses through lengthy cross examinations that sometimes 0:08:28.320 --> 0:08:31.440 were longer than the directs. Was that a risky move 0:08:31.520 --> 0:08:33.839 by the defense, No, I. 0:08:33.800 --> 0:08:37.679 Think from the very start the defense strategy was always 0:08:37.800 --> 0:08:40.920 to win their case through cross examination. I think they 0:08:41.040 --> 0:08:44.000 correctly sized the case up and knew that it was 0:08:44.040 --> 0:08:46.760 going to turn on the testimony of the two victims 0:08:46.960 --> 0:08:50.320 and how compelling they were, and that by adding witnesses 0:08:50.600 --> 0:08:53.240 for the defense, it was only going to complicate the 0:08:53.280 --> 0:08:56.720 case and create a more complex narrative for them to 0:08:56.800 --> 0:08:59.920 have to convince Durres ask exactly what was going on here. 0:09:00.240 --> 0:09:03.240 They wanted the case ultimately to be about these two 0:09:03.320 --> 0:09:06.080 victims and to show that the relationship that they were 0:09:06.120 --> 0:09:09.040 in with mister Colmbs over many years was one in 0:09:09.080 --> 0:09:13.160 which they gained financially, one in which they willingly participated. 0:09:13.200 --> 0:09:16.400 In no doubt, they were ups and downs in those relationships, 0:09:16.400 --> 0:09:18.760 and there were some domestic violence that went on, and 0:09:18.800 --> 0:09:21.760 the defense readily admitted that. But the question is did 0:09:21.760 --> 0:09:24.800 it really rise to the level of racketeering conspiracy? The 0:09:24.880 --> 0:09:28.120 defense placed a large set that the jurors would answer 0:09:28.120 --> 0:09:31.080 that question in the negative, and ultimately they prevailed. 0:09:31.360 --> 0:09:34.720 Were you surprised that the judge refused to release Colmbs 0:09:34.760 --> 0:09:36.439 while he waits to be sentenced. 0:09:36.920 --> 0:09:40.280 I wasn't totally surprised. I think here there was some 0:09:40.600 --> 0:09:43.640 sense from the judge that the defense team is really 0:09:43.640 --> 0:09:46.319 trying to have it both ways on this issue. He 0:09:46.520 --> 0:09:50.080 noted that the Combs defense team at trial admitted the 0:09:50.120 --> 0:09:54.320 domestic violence claims and said that a confession was really 0:09:54.400 --> 0:09:59.320 unnecessary here because the defendant's violence was starkly depicted in 0:09:59.400 --> 0:10:04.000 the twenti sixteen Intercontinental video, referring to the video of 0:10:04.080 --> 0:10:08.960 mister Holmes violently beating Cathy Ventura. This suggests to me 0:10:09.080 --> 0:10:11.599 that the judge was very troubled by the violence he 0:10:11.720 --> 0:10:15.560 witnessed in the video and led him to conclude that 0:10:15.640 --> 0:10:19.000 mister Colmbs continues to pose a danger to the community, 0:10:19.160 --> 0:10:22.120 which is why he decided to leave him in jail 0:10:22.200 --> 0:10:23.000 pending sentencing. 0:10:23.520 --> 0:10:26.840 As far as sentencing, technically it's ten years on each 0:10:27.000 --> 0:10:30.079 of the counts, colmb's lawyers said that under the federal 0:10:30.160 --> 0:10:35.800 sentencing guidelines, he'd likely face twenty one to twenty seven months. Prosecutors, 0:10:36.080 --> 0:10:39.600 citing his violence and other factors, said he'd likely face 0:10:39.720 --> 0:10:43.280 fifty one to sixty three months. Considering what the judge 0:10:43.280 --> 0:10:47.320 said in denying bail, mighty sentence Colmb's to more than that. 0:10:47.800 --> 0:10:50.199 Well, the upper limit that the judge can send them 0:10:50.240 --> 0:10:53.960 to is actually twenty years. That's the statutory maximum the 0:10:54.040 --> 0:10:58.319 sentencing guidelines govern these