1 00:00:00,560 --> 00:00:05,360 Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:07,160 --> 00:00:10,560 Speaker 1: The Supreme Court has reinstated a requirement that women visit 3 00:00:10,600 --> 00:00:14,240 Speaker 1: a medical facility to obtain abortion inducing pills. In a 4 00:00:14,320 --> 00:00:18,040 Speaker 1: six to three vote, the Court granted a Trump administration 5 00:00:18,079 --> 00:00:20,760 Speaker 1: request to end the mail deliveries a judge had allowed 6 00:00:20,840 --> 00:00:24,439 Speaker 1: during the coronavirus pandemic. The order, which came over three 7 00:00:24,480 --> 00:00:27,680 Speaker 1: descents by the liberal justices, marks a shift for the 8 00:00:27,720 --> 00:00:32,160 Speaker 1: Court that let mail deliveries continue temporarily in October, before 9 00:00:32,240 --> 00:00:35,680 Speaker 1: Justice Amy Coney Barrett had joined the court. My guest 10 00:00:35,760 --> 00:00:39,000 Speaker 1: is Michelle Goodwin, a professor at the University of California 11 00:00:39,040 --> 00:00:42,880 Speaker 1: Irvine School of Law. Her latest book is entitled Policing 12 00:00:42,880 --> 00:00:45,280 Speaker 1: the Womb. Tell us a little bit about the background 13 00:00:45,360 --> 00:00:49,560 Speaker 1: of this case. This case Food and Drug Administration versus 14 00:00:49,560 --> 00:00:54,480 Speaker 1: the American College of Obstetricians and Gynecologists is a case 15 00:00:54,840 --> 00:00:59,680 Speaker 1: that reflects COVID nineteen in many ways. So during this 16 00:00:59,760 --> 00:01:06,720 Speaker 1: period of coronavirus pandemic and people sheltering in place, the 17 00:01:07,200 --> 00:01:14,480 Speaker 1: SBA has waived in person requirements generally or a number 18 00:01:14,720 --> 00:01:19,160 Speaker 1: of drugs, including certain controlled substances, but they have not 19 00:01:19,360 --> 00:01:21,720 Speaker 1: done it for miss A press stone, which is a 20 00:01:21,800 --> 00:01:26,160 Speaker 1: drug that's used during um to achieve an abortion for 21 00:01:26,520 --> 00:01:30,240 Speaker 1: individuals who are within the first two weeks of pregnancy 22 00:01:30,640 --> 00:01:35,559 Speaker 1: during COVID. For the first period of it, women did 23 00:01:35,640 --> 00:01:38,200 Speaker 1: not have to go to a number states. Women did 24 00:01:38,200 --> 00:01:41,640 Speaker 1: not have to go to a clinic in order to 25 00:01:41,640 --> 00:01:45,840 Speaker 1: pick up this medication, which the FDA has wanted women 26 00:01:45,880 --> 00:01:49,920 Speaker 1: to do. Federal court blocked that when it was challenged. 27 00:01:50,320 --> 00:01:54,720 Speaker 1: What's interesting here is that the drugs used, and it's 28 00:01:54,720 --> 00:01:58,400 Speaker 1: a two drug combinations. A press stone and ms aprostol 29 00:01:59,160 --> 00:02:02,200 Speaker 1: are the two drugs that are used to achieve a 30 00:02:02,280 --> 00:02:05,720 Speaker 1: medication abortion. What this means is that a person does 31 00:02:05,760 --> 00:02:08,600 Speaker 1: not have to go through a surgery, but instead can 32 00:02:08,639 --> 00:02:12,720 Speaker 1: take these two pills and achieve than a termination of 33 00:02:12,800 --> 00:02:16,880 Speaker 1: the pregnancy at home. Now, this is the only drug 34 00:02:17,080 --> 00:02:23,560 Speaker 1: out of over twenty thousand FDA approved drugs that fb 35 00:02:23,600 --> 00:02:27,760 Speaker 1: A requires to be picked up in person for patients 36 00:02:27,800 --> 00:02:31,120 Speaker 1: to take at home. So, out of more than twenty 37 00:02:31,160 --> 00:02:36,440 Speaker 1: thousand drugs, the FDA has selected just this particular drugs 38 00:02:37,160 --> 00:02:40,520 Speaker 1: where a woman has to or person who wants to 39 00:02:41,200 --> 00:02:46,160 Speaker 1: achieve a pregnancy termination has to pick up in person. Now, 40 00:02:46,200 --> 00:02:50,320 Speaker 1: what's interesting about this is that because it is a 41 00:02:50,480 --> 00:02:53,720 Speaker 1: two drug regiment, even though a person has to go 42 00:02:53,880 --> 00:02:57,720 Speaker 1: out and pick it up, that's not when the termination 43 00:02:57,800 --> 00:03:01,560 Speaker 1: takes place. So the very idea that somehow this is 44 00:03:01,960 --> 00:03:06,840 Speaker 1: promoting patient health and safety really is an illusory concept 45 00:03:07,320 --> 00:03:10,720 Speaker 1: because the person isn't terminating the pregnancy at that time. 46 00:03:10,760 --> 00:03:13,560 Speaker 1: It's actually what the second drug that they're taking while 47 00:03:13,600 --> 00:03:18,760 Speaker 1: they are at home that the termination proceeds. What was 48 00:03:18,800 --> 00:03:22,640 Speaker 1: the question before the court? Now, the question here was 49 00:03:22,680 --> 00:03:27,440 Speaker 1: whether this case posed and undo or what the FDA 50 00:03:27,560 --> 00:03:31,519 Speaker 1: is requiring during a period of pandemic that a person 51 00:03:31,639 --> 00:03:34,840 Speaker 1: leave home to pick up this drug UM and to 52 00:03:34,920 --> 00:03:37,240 Speaker 1: take it in a clinic or hospital or where have you, 53 00:03:37,960 --> 00:03:43,360 Speaker 1: whether that creates an undue burden UM. Many people refer 54 00:03:43,520 --> 00:03:47,320 Speaker 1: to Rowe v. Wade as the case under which abortion 55 00:03:47,640 --> 00:03:51,000 Speaker 1: is is litigated in the United States, but it's really 56 00:03:51,120 --> 00:03:53,560 Speaker 1: planned parenthood. Be Casey, which was a case that was 57 00:03:53,600 --> 00:03:56,920 Speaker 1: about twenty years after Roe b. Waite, where the Supreme 58 00:03:56,960 --> 00:04:03,480 Speaker 1: Court upheld Row and also modified Rose holding, and the 59 00:04:03,520 --> 00:04:09,040 Speaker 1: Court said that it would be unconstitutional for a space 60 00:04:09,880 --> 00:04:14,160 Speaker 1: to impose or government to impose an undue burden on 61 00:04:14,280 --> 00:04:17,279 Speaker 1: the right to be able to terminate a pregnancy. And 62 00:04:17,320 --> 00:04:21,320 Speaker 1: so the question here is what the FDA is requiring 63 00:04:21,800 --> 00:04:25,320 Speaker 1: during a period of pandemic that a person leave home 64 00:04:25,480 --> 00:04:30,279 Speaker 1: to pick up this drug, whether that creates an undue burden? 