sentences to the extent that they 0:10:58.360 --> 0:11:01.600 give guidance to the jug judge, but the judge has 0:11:01.840 --> 0:11:05.720 full discretion to send mister Colmbs to whatever he wants, 0:11:05.760 --> 0:11:08.680 theoretically up to twenty years. I think the fact that 0:11:08.720 --> 0:11:12.040 he's decided to keep him in jail pending sentencing, even 0:11:12.080 --> 0:11:14.840 though he's already been in jail for almost a year, 0:11:15.280 --> 0:11:19.040 suggests that the judge does do this as a serious crime, 0:11:19.440 --> 0:11:22.320 and they send them to something much closer to what 0:11:22.400 --> 0:11:25.520 prosecutors are asking than what the defense is speaking here. 0:11:25.760 --> 0:11:28.640 And it is even possible that the judge sends them 0:11:28.679 --> 0:11:32.160 to something more than what prosecutors are asking for. It's 0:11:32.240 --> 0:11:36.280 highly unusual, but it is within the judges' discretion to 0:11:36.360 --> 0:11:39.400 really send mister Combs to whatever he believes is fair 0:11:39.440 --> 0:11:41.079 and just given the circumstances. 0:11:41.320 --> 0:11:45.439 They'll be a hearing next Tuesday to discuss the sentencing process. 0:11:45.600 --> 0:11:48.760 That should be interesting. Thanks so much, Bob. That's Robert 0:11:48.800 --> 0:11:52.360 Mins of maccarter and English coming up next. The winners 0:11:52.400 --> 0:11:56.240 and losers at the Supreme Court this term, I'm June gross. 0:11:56.320 --> 0:12:00.880 When you're listening to Bloomberg, Chief Justice John Roberts repeatedly 0:12:01.000 --> 0:12:05.200 stresses the importance of judicial independence as he did during 0:12:05.200 --> 0:12:06.320 an interview in May. 0:12:06.720 --> 0:12:07.839 Its job is to. 0:12:09.400 --> 0:12:13.320 Obviously decide cases, but in the course of that check 0:12:13.360 --> 0:12:16.679 the excesses of Congress or of the executive, and that 0:12:16.720 --> 0:12:18.679 does require degree of independence. 0:12:18.960 --> 0:12:22.680 However, in the Supreme Court's recent term, it doesn't appear 0:12:22.760 --> 0:12:26.520 that justices did much to check the excesses of the 0:12:26.600 --> 0:12:30.160 current executive. In fact, the clear winner of the term 0:12:30.559 --> 0:12:33.800 was President Donald Trump. The Court sided with him on 0:12:33.880 --> 0:12:38.200 broad legal questions and emergency request to let his policies 0:12:38.280 --> 0:12:42.280 take effect, from throwing transgender service members out of the 0:12:42.360 --> 0:12:46.679 military to opening hundreds of thousands of migrants to deportation. 0:12:47.280 --> 0:12:49.760 And for the second year in a row, the Court 0:12:49.960 --> 0:12:53.880 ended the term with a decision handing Trump a major victory, 0:12:54.240 --> 0:12:59.079 basically eliminating the main tool used to thwart his ambitious agenda, 0:12:59.520 --> 0:13:00.960 the nation wide injunction. 0:13:01.440 --> 0:13:02.800 This was a big one, wasn't it. 0:13:03.720 --> 0:13:08.160 This was a big decision, an amazing decision, one that 0:13:08.200 --> 0:13:09.199 we're very happy about. 0:13:09.760 --> 0:13:13.240 Like almost all the high profile cases this term, the 0:13:13.320 --> 0:13:17.720 Court divided six to three down ideological lines, with the 0:13:17.760 --> 0:13:21.840 conservatives in the majority and the liberals dissenting. Joining me 0:13:21.920 --> 0:13:25.840 is constitutional law expert Michael Dorf, a professor at Cornell 0:13:25.920 --> 0:13:29.440 Law School, Mike The finale of the term, if you will, 0:13:29.880 --> 0:13:33.160 was the decision in the case over Trump's ban on 0:13:33.440 --> 0:13:38.520 automatic birthright citizenship, where the Conservatives stripped the lower courts 0:13:38.559 --> 0:13:42.280 of the power to grant nationwide injunctions, which have really 0:13:42.280 --> 0:13:46.240 been the only effective check on the Trump agenda. Trump 0:13:46.280 --> 0:13:49.439 thought the decision was important enough to call a press conference. 