65 00:04:31,000 --> 00:04:34,359 Speaker 1: So tell us how the Supreme Court ruled. Oh, this 66 00:04:34,520 --> 00:04:38,200 Speaker 1: was a case where um six to three. There were 67 00:04:38,600 --> 00:04:43,960 Speaker 1: Justice Sodomyer, Justice Kagan Um were um in this scent 68 00:04:44,120 --> 00:04:49,520 Speaker 1: along with Brier and Sodomyer and Kagan wrote a decent 69 00:04:49,640 --> 00:04:53,560 Speaker 1: in the case. But the majority, which is comprised of 70 00:04:53,680 --> 00:04:57,320 Speaker 1: conservatives on the Court were the ones that said that 71 00:04:57,400 --> 00:05:00,480 Speaker 1: this is not an undue burden and a In fact, 72 00:05:00,640 --> 00:05:04,200 Speaker 1: what does Roberts thought to do was to even change 73 00:05:04,240 --> 00:05:07,159 Speaker 1: the questions from whether this is an undue burden, and 74 00:05:07,160 --> 00:05:09,760 Speaker 1: he said that that's not the right lens for which 75 00:05:09,839 --> 00:05:14,440 Speaker 1: one should actually be looking at this particular case. And 76 00:05:14,520 --> 00:05:18,320 Speaker 1: that too, one would find a bit of a specious argument, 77 00:05:18,400 --> 00:05:22,360 Speaker 1: because it is actually the standard for which under which 78 00:05:22,400 --> 00:05:27,599 Speaker 1: the Court analyzes abortion law, and undue burden standard. And 79 00:05:27,640 --> 00:05:31,359 Speaker 1: so you see the Court shifting even there in terms 80 00:05:31,360 --> 00:05:34,760 Speaker 1: of how a case such as this should be read. 81 00:05:35,440 --> 00:05:37,560 Speaker 1: Many people are pointing to this and saying, well, this 82 00:05:37,640 --> 00:05:42,279 Speaker 1: is the first case on abortion decided since Amy Coney 83 00:05:42,320 --> 00:05:45,640 Speaker 1: Barrett has been a justice on the Court. But the 84 00:05:45,760 --> 00:05:50,680 Speaker 1: vote was six to three. The Chief voted with the Conservatives. 85 00:05:50,720 --> 00:05:54,080 Speaker 1: So did it really make a difference that Barrett is 86 00:05:54,120 --> 00:05:57,680 Speaker 1: on the court. Well, it does make a difference that 87 00:05:57,800 --> 00:06:00,320 Speaker 1: Barrett is on the court, even if the decision could 88 00:06:00,400 --> 00:06:04,080 Speaker 1: have been five to four decision. And and here is why, 89 00:06:04,360 --> 00:06:07,159 Speaker 1: is that we don't expect the Supreme Court to just 90 00:06:07,240 --> 00:06:11,240 Speaker 1: simply be calling balls and strikes that may happen. And 91 00:06:11,360 --> 00:06:14,679 Speaker 1: that's perhaps, um, the more cynical view of the court. 92 00:06:14,839 --> 00:06:16,880 Speaker 1: And I think that there would be people who would 93 00:06:16,920 --> 00:06:22,080 Speaker 1: be um in their right analysis to be skeptical about 94 00:06:22,200 --> 00:06:25,760 Speaker 1: how some things happen in a court at a time 95 00:06:25,760 --> 00:06:29,960 Speaker 1: in which, um, which abortion has become so deeply politicized. 96 00:06:30,200 --> 00:06:32,560 Speaker 1: But if we were not to be as cynical, and 97 00:06:32,600 --> 00:06:34,479 Speaker 1: if we were to think about the court as a 98 00:06:34,520 --> 00:06:40,520 Speaker 1: place in which jurists are analyzing, communicating and thinking collectively 99 00:06:40,640 --> 00:06:45,920 Speaker 1: through then even at five four, hopefully then that that 100 00:06:46,080 --> 00:06:50,719 Speaker 1: fourth vote would have been one to further try to 101 00:06:51,240 --> 00:06:56,120 Speaker 1: um educate and inform colleagues on the court. You know, 102 00:06:56,200 --> 00:06:59,960 Speaker 1: there's a saying about jurisprudence and exile and the idea 103 00:07:00,000 --> 00:07:04,000 Speaker 1: of being that while you might not have moved your 104 00:07:04,080 --> 00:07:07,599 Speaker 1: colleagues on the Court on a particular day and in 105 00:07:07,640 --> 00:07:12,440 Speaker 1: a particular issue, but what you leave behind in the argumentation, 106 00:07:12,560 --> 00:07:14,960 Speaker 1: what you leave behind in the descent, what you leave 107 00:07:15,000 --> 00:07:19,360 Speaker 1: behind even in a nuanced concurrence, is something that your 108 00:07:19,400 --> 00:07:22,480 Speaker 1: colleagues can ponder over. That as the other justices on 109 00:07:22,520 --> 00:07:27,240 Speaker 1: the Court, can influence um courts in the future. And 110 00:07:27,280 --> 00:07:29,800 Speaker 1: I think that that matters here too, So so I 111 00:07:29,840 --> 00:07:32,600 Speaker 1: would say that it's not just Chief Justice joint on 112 00:07:32,800 --> 00:07:35,119 Speaker 1: and bear it on the court, but that it really 113 00:07:35,160 --> 00:07:40,240 Speaker 1: does matter having a court um that recognize the justice 114 00:07:40,280 --> 00:07:43,920 Speaker 1: issues associated with reproductive health and right. And I'd like 115 00:07:43,960 --> 00:07:47,560 Speaker 1: to add one other thing too to this, which is, 116 00:07:48,200 --> 00:07:51,559 Speaker 1: you know, Justice Robert, in the opinion that he writes, 117 00:07:51,640 --> 00:07:54,760 Speaker 1: he says, my view is that the Court's owe significant 118 00:07:54,840 --> 00:07:59,680 Speaker 1: deference to to the politically accountable entities with the background, 119 00:07:59,720 --> 00:08:03,360 Speaker 1: com potence and expertise to assess public health. And here 120 00:08:03,440 --> 00:08:08,000 Speaker 1: he's talking about the FDA decisions. But here's what's also 121 00:08:08,080 --> 00:08:11,240 Speaker 1: important to note, which is that there are times in 122 00:08:11,320 --> 00:08:16,400 Speaker 1: which America's agencies can be prone to political capture. That 123 00:08:16,600 --> 00:08:20,160 Speaker 1: is to say that people leading those agencies can be 124 00:08:20,320 --> 00:08:24,920 Speaker 1: people who have political points of view that are quite partisan. 125 00:08:25,080 --> 00:08:29,160 Speaker 1: That reflects the individuals who have put them there. So 126 00:08:29,240 --> 00:08:32,720 Speaker 1: it's not to say that agency determinations come about through 127 00:08:33,160 --> 00:08:36,160 Speaker 1: neutral fact finding UM. And in fact, what we know 128 00:08:36,240 --> 00:08:38,959 Speaker 1: is that there has been a history with regard to 129 00:08:39,240 --> 00:08:43,920 Speaker 1: women's health where in fact, the FDA has been quite politicized, 130 00:08:44,320 --> 00:08:48,960 Speaker 1: and how it has made recommendations with regards to drugs 131 00:08:49,000 --> 00:08:51,640 Speaker 1: that women would um take, and we could go through 132 00:08:51,679 --> 00:08:54,040 Speaker 1: a lengthy history of m Max. I'd love to do 133 00:08:54,080 --> 00:08:57,080 Speaker 1: that on your show and just talk about how politicized 134 00:08:57,120 --> 00:09:02,120 Speaker 1: the FDA has been visa the women's health. Let's look forward, 135 00:09:02,400 --> 00:09:05,640 Speaker 1: because there are many constitutional scholars who are looking at 136 00:09:05,640 --> 00:09:08,520 Speaker 1: Amy Cony Barrett on the Court and saying be ready 137 00:09:08,600 --> 00:09:13,760 Speaker 1: for some changes in abortion law. So do you take 138 00:09:13,840 --> 00:09:17,760 Speaker 1: any comfort in the fact that the justices didn't take 139 00:09:17,800 --> 00:09:21,520 Speaker 1: on lower court ruling a third Circuit ruling that allowed 140 00:09:21,600 --> 00:09:27,960 Speaker 1: Pittsburgh's fifteen foot buffer zone around abortion clinics to remain. Well, 141 00:09:28,000 --> 00:09:33,040 Speaker 1: what you're pointing to is that abortion right um are 142 00:09:33,240 --> 00:09:38,480 Speaker 1: a hot button political issue. They've become deeply politicized in 143 00:09:38,559 --> 00:09:43,040 Speaker 1: ways that are partisans and that are quite distinct from 144 00:09:43,080 --> 00:09:46,000 Speaker 1: what they used to be forty fifty years ago in 145 00:09:46,120 --> 00:09:48,079 Speaker 1: the space of Roe v. Wade. I mean, let's keep 146 00:09:48,080 --> 00:09:51,400 Speaker 1: in mind that Roe was the seven to two opinion, 147 00:09:51,880 --> 00:09:55,679 Speaker 1: and that five of the seven justices in support of 148 00:09:55,800 --> 00:10:01,040 Speaker 1: Roe v. Wade were Republican appointed. UM Richard Nixon famously 149 00:10:01,400 --> 00:10:04,880 Speaker 1: talked about family planning as being a basic public health issue. 150 00:10:05,360 --> 00:10:08,800 Speaker 1: It was Prescott Bush, who was the father of George Bush, 151 00:10:08,920 --> 00:10:13,520 Speaker 1: the first President UM, who is the treasurer for planned parenthood. 152 00:10:13,800 --> 00:10:16,079 Speaker 1: So what we see today is actually not a part 153 00:10:16,280 --> 00:10:20,280 Speaker 1: of a Republican legacy UM in the United States, where 154 00:10:20,320 --> 00:10:23,760 Speaker 1: there was a sense of both Democrats and Republicans being 155 00:10:23,760 --> 00:10:26,600 Speaker 1: able to see eye to eye in terms of women's 156 00:10:26,720 --> 00:10:29,480 Speaker 1: reproductive health care and safety as being just basic public 157 00:10:29,480 --> 00:10:32,440 Speaker 1: health and family planning being public health and leave these 158 00:10:32,480 --> 00:10:35,920 Speaker 1: decisions to women and their health care providers. But instead 159 00:10:36,000 --> 00:10:40,760 Speaker 1: these issues have now become mired um in in politics 160 00:10:40,760 --> 00:10:43,240 Speaker 1: and politics in such a way that are not really 161 00:10:43,559 --> 00:10:47,960 Speaker 1: about preserving or promoting women's health or anything like that. UM. 162 00:10:48,080 --> 00:10:53,080 Speaker 1: They've become deeply contested and deeply contested and fundamentalist religious ways. 163 00:10:53,160 --> 00:10:55,680 Speaker 1: That's very clear in terms of what's happening and what's 164 00:10:55,679 --> 00:10:58,960 Speaker 1: being articulated. The future of what these rights look like 165 00:10:59,040 --> 00:11:03,520 Speaker 1: will be heavily dependant upon what this Congress does, what 166 00:11:03,720 --> 00:11:08,240 Speaker 1: this next President, Joe Biden does. UM. The president has 167 00:11:08,440 --> 00:11:13,520 Speaker 1: a significant authority through his the ability to UM, the 168 00:11:13,520 --> 00:11:19,400 Speaker 1: ability to make executive orders that then can be effective 169 00:11:19,440 --> 00:11:23,440 Speaker 1: both domestically and also internationally, and that really matters within 170 00:11:23,520 --> 00:11:26,880 Speaker 1: the realm of reproductive healthcare and rights. But you know, 171 00:11:27,040 --> 00:11:29,679 Speaker 1: to be clear, this is one of the areas in 172 00:11:29,679 --> 00:11:34,280 Speaker 1: which those who are fundamentally opposed to reproductive health rights 173 00:11:34,280 --> 00:11:37,280 Speaker 1: and justice have been able to score victories. They've been 174 00:11:37,320 --> 00:11:40,160 Speaker 1: able to score victories in state legislatures, and they've been 175 00:11:40,160 --> 00:11:44,120 Speaker 1: able to score victories in federal appellate courts, and they've 176 00:11:44,120 --> 00:11:47,439 Speaker 1: been able to score some measure of victory before the 177 00:11:47,559 --> 00:11:50,720 Speaker 1: United States Supreme Court. One of the things that we 178 00:11:50,800 --> 00:11:54,920 Speaker 1: saw last year in the Supreme Court's ruling in June 179 00:11:55,000 --> 00:12:00,280 Speaker 1: Medicals was that John robert sided with the live rules 180 00:12:00,440 --> 00:12:03,680 Speaker 1: on the court up holding a prior case whole woman's health. 181 00:12:04,480 --> 00:12:07,160 Speaker 1: What was important about that decision is that I think 182 00:12:07,360 --> 00:12:11,080 Speaker 1: John Roberts was looking to make sure that the Court 183 00:12:11,120 --> 00:12:13,960 Speaker 1: could be perceived as one of the rule rules of law, 184 00:12:14,600 --> 00:12:18,959 Speaker 1: one that is not captured by the political whims of 185 00:12:19,000 --> 00:12:21,720 Speaker 1: the day. That was very clear by a number of 186 00:12:21,760 --> 00:12:25,000 Speaker 1: things that he has said in recent years, including making 187 00:12:25,040 --> 00:12:28,240 Speaker 1: statements that there's no such thing as Trump justices or 188 00:12:29,240 --> 00:12:33,240 Speaker 1: or Obama justices, etcetera. And I think what was clear 189 00:12:33,240 --> 00:12:35,480 Speaker 1: about that case is that it was hard to do 190 00:12:35,520 --> 00:12:39,480 Speaker 1: anything differently, given that just a few years before um 191 00:12:39,640 --> 00:12:44,000 Speaker 1: the Supreme Court had a ruling and Whole Woman's Health 192 00:12:44,040 --> 00:12:47,640 Speaker 1: striking down the very same laws being contested in June 193 00:12:47,640 --> 00:12:52,800 Speaker 1: Medical that aside, I think one can't overstate where John 194 00:12:52,920 --> 00:12:57,240 Speaker 1: Roberts is on these questions at all. He is a conservative. 