0:13:49.800 --> 0:13:51.000 How important do you think. 0:13:50.880 --> 0:13:54.480 It is that remains to be seen? The prohibition on 0:13:54.960 --> 0:14:01.040 most universal injunctions will have very serious bite if, but 0:14:01.200 --> 0:14:05.440 only if, the Court makes it difficult for plaintiffs to 0:14:05.480 --> 0:14:09.920 bring class actions and makes it difficult for states to 0:14:10.000 --> 0:14:16.560 sue for statewide injunctions. Those are two potential workarounds, neither 0:14:16.720 --> 0:14:22.040 of which the majority directly addressed is but both of which, 0:14:22.520 --> 0:14:26.040 just as the Leto and his concurrence suggests, should be 0:14:26.440 --> 0:14:31.280 only available under a heightened standard of sorts. So what 0:14:31.360 --> 0:14:35.560 remains to be seen is whether plaintiffs challenging these executive actions. 0:14:35.600 --> 0:14:39.520 Here it was the birthright citizenship order, but it applies 0:14:39.560 --> 0:14:43.320 diversely everything, whether they can quickly convert to class actions, 0:14:43.520 --> 0:14:46.080 whether states can bring these cases. If they can, then 0:14:46.120 --> 0:14:48.280 I think this ends up not being such a big deal. 0:14:48.640 --> 0:14:51.960 Getting class action status is a lot more complicated, and 0:14:52.080 --> 0:14:55.120 I think we've seen just in the last week how 0:14:55.160 --> 0:14:58.640 confusing it is for the lower courts to parse through this. 0:14:59.240 --> 0:15:02.360 The Supreme Court could have, and in my view, should 0:15:02.400 --> 0:15:07.000 have given more guidance on whether class actions are available 0:15:07.040 --> 0:15:09.080 and under what standard. You know, one of the things 0:15:09.320 --> 0:15:12.240 I think is easily overlooked is the ruling in the 0:15:12.320 --> 0:15:17.600 case is not a constitutional holding. The court doesn't say 0:15:18.120 --> 0:15:21.200 that the Constitution forbids this kind of equitable relief. What 0:15:21.240 --> 0:15:24.920 it says is that this power was not conferred by 0:15:25.080 --> 0:15:28.160 statute on the federal courts. Well, if that's the case, 0:15:28.200 --> 0:15:32.160 it's possible that federal Rule of Civil Procedure twenty three, 0:15:32.320 --> 0:15:35.880 which is the class action provision, is empowered by the 0:15:35.960 --> 0:15:39.360 Rules Enabling Act that that does confer this power, and 0:15:39.360 --> 0:15:41.840 that would be fully consistent. It would just lead to, 0:15:42.120 --> 0:15:45.200 you know, the availability of similar relief under a different mechanism. 0:15:45.520 --> 0:15:48.760 President Trump says that the administration is going to move 0:15:48.880 --> 0:15:52.200 to lift hold that judges have placed on a number 0:15:52.200 --> 0:15:56.880 of his policies. He mentioned fights over refugee resettlement, federal spending, 0:15:56.920 --> 0:15:59.440 and sanctuary cities. So you know, it's going to open 0:15:59.480 --> 0:15:59.680 up a. 0:15:59.680 --> 0:16:02.240 Can of Oh, I think that's right. I mean, I 0:16:02.240 --> 0:16:05.320 think this is in some ways the basic problem with 0:16:05.520 --> 0:16:09.080 the Supreme Court these days, which is it's treating the 0:16:09.120 --> 0:16:14.160 Trump administration like a normal administration rather than one that 0:16:14.360 --> 0:16:16.880 is committed to sort of pushing the edge of the 0:16:17.000 --> 0:16:19.640 envelope and getting away with whatever it can. And so, 0:16:20.000 --> 0:16:22.480 you know, if you were thinking about the system as 0:16:22.480 --> 0:16:24.800 a whole and what's good for the rule of law, 0:16:25.120 --> 0:16:27.800 you would have been much clearer of your guidance and 0:16:28.040 --> 0:16:30.360 in what you're allowing and not allowing justice. 