195 00:12:57,240 --> 00:13:00,760 Speaker 1: In this case, he sided with other conservatives on the Court, 196 00:13:01,200 --> 00:13:03,720 Speaker 1: and one can see that this will be a time 197 00:13:04,240 --> 00:13:07,880 Speaker 1: in which those who are committed to ending abortion rights 198 00:13:07,880 --> 00:13:11,800 Speaker 1: and making it difficult even to obtain contraception will continue 199 00:13:11,880 --> 00:13:15,080 Speaker 1: to try to beseech this court for the kinds of 200 00:13:15,120 --> 00:13:17,640 Speaker 1: outcomes they desire. And I think they're happy that Amy 201 00:13:17,679 --> 00:13:20,320 Speaker 1: County Barrett is on the court. Now, what do you 202 00:13:20,360 --> 00:13:23,600 Speaker 1: make of the fact that for months the justices have 203 00:13:23,720 --> 00:13:26,640 Speaker 1: been deliberating whether or not to take a case on 204 00:13:27,240 --> 00:13:32,959 Speaker 1: Mississippi's abortion ban after the fifteenth week of pregnancy. It's 205 00:13:32,960 --> 00:13:37,960 Speaker 1: in conference over and over, right. Well, you know, I 206 00:13:38,000 --> 00:13:41,320 Speaker 1: think that there's a measure of sporting that the Court 207 00:13:41,720 --> 00:13:44,160 Speaker 1: is trying to do. You know what, You know, this 208 00:13:44,280 --> 00:13:48,480 Speaker 1: is a court that is not isolated from the real 209 00:13:48,600 --> 00:13:53,080 Speaker 1: life scenarios that are occurring in our society. You know 210 00:13:53,440 --> 00:13:58,000 Speaker 1: exactly what those deliberations are. I don't have privy to them, 211 00:13:58,040 --> 00:14:03,200 Speaker 1: and most Americans and American professors and lawyers don't have 212 00:14:03,400 --> 00:14:05,960 Speaker 1: privy to those. But I think that they are being 213 00:14:06,000 --> 00:14:09,840 Speaker 1: mindful of what's happening in terms of the political atmosphere 214 00:14:10,280 --> 00:14:14,440 Speaker 1: in the United States. And typically what courts want to 215 00:14:14,559 --> 00:14:20,200 Speaker 1: do is to avoid being entangled, um in legislative matters. 216 00:14:20,240 --> 00:14:24,160 Speaker 1: Where they seek to intervene are in the instances where 217 00:14:24,280 --> 00:14:30,960 Speaker 1: individual liberties have been compromised, where those individual liberties have 218 00:14:31,200 --> 00:14:36,000 Speaker 1: been harmed, and you know, certainly these cases reflect that. 219 00:14:36,520 --> 00:14:39,080 Speaker 1: But I think that they're also mindful that we were 220 00:14:39,120 --> 00:14:45,000 Speaker 1: coming through um a big election and that would shape 221 00:14:45,880 --> 00:14:49,720 Speaker 1: the presidency and that also could shape Congress as well, 222 00:14:50,000 --> 00:14:52,920 Speaker 1: and that in fact has happened. Now. It will be 223 00:14:53,000 --> 00:14:56,480 Speaker 1: interesting to see how the Court moves forward in terms 224 00:14:56,480 --> 00:15:00,320 Speaker 1: of the cases that it will decide to take. I 225 00:15:00,480 --> 00:15:03,880 Speaker 1: also offer one additional thing, which is that as the 226 00:15:04,000 --> 00:15:07,960 Speaker 1: court is considering which case is to take, we are 227 00:15:08,040 --> 00:15:12,720 Speaker 1: seeing cases that challenge um the sort of fundamental norms 228 00:15:12,920 --> 00:15:18,880 Speaker 1: with regard to the very presidential value of Rovi Wade Plan, 229 00:15:19,000 --> 00:15:22,720 Speaker 1: parents who v. Casey and whole woman's health. And we 230 00:15:22,880 --> 00:15:26,240 Speaker 1: see that with the kind of legislation that is coming 231 00:15:26,280 --> 00:15:31,680 Speaker 1: out of states like Indiana uh now um mandating that 232 00:15:31,920 --> 00:15:37,239 Speaker 1: a person vary or cremate the remains after an abortion, 233 00:15:37,560 --> 00:15:40,800 Speaker 1: and and also other ones. I mean, clearly, these are 234 00:15:40,840 --> 00:15:44,440 Speaker 1: what we would frame as targeted regulations of abortion providers, 235 00:15:44,440 --> 00:15:47,720 Speaker 1: These kind of trapped laws that really do seek to 236 00:15:47,800 --> 00:15:51,560 Speaker 1: harm the interests of people who are seeking determinate a pregrency. 237 00:15:51,760 --> 00:15:55,800 Speaker 1: Even though they don't directly interfere. Even though they don't 238 00:15:55,960 --> 00:15:59,800 Speaker 1: directly say that you cannot have an abortion, they do 239 00:16:00,040 --> 00:16:03,120 Speaker 1: create the kinds of burdens and barriers that can make 240 00:16:03,120 --> 00:16:06,920 Speaker 1: it financially difficult to obtain an abortion, or make it 241 00:16:07,040 --> 00:16:11,400 Speaker 1: actually um physically difficult to get into a clinic, or 242 00:16:11,480 --> 00:16:15,320 Speaker 1: make it psychologically difficult because of what the state is 243 00:16:15,480 --> 00:16:19,120 Speaker 1: imposing on a person before she can terminate a pregnancy. 244 00:16:19,160 --> 00:16:22,680 Speaker 1: Thanks Michelle. That's Michelle Goodwin, Professor at the University of 245 00:16:22,720 --> 00:16:26,160 Speaker 1: California Irvine School of Law. Her new book is called 246 00:16:26,200 --> 00:16:31,440 Speaker 1: Policing The womb A Case involving the Boston Marathon bomber 247 00:16:31,800 --> 00:16:34,080 Speaker 1: is going to be pressed and to elect Joe Biden's 248 00:16:34,240 --> 00:16:37,480 Speaker 1: first test about his position on the death penalty. Joining 249 00:16:37,560 --> 00:16:40,880 Speaker 1: me is Bloomberg Law editor Jordan Ruben tell us about 250 00:16:40,960 --> 00:16:47,160 Speaker 1: this late round of federal executions. So this past week, 251 00:16:47,240 --> 00:16:52,160 Speaker 1: the Trump administration carried out its thirteen execution since the 252 00:16:52,200 --> 00:16:56,000 Speaker 1: federal government resumed them in July after a seventeen year break. 253 00:16:56,320 --> 00:16:59,760 Speaker 1: The executions that were carried out after election day during 254 00:16:59,760 --> 00:17:02,000 Speaker 1: the a duck period were the first ones that were 255 00:17:02,000 --> 00:17:05,000 Speaker 1: carried out since the late nineteenth century. So what we've 256 00:17:05,040 --> 00:17:10,000 Speaker 1: seen finish up here is an unprecedented run of federal executions, 257 00:17:10,040 --> 00:17:12,560 Speaker 1: certainly in the modern era. And when it comes to 258 00:17:13,200 --> 00:17:15,919 Speaker 1: lane duck executions, one is not seen in over a 259 00:17:15,960 --> 00:17:19,879 Speaker 1: hundred years, the first federal execution of a woman since 260 00:17:20,000 --> 00:17:23,760 Speaker 1: the nineteen fifties. Tell us about the late night of 261 00:17:24,200 --> 00:17:30,240 Speaker 1: litigation before that. So, as is typical in death penalty 262 00:17:30,280 --> 00:17:32,480 Speaker 1: litigation that's coming to a head at the Supreme Court, 263 00:17:32,800 --> 00:17:35,600 Speaker 1: there will typically be a number of issues that are 264 00:17:35,600 --> 00:17:38,560 Speaker 1: to be sorted out really coming down to the last minute. 265 00:17:38,880 --> 00:17:42,960 Speaker 1: Sometimes that's owing to delays on the defendant's part. Sometimes 266 00:17:43,000 --> 00:17:46,480 Speaker 1: that's owing to delays on the government's part. Because here 267 00:17:46,520 --> 00:17:50,560 Speaker 1: we had a new federal execution protocol that was introduced 268 00:17:50,600 --> 00:17:53,919 Speaker 1: during the Trump administration, and that's what led to many 269 00:17:54,040 --> 00:17:57,840 Speaker 1: of the delays in the litigation. And so in Lisa 270 00:17:57,840 --> 00:18:01,080 Speaker 1: Montgomery's case, as in other cases that we've seen not 271 00:18:01,160 --> 00:18:05,520 Speaker 1: just during these federal executions, but another execution litigation, we 272 00:18:05,600 --> 00:18:10,080 Speaker 1: saw the justices confronted with this late night of decisions 273 00:18:10,119 --> 00:18:12,600 Speaker 1: that the justices had to make in terms of whether 274 00:18:12,640 --> 00:18:15,879 Speaker 1: to let the execution go forward or whether to grant 275 00:18:15,880 --> 00:18:19,640 Speaker 1: the stay. And has happened in all of these federal 276 00:18:19,640 --> 00:18:23,439 Speaker 1: execution cases, the majority of the court sided with the 277 00:18:23,440 --> 00:18:27,959 Speaker 1: Trump administration over dissent from the Democratic appointees on the 278 00:18:28,000 --> 00:18:31,840 Speaker 1: Court that would have granted stays. Have the liberal justices 279 00:18:32,320 --> 00:18:36,400 Speaker 1: been writing dissents, so not necessarily in every case. For example, 280 00:18:36,480 --> 00:18:41,520 Speaker 1: in Leasta Montgomery's case, just the three justices Briar, Kagan 281 00:18:41,560 --> 00:18:45,280 Speaker 1: and Soda Mayor, they only noted their descent. However, in 282 00:18:45,480 --> 00:18:50,639 Speaker 1: the last execution that took place of Dustin Higgs, and 283 00:18:50,680 --> 00:18:55,200 Speaker 1: we saw Justices Soda Mayor and Briar, both right dissents 284 00:18:55,200 --> 00:18:58,479 Speaker 1: really that took stock of this whole run of federal 285 00:18:58,520 --> 00:19:02,359 Speaker 1: executions in various pro problems that they saw with the process. 286 00:19:02,400 --> 00:19:06,119 Speaker 1: We saw Justice Brier, as it has in the past, 287 00:19:06,320 --> 00:19:10,320 Speaker 1: question the constitutionality of the death penalty itself and saying, 288 00:19:10,600 --> 00:19:13,040 Speaker 1: as he predicted in the beginning, that the resumption of 289 00:19:13,080 --> 00:19:16,000 Speaker 1: these federal executions was going to lead to a lot 290 00:19:16,000 --> 00:19:19,520 Speaker 1: of novel legal questions, which he criticized the Majority for 291 00:19:19,560 --> 00:19:23,280 Speaker 1: not resolving and instead letting these executions go forward. Justice 292 00:19:23,320 --> 00:19:26,280 Speaker 1: Soda Mayor took a similar tax and really had some 293 00:19:26,280 --> 00:19:29,439 Speaker 1: strong language for her colleagues in the majority, saying that 294 00:19:29,480 --> 00:19:32,200 Speaker 1: what the Court was doing was not justice and letting 295 00:19:32,200 --> 00:19:36,280 Speaker 1: these executions go forward without resolving the merits of these 296 00:19:36,320 --> 00:19:41,760 Speaker 1: inmates claims. Has the Court stopped an execution in any 297 00:19:41,840 --> 00:19:46,840 Speaker 1: case recently, not really. The last executions stay that I 298 00:19:46,880 --> 00:19:50,960 Speaker 1: can think of came in the case of Reuben Gautierrez, 299 00:19:51,119 --> 00:19:53,720 Speaker 1: a Texas inmate, and that was on the subject that 300 00:19:53,720 --> 00:19:56,639 Speaker 1: we've seen some litigation in at the Court in recent 301 00:19:56,720 --> 00:20:00,080 Speaker 1: years over the ability to have uh faith advice. Is 302 00:20:00,160 --> 00:20:04,120 Speaker 1: there a minister of one's choice in the execution chamber, 303 00:20:04,560 --> 00:20:08,399 Speaker 1: and so based on that claim, the justice had stayed 304 00:20:08,560 --> 00:20:11,800 Speaker 1: his execution, and that case is still playing out, and 305 00:20:11,800 --> 00:20:15,080 Speaker 1: it's actually back at the Supreme Court after some more 306 00:20:15,520 --> 00:20:20,080 Speaker 1: litigation in the lower courts. And remember before that stay, 307 00:20:20,119 --> 00:20:23,840 Speaker 1: there was different conclusions that the justices came to, and 308 00:20:23,880 --> 00:20:27,120 Speaker 1: some people saw disparities, for example, in the way that 309 00:20:27,600 --> 00:20:31,679 Speaker 1: Muslim inmate was treated, who did not get to have 310 00:20:31,880 --> 00:20:34,879 Speaker 1: his a mom into chamber with him when he was executed, 311 00:20:34,920 --> 00:20:38,200 Speaker 1: as opposed to different action that the court took in 312 00:20:38,480 --> 00:20:41,560 Speaker 1: other cases. And so that's the latest in that genre 313 00:20:41,600 --> 00:20:44,320 Speaker 1: of cases of having a minister of one's choosing in 314 00:20:44,359 --> 00:20:48,000 Speaker 1: the execution chamber. But generally when it comes to the 315 00:20:48,040 --> 00:20:53,119 Speaker 1: merits of whether an execution can go forward eventually, really 316 00:20:53,160 --> 00:20:55,960 Speaker 1: the majority of the court anyway has not recently been 317 00:20:56,000 --> 00:20:59,760 Speaker 1: siding with any inmates. There was a lot of controversy 318 00:20:59,760 --> 00:21:04,960 Speaker 1: about the protocol for lethal injection. Has that all been settled? 