0:16:30.400 --> 0:16:33.200 Sonya Sotomayor and one of her ascent said the Court 0:16:33.400 --> 0:16:38.280 was rewarding lawlessness because the Trump administration has repeatedly, either 0:16:38.440 --> 0:16:43.520 explicitly or not so explicitly, ignored court orders, particularly in 0:16:43.560 --> 0:16:45.920 the cases of immigration orders. 0:16:46.400 --> 0:16:49.280 She is exactly right that it's one thing to stay, 0:16:49.440 --> 0:16:51.880 as the Court has said in some of these cases. Well, 0:16:51.920 --> 0:16:54.280 we think the lower courts went too far in issuing 0:16:54.280 --> 0:16:57.720 this order. That doesn't mean that the administration was permitted 0:16:57.760 --> 0:17:01.280 to violate the order while it was us in force. 0:17:01.520 --> 0:17:03.960 The normal rule is if you don't like a court order, 0:17:04.359 --> 0:17:07.199 you appeal it. But unless you get a stay of 0:17:07.280 --> 0:17:09.360 that order, and until you get a stay of that order, 0:17:09.359 --> 0:17:10.440 you have to comply with it. 0:17:11.240 --> 0:17:16.439 There were three cases involving LGBTQ rights that divided the 0:17:16.680 --> 0:17:20.800 justices down ideological lines and ended up in losses for 0:17:20.960 --> 0:17:25.400 the LGBTQ plus community. In the Scrimmeti case, which has 0:17:25.520 --> 0:17:29.440 implications for transgender youth in more than half the states, 0:17:29.880 --> 0:17:35.200 the Court's conservatives uphel Tennessee's ban on gender affirming care 0:17:35.359 --> 0:17:40.280 for transgender miners, and advocates say the decision is devastating 0:17:40.359 --> 0:17:44.240 for transgender youth and their families in the twenty seven 0:17:44.320 --> 0:17:48.200 states that have similar bands. Here's Kelly Robinson, the president 0:17:48.240 --> 0:17:49.639 of the Human Rights Campaign. 0:17:50.119 --> 0:17:53.080 You're going to have families, families that have been in 0:17:53.320 --> 0:17:55.119 states that they live in for generations. 0:17:55.119 --> 0:17:58.520 I know family has been in Arizona for generations and generations. 0:17:58.560 --> 0:18:01.280 They are Arizonas. They're going to have to leave their 0:18:01.320 --> 0:18:04.480 states just to get access to care for their kids. 0:18:05.240 --> 0:18:09.760 Justice Sonya Sotomayor wrote that she dissented in sadness. She 0:18:09.840 --> 0:18:12.720 said this decision will open the door to more state 0:18:12.800 --> 0:18:18.159 discrimination against trans tenes and authorize, in her words, untold 0:18:18.280 --> 0:18:22.080 harm to these families. Mike, this was an equal protection argument. 0:18:22.520 --> 0:18:25.280 As it came to the Supreme Court, the only issue 0:18:25.320 --> 0:18:28.639 was whether this was a violation of equal protection, and 0:18:28.880 --> 0:18:32.400 the Court, in a sense I wouldn't say, duck that issue, 0:18:32.440 --> 0:18:35.359 but sort of mooted it by saying, well, there isn't 0:18:35.560 --> 0:18:40.359 a sex based classification or even a transgender identity based 0:18:40.359 --> 0:18:44.320 classification at issue here, so we don't have to apply 0:18:45.040 --> 0:18:50.040 the intermediate scrutiny that would normally apply to such laws, 0:18:50.240 --> 0:18:52.600 and therefore we only have to say whether it's rational. 