319 00:21:05,920 --> 00:21:08,760 Speaker 1: It hasn't. That's one of the many questions that was 320 00:21:09,240 --> 00:21:12,240 Speaker 1: left open by the court and really unresolved. So it's 321 00:21:12,240 --> 00:21:15,320 Speaker 1: been settled in the sense that the government's position has 322 00:21:15,359 --> 00:21:19,359 Speaker 1: been effectively upheld by a majority of the Supreme Court, 323 00:21:19,680 --> 00:21:23,440 Speaker 1: but there have been numerous lower court trial court rulings 324 00:21:23,480 --> 00:21:26,159 Speaker 1: that have been up ended and not allowed to go 325 00:21:26,280 --> 00:21:29,040 Speaker 1: forward for it to really be tested to what extent 326 00:21:29,520 --> 00:21:33,639 Speaker 1: that the government's protocol violates the Eighth Amendments ban on 327 00:21:33,800 --> 00:21:37,360 Speaker 1: cool and unusual punishment. So there have been some litigation 328 00:21:37,440 --> 00:21:39,880 Speaker 1: that's played out in the lower courts, but on that 329 00:21:40,240 --> 00:21:44,240 Speaker 1: issue and a bunch of others. That's what Justice Soda 330 00:21:44,280 --> 00:21:47,840 Speaker 1: Mayor and Justice Brier we're complaining about in Descent, which 331 00:21:47,880 --> 00:21:50,600 Speaker 1: is that many of these claims just haven't really been 332 00:21:50,680 --> 00:21:53,560 Speaker 1: tested and fully litigated as much as they should be 333 00:21:53,560 --> 00:21:58,080 Speaker 1: before deciding on this important issue, and so the litigation 334 00:21:58,080 --> 00:22:01,000 Speaker 1: has been kind of short circus it in a way 335 00:22:01,080 --> 00:22:04,280 Speaker 1: in order to allow the executions to go forward. But 336 00:22:04,320 --> 00:22:06,439 Speaker 1: that's part of a pattern that we've been seeing in 337 00:22:06,480 --> 00:22:10,080 Speaker 1: these capital cases, not just starting this year, but certainly 338 00:22:10,119 --> 00:22:13,879 Speaker 1: it's been magnified this year with all these executions coming 339 00:22:14,280 --> 00:22:17,480 Speaker 1: one after another from the federal government. So what is 340 00:22:17,560 --> 00:22:23,359 Speaker 1: Joe Biden's position on capital punishment. Joe Biden, after having 341 00:22:23,440 --> 00:22:27,200 Speaker 1: been as a senator, really tough on crime politician who's 342 00:22:27,240 --> 00:22:30,600 Speaker 1: supported the death penalty, and during the Obama administration, when 343 00:22:30,600 --> 00:22:35,399 Speaker 1: he was vice president, Certainly they oversaw capital prosecutions and 344 00:22:35,400 --> 00:22:38,760 Speaker 1: did not commute death row sentences. He now said that 345 00:22:38,840 --> 00:22:42,439 Speaker 1: he's wanting to eliminate the death penalty completely. Now he 346 00:22:42,480 --> 00:22:45,199 Speaker 1: hasn't laid out exactly what he's going to do to 347 00:22:45,240 --> 00:22:47,640 Speaker 1: try and accomplish that. We'll have to wait and see 348 00:22:47,680 --> 00:22:49,359 Speaker 1: a bit. But he has said that he wants to 349 00:22:49,800 --> 00:22:55,280 Speaker 1: support legislation ending the death penalty and supporting states to 350 00:22:55,600 --> 00:22:58,359 Speaker 1: do so as well, so easily saying that he's against 351 00:22:58,440 --> 00:23:01,200 Speaker 1: the death penalty, and we'll have to see what specific 352 00:23:01,240 --> 00:23:06,080 Speaker 1: action he's going to take. So Jordan's he doesn't need legislation, 353 00:23:06,160 --> 00:23:08,679 Speaker 1: does he? He can just stop the death penalty the 354 00:23:08,760 --> 00:23:13,000 Speaker 1: same way that President Trump and Attorney General William Barr 355 00:23:13,400 --> 00:23:17,359 Speaker 1: restarted the death penalty. Well, it depends exactly what he 356 00:23:17,400 --> 00:23:20,040 Speaker 1: wants to accomplish. Certainly, he has the right not to 357 00:23:20,119 --> 00:23:23,760 Speaker 1: carry out executions while he's the president, and that was 358 00:23:23,800 --> 00:23:27,880 Speaker 1: the case when he was vice president during the Obama administration. However, 359 00:23:28,200 --> 00:23:31,840 Speaker 1: what antideath penalty activists are saying when they point to 360 00:23:31,880 --> 00:23:34,359 Speaker 1: that period, they say, if all you do is not 361 00:23:34,480 --> 00:23:38,320 Speaker 1: carry out executions, that allows for President life President Trum 362 00:23:38,560 --> 00:23:41,000 Speaker 1: to then resume them. And so what some people are 363 00:23:41,000 --> 00:23:44,919 Speaker 1: calling on President Biden to do when he takes office 364 00:23:45,280 --> 00:23:48,679 Speaker 1: is commute all of the existing death row sentences to 365 00:23:48,760 --> 00:23:52,360 Speaker 1: life so that a future president can't carry out these executions. 366 00:23:52,520 --> 00:23:54,960 Speaker 1: And they want him to dismantle the death Chamber to 367 00:23:55,080 --> 00:23:58,120 Speaker 1: again make it more difficult for a future president inclined 368 00:23:58,160 --> 00:24:01,600 Speaker 1: to resume them to then carry amount. So they're not 369 00:24:01,680 --> 00:24:05,000 Speaker 1: a fan of what happened during the Obama administration, even 370 00:24:05,000 --> 00:24:06,920 Speaker 1: if at first glance it seems like they might be. 371 00:24:06,920 --> 00:24:10,680 Speaker 1: Because no executions were carried out. They're saying, that's not enough. 372 00:24:10,760 --> 00:24:13,359 Speaker 1: You have to stop this so a future president can't 373 00:24:13,400 --> 00:24:17,199 Speaker 1: do what President Trump did. So now entering into this 374 00:24:17,320 --> 00:24:22,080 Speaker 1: picture is the case of johars Or Nayev, known as 375 00:24:22,119 --> 00:24:26,040 Speaker 1: the Marathon bomber. The jury did give him the death penalty. 376 00:24:26,119 --> 00:24:29,960 Speaker 1: Tell us what has happened since then? Sure, so, this 377 00:24:30,119 --> 00:24:34,240 Speaker 1: past summer, an appeals court vacated his death sentence. Is 378 00:24:34,280 --> 00:24:38,000 Speaker 1: not his conviction, just his his best sentences, on the 379 00:24:38,040 --> 00:24:42,000 Speaker 1: grounds that the judge didn't do enough to screen potential 380 00:24:42,080 --> 00:24:45,160 Speaker 1: jurors for pre trial publicity bias. And so the appeals 381 00:24:45,200 --> 00:24:49,000 Speaker 1: court vacated his death sentences and affirms his life sentences. 382 00:24:49,040 --> 00:24:52,439 Speaker 1: So the defending is going to die in prison either way. 383 00:24:52,720 --> 00:24:55,320 Speaker 1: But now the government is in a position where those 384 00:24:55,480 --> 00:24:59,359 Speaker 1: best sentences are apended, and so the Justice Department, while 385 00:24:59,400 --> 00:25:03,359 Speaker 1: President was still president, appealed to the Supreme Court in 386 00:25:03,440 --> 00:25:07,000 Speaker 1: trying to reinstate those death sentences, and that petition is 387 00:25:07,040 --> 00:25:11,199 Speaker 1: still pending at the court right now. So this was 388 00:25:11,640 --> 00:25:17,119 Speaker 1: one of the most important terrorism prosecutions that we've seen 389 00:25:17,280 --> 00:25:22,200 Speaker 1: in recent years. Do people think that might change what 390 00:25:22,320 --> 00:25:27,720 Speaker 1: a Biden administration might do about it? Well, that's the question. 391 00:25:27,880 --> 00:25:30,760 Speaker 1: If Joe Biden is against the death penalty, then he 392 00:25:30,800 --> 00:25:32,800 Speaker 1: has to be against the death penalty, right. It can't 393 00:25:32,800 --> 00:25:35,840 Speaker 1: be used just when it's really bad. And so we'll 394 00:25:35,880 --> 00:25:38,720 Speaker 1: have to see what exactly Joe Biden means when he 395 00:25:38,760 --> 00:25:41,200 Speaker 1: says he's against the death penalty now. And so this 396 00:25:41,240 --> 00:25:45,320 Speaker 1: case prevents really an important test at the beginning of 397 00:25:45,359 --> 00:25:48,880 Speaker 1: his administration for whether he's truly against the death penalty. 398 00:25:49,359 --> 00:25:54,280 Speaker 1: Is there a complicating factor? Merrick Garland is going to 399 00:25:54,320 --> 00:25:58,240 Speaker 1: be most likely the next Attorney General and he was 400 00:25:58,320 --> 00:26:02,800 Speaker 1: involved in the prosecution of Timothy McVeigh and the death 401 00:26:02,800 --> 00:26:06,280 Speaker 1: penalty was carried out there. I believe right. And so 402 00:26:06,400 --> 00:26:10,160 Speaker 1: the question then is what type of influence is Mark 403 00:26:10,280 --> 00:26:13,800 Speaker 1: Arland going to have during the Biden administration? And really 404 00:26:13,840 --> 00:26:17,720 Speaker 1: another question is what is Mark Arland's position now having 405 00:26:17,800 --> 00:26:21,240 Speaker 1: undergone this sort of evolution that Joe Biden has undergone. 406 00:26:21,480 --> 00:26:23,280 Speaker 1: And so that's just yet another thing that will have 407 00:26:23,400 --> 00:26:26,280 Speaker 1: to wait and see how that plays out during the administration. 408 00:26:27,119 --> 00:26:29,679 Speaker 1: I know the Trump administration is trying to get the 409 00:26:29,680 --> 00:26:35,520 Speaker 1: death penalty reinstated against Sarnaiev. Are there other people who 410 00:26:35,520 --> 00:26:38,399 Speaker 1: are pushing that as well? As? You know, the families 411 00:26:38,440 --> 00:26:41,720 Speaker 1: of the victims were very vocal in that trial, and 412 00:26:41,760 --> 00:26:44,439 Speaker 1: I'm wondering if they are also pushing to get the 413 00:26:44,480 --> 00:26:49,840 Speaker 1: death penalty reinstated. Well, it's an interesting thing because in 414 00:26:49,920 --> 00:26:52,760 Speaker 1: every case, all of the victims won't necessarily feel the 415 00:26:52,800 --> 00:26:56,920 Speaker 1: same way. And so in talking to people for this story, 416 00:26:57,480 --> 00:27:00,639 Speaker 1: the community and the victims and the families are potentially 417 00:27:00,680 --> 00:27:03,359 Speaker 1: of two minds of what they want to happen here, 418 00:27:03,400 --> 00:27:06,560 Speaker 1: it seems that a common thread is that what people 419 00:27:06,560 --> 00:27:10,280 Speaker 1: don't want is to be reliving this tragedy every day, 420 00:27:10,320 --> 00:27:12,960 Speaker 1: with it being in the news again every day. If 421 00:27:13,080 --> 00:27:15,680 Speaker 1: the year is going to be another death penalty trial, 422 00:27:15,760 --> 00:27:19,080 Speaker 1: and so that doesn't necessarily lead to what the answer 423 00:27:19,119 --> 00:27:21,679 Speaker 1: should be, because one way for there not to be 424 00:27:21,720 --> 00:27:25,439 Speaker 1: another trial is potentially for Joe Biden to not pursue 425 00:27:25,440 --> 00:27:27,640 Speaker 1: the death company. And then the question, though, is whether 426 00:27:27,720 --> 00:27:32,080 Speaker 1: that's going to satisfy all the victims and families. Probably not. 427 00:27:32,760 --> 00:27:35,320 Speaker 1: But though it seems that no matter what is done here, 428 00:27:35,320 --> 00:27:37,840 Speaker 1: there's probably going to be some people who aren't happy 429 00:27:37,880 --> 00:27:41,320 Speaker 1: with what happens, which is usually the case in definitalty cases. 430 00:27:41,800 --> 00:27:44,399 Speaker 1: Does it seem as if the justices are waiting to 431 00:27:44,560 --> 00:27:48,840 Speaker 1: decide about this Arnayev case until Biden has a chance 432 00:27:48,880 --> 00:27:52,760 Speaker 1: to take office and they see what shakes out. I 433 00:27:52,800 --> 00:27:54,520 Speaker 1: think that there is a decent chance that that is 434 00:27:54,560 --> 00:27:57,760 Speaker 1: what's happening. I think you don't need to convince the 435 00:27:57,840 --> 00:28:01,800 Speaker 1: justices to put off deciding potentially contentious issue, and so 436 00:28:02,119 --> 00:28:05,159 Speaker 1: I think they're always happy to push something off, especially 437 00:28:05,160 --> 00:28:08,200 Speaker 1: if it's going to be controversial, And in this instance, 438 00:28:08,240 --> 00:28:11,720 Speaker 1: they might have had the added reason that perhaps they 439 00:28:12,040 --> 00:28:14,359 Speaker 1: read the papers and they know that Joe Biden is 440 00:28:14,359 --> 00:28:17,120 Speaker 1: against the death penalty, and perhaps are thinking, let's see 441 00:28:17,160 --> 00:28:21,600 Speaker 1: if the new Justice Department takes a different position instead 442 00:28:21,600 --> 00:28:25,040 Speaker 1: of granting the case and then potentially having to dismiss 443 00:28:25,080 --> 00:28:26,639 Speaker 1: it later on. So it could be a matter of 444 00:28:26,920 --> 00:28:30,080 Speaker 1: economy on their part and waiting to see what happens 