0:18:52.640 --> 0:18:54.919 And of course states get to make all sorts of 0:18:55.240 --> 0:18:58.119 medical judgments, and you subject those to rational basis scrutiny, 0:18:58.119 --> 0:19:01.720 they're almost always going to survive. So, in a sense, 0:19:02.000 --> 0:19:06.720 the case doesn't tell us that much about the status 0:19:06.760 --> 0:19:10.119 of discrimination of the basis of transgender status under the 0:19:10.160 --> 0:19:13.000 Constitution going forward, because the Court said, well, we don't 0:19:13.000 --> 0:19:17.040 have to address that here, except that several justices in 0:19:17.320 --> 0:19:21.639 concurring opinions didn't address that and said, even if it 0:19:21.680 --> 0:19:26.760 is transgender based discrimination, that's okay because that kind of 0:19:26.760 --> 0:19:29.440 discrimination doesn't trigger any heightened scrutiny. 0:19:29.800 --> 0:19:34.800 Would those three concurring justices Clarence Thomas, Samuel Alito, and 0:19:34.920 --> 0:19:40.800 Amy Cony Barrett reject heightened scrutiny for any anti trans laws. 0:19:41.680 --> 0:19:44.200 I think that's right. I mean Justice Barrett actually is 0:19:44.240 --> 0:19:47.440 the one who writes most extensively on this, and she says, look, 0:19:47.520 --> 0:19:52.280 we have criteria for deciding whether something is a suspect 0:19:52.280 --> 0:19:56.160 of sent me susie classification, and transgender status doesn't meet 0:19:56.240 --> 0:19:59.280 those criteria. Now, I think she applies them a little 0:19:59.280 --> 0:20:01.320 bit strangely. One of the thing she says is that 0:20:01.400 --> 0:20:04.520 in order for something to be so called immutable characteristic, 0:20:04.880 --> 0:20:08.840 it has to be identifiable at birth, and transgender status 0:20:08.840 --> 0:20:12.919 doesn't emerge until later. Well, that's a kind of backwards analysis, 0:20:13.240 --> 0:20:16.320 because of course, the whole point of someone wanting to 0:20:16.800 --> 0:20:20.840 transition to address their gender dysparrior or other mismatch between 0:20:20.880 --> 0:20:24.800 their experience of themselves and the sex assigned at birth 0:20:25.320 --> 0:20:29.520 is that what they were treated as at birth was 0:20:29.880 --> 0:20:32.919 you know, not accurate. And so it's a very odd 0:20:33.240 --> 0:20:35.800 odd thing to say, Well, because when you were an 0:20:35.840 --> 0:20:40.359 infant you didn't realize or other people didn't realize, that 0:20:40.440 --> 0:20:42.920 you were a male inside of a female body, or 0:20:43.000 --> 0:20:46.399 vice versa, then that's not real in some sense. So 0:20:46.600 --> 0:20:48.560 there's a way in which it's a kind of you know, 0:20:48.680 --> 0:20:52.679 denial of the existence of transgender persons at all. I mean, 0:20:52.720 --> 0:20:54.840 she doesn't say that, but I think that's the logical 0:20:54.920 --> 0:20:57.000 implication of that particular criterion. 0:20:57.400 --> 0:21:01.280 I mean, the same drugs that Tennessee ban for the 0:21:01.320 --> 0:21:05.440 purpose of gender firming care for transitioning miners are allowed 0:21:05.800 --> 0:21:10.199 for a number of other purposes in non transminers. How 0:21:10.240 --> 0:21:12.560 do they get away from saying that's not an equal 0:21:12.640 --> 0:21:14.280 protection violation? 0:21:15.119 --> 0:21:18.200 So the plaintiffs and just the state of my orin descent, 0:21:18.320 --> 0:21:20.720 I think, are very clear. Look, if a boy wants 0:21:20.800 --> 0:21:24.679 to take this drug to give himself facial hair, you 0:21:24.760 --> 0:21:29.119 allow it. If a transgender boy who's assigned female at 0:21:29.119 --> 0:21:31.000 birth wants to take it, you disallow. It's the same 0:21:31.400 --> 0:21:34.760 same effect. How could that be anything other than sex discrimination? 