445 00:28:30,119 --> 00:28:34,280 Speaker 1: if the Biden administration does change its position. I mean, 446 00:28:34,280 --> 00:28:36,440 Speaker 1: there's nothing that the Supreme Court can do about that. 447 00:28:36,480 --> 00:28:40,400 Speaker 1: They don't like it, but it's happened before. Exactly. It's 448 00:28:40,520 --> 00:28:44,360 Speaker 1: the prerogative of the executive to change its position. The 449 00:28:44,480 --> 00:28:47,680 Speaker 1: justices aren't happy about that because they look to the 450 00:28:47,760 --> 00:28:52,040 Speaker 1: Solicitor General's office. That's the Justice Department's topplayer at the Court, 451 00:28:52,080 --> 00:28:55,880 Speaker 1: the Solicitor General as someone who's not just another party 452 00:28:55,920 --> 00:28:58,680 Speaker 1: to litigation, but someone who they can trust and ask 453 00:28:58,760 --> 00:29:01,240 Speaker 1: them what their position is. And so of course, if 454 00:29:01,240 --> 00:29:03,480 Speaker 1: you're a Supreme Court justice, you want that position to 455 00:29:03,520 --> 00:29:07,040 Speaker 1: be consistent. But that's just not always the case. There's 456 00:29:07,080 --> 00:29:10,040 Speaker 1: new administrations that come in and they have new priorities, 457 00:29:10,080 --> 00:29:13,680 Speaker 1: and so in this case and probably a bunch of others, 458 00:29:13,680 --> 00:29:16,640 Speaker 1: there's going to be a new position when Joe Biden 459 00:29:16,720 --> 00:29:20,840 Speaker 1: comes into office. You hear a lot about anti death 460 00:29:20,880 --> 00:29:24,800 Speaker 1: penalty advocates and groups. Are there any groups that are 461 00:29:25,280 --> 00:29:28,800 Speaker 1: acting pro death penalty? Well, for the past year, the 462 00:29:28,840 --> 00:29:32,760 Speaker 1: Justice Department has and that's been enough to outweigh really 463 00:29:32,800 --> 00:29:35,959 Speaker 1: any activist group, because the government is the one that 464 00:29:36,280 --> 00:29:38,720 Speaker 1: has the power here. But to your point, I think 465 00:29:39,320 --> 00:29:42,880 Speaker 1: it can be that the anti death penalty groups perhaps 466 00:29:42,880 --> 00:29:46,480 Speaker 1: have been more outspoken, and it could just be the 467 00:29:46,480 --> 00:29:50,320 Speaker 1: people who support capital punishment don't have necessarily that same 468 00:29:50,720 --> 00:29:54,480 Speaker 1: mobilization for an outside group. But what they do have, 469 00:29:54,800 --> 00:29:57,160 Speaker 1: at least for this past year, has been the federal 470 00:29:57,160 --> 00:30:00,600 Speaker 1: government itself and going back further in which will continue, 471 00:30:00,640 --> 00:30:04,200 Speaker 1: people in state governments that still carry out executions, and 472 00:30:04,600 --> 00:30:07,720 Speaker 1: a majority of the Supreme Court. So the support where 473 00:30:08,080 --> 00:30:11,440 Speaker 1: it counts, if you're a proponent of capital punishment, would 474 00:30:11,440 --> 00:30:13,720 Speaker 1: be where you want it to be, as opposed to 475 00:30:14,080 --> 00:30:16,800 Speaker 1: pass being part of an organization that is not going 476 00:30:16,880 --> 00:30:20,920 Speaker 1: to actually sway the eventual outcome. There was a lot 477 00:30:20,960 --> 00:30:25,960 Speaker 1: of controversy about the protocol for lethal injection. Has that 478 00:30:26,040 --> 00:30:29,640 Speaker 1: all been settled? It hasn't. That's one of the many 479 00:30:30,040 --> 00:30:33,840 Speaker 1: questions that was left open by the court and really unresolved. 480 00:30:33,920 --> 00:30:37,040 Speaker 1: So it's been settled in the sense that the government's 481 00:30:37,080 --> 00:30:41,000 Speaker 1: position has been effectively upheld by a majority of the 482 00:30:41,040 --> 00:30:44,520 Speaker 1: Supreme Court, But there have been numerous lower court trial 483 00:30:44,600 --> 00:30:48,360 Speaker 1: court rulings that have been up ended and not allowed 484 00:30:48,360 --> 00:30:50,840 Speaker 1: to go forward for it to really be tested to 485 00:30:50,880 --> 00:30:55,640 Speaker 1: what extent that the government's protocol violates the Eighth Amendments 486 00:30:55,680 --> 00:30:58,680 Speaker 1: ban on cool and unusual punishment. So there have been 487 00:30:58,720 --> 00:31:01,840 Speaker 1: some litigation that's played out in the lower courts, but 488 00:31:01,920 --> 00:31:05,560 Speaker 1: on that issue and a bunch of others, that's what 489 00:31:06,040 --> 00:31:09,800 Speaker 1: Justice Soda Mayor and Justice Brier we're complaining about in Descent, 490 00:31:10,040 --> 00:31:12,480 Speaker 1: which is that many of these claims just haven't really 491 00:31:12,840 --> 00:31:15,720 Speaker 1: been tested and fully litigated as much as they should 492 00:31:15,720 --> 00:31:19,960 Speaker 1: be before deciding on this important issue, and so the 493 00:31:20,000 --> 00:31:23,400 Speaker 1: litigation has been kind of short circuited in a way 494 00:31:23,520 --> 00:31:26,680 Speaker 1: in order to allow the executions to go forward. But 495 00:31:26,720 --> 00:31:28,840 Speaker 1: that's part of a pattern that we've been seeing in 496 00:31:28,880 --> 00:31:32,480 Speaker 1: these capital cases, not just starting this year, but certainly 497 00:31:32,520 --> 00:31:36,280 Speaker 1: it's been magnified this year with all these executions coming 498 00:31:36,680 --> 00:31:39,520 Speaker 1: one after another from the federal government. Thanks for being 499 00:31:39,520 --> 00:31:43,120 Speaker 1: on the Bloomberg Law Show. Jordan's that's Jordan Reuben, Bloomberg 500 00:31:43,200 --> 00:31:46,040 Speaker 1: Law Editor, And that's it for this edition of the 501 00:31:46,040 --> 00:31:49,200 Speaker 1: Bloomberg Law Show. Remember you can always get the latest 502 00:31:49,240 --> 00:31:52,240 Speaker 1: legal news on our Bloomberg Law podcasts. You can find 503 00:31:52,280 --> 00:31:56,960 Speaker 1: them on Apple Podcasts, Spotify, or at www dot bloomberg 504 00:31:57,040 --> 00:32:01,160 Speaker 1: dot com, slash podcast, Slash law I June Grasso, thanks 505 00:32:01,160 --> 00:32:03,880 Speaker 1: so much for listening. Please tune into The Bloomberg Glass 506 00:32:03,880 --> 00:32:06,480 Speaker 1: Show every week night at ten pm Eastern right here 507 00:32:06,480 --> 00:32:07,440 Speaker 1: onto the Berg Radio