0:21:35.160 --> 0:21:39.200 And what the court says is, well, it's not the 0:21:39.240 --> 0:21:44.440 same treatment if it's being prescribed for a different condition. 0:21:44.880 --> 0:21:49.080 In the boy who's taking this to give himself facial hair, 0:21:49.560 --> 0:21:54.280 it's being prescribed because he has low testosterone. In the 0:21:54.440 --> 0:21:58.200 transgender boy who's signed female at birth, it's being given 0:21:58.560 --> 0:22:04.040 to facilitate sex transition. And that the course says is 0:22:04.080 --> 0:22:08.080 a different treatment. Now they analogize to something like, you know, 0:22:08.280 --> 0:22:12.240 different off label uses, so that something might be approved 0:22:12.480 --> 0:22:15.880 as a treatment for hypertension and people discover heness also 0:22:15.920 --> 0:22:19.879 can cure baldness mormally. If a drug is approved for 0:22:19.960 --> 0:22:22.439 one purpose, it can be prescribed off label, but states 0:22:22.560 --> 0:22:26.200 can forbid certain off label uses if they think the 0:22:26.280 --> 0:22:29.880 risks and benefits are different. So that's the analogy that 0:22:30.240 --> 0:22:33.680 the majority draws. The difficulty with that as I think 0:22:33.840 --> 0:22:36.680 just the studyment are convincingly, says in dissent, is well, here, 0:22:36.880 --> 0:22:40.520 what makes this a different treatment is simply the sex 0:22:40.520 --> 0:22:43.720 assigned birth of the person taking it, And you're sort 0:22:43.760 --> 0:22:47.000 of building the lily or double counting by working that in. 0:22:47.359 --> 0:22:50.640 On Monday, the Court ordered federal appeals courts in four 0:22:50.840 --> 0:22:54.960 states to re examine their rulings in favor of transgender 0:22:55.040 --> 0:22:59.160 people in clashes over healthcare and birth certificates in light 0:22:59.200 --> 0:23:02.120 of the Scrimmette decision. Can we read anything into that? 0:23:02.640 --> 0:23:04.640 Oh yes, So I was trying to be a little 0:23:04.640 --> 0:23:07.080 bit hopeful there to say that, you know, as a 0:23:07.119 --> 0:23:11.359 matter of the official holdings, the court has not or 0:23:11.480 --> 0:23:16.040 closed the possibility that sometime in the future it could 0:23:16.080 --> 0:23:21.000 say transgender status ecrimination is sort of presumptively invalid in 0:23:21.040 --> 0:23:25.200 the same way that sex discrimination is. But reading the 0:23:25.320 --> 0:23:28.040 tea leaves, I think it's pretty clear that that's not 0:23:28.160 --> 0:23:31.320 the direction of this Court is going. And another way 0:23:31.320 --> 0:23:35.080 to put that is that they are going to increasingly 0:23:35.160 --> 0:23:38.600 treat the boss Stock decision, the case that held that 0:23:38.800 --> 0:23:43.280 sexual orientation and transgender status discrimination or sex discrimination for 0:23:43.320 --> 0:23:46.200 purposes of Title seven. They're going to treat that decision 0:23:46.240 --> 0:23:49.200 as a kind of outlier, the case that gets distinguished, 0:23:49.440 --> 0:23:53.840 and they specifically say, Inscremmetti, well, we're not addressing this 0:23:53.920 --> 0:23:56.880 Bostock analogy. Title seven might be different. So I think 0:23:56.920 --> 0:23:59.280 they're teeing that up and so cutting back, you know, 0:23:59.680 --> 0:24:03.879 anti trends backlash that we've been seeing in the political 0:24:03.960 --> 0:24:06.800 realm I think is now flowering in the Supreme Court 0:24:06.840 --> 0:24:07.200 as well. 0:24:07.560 --> 0:24:12.000 And LGBTQ rights may be further curb next term because 0:24:12.040 --> 0:24:15.240 on Thursday, the Court agreed to decide whether states can 0:24:15.320 --> 0:24:19.119