Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: The Supreme Court has reinstated a requirement that women visit
Speaker 1: a medical facility to obtain abortion inducing pills. In a
Speaker 1: six to three vote, the Court granted a Trump administration
Speaker 1: request to end the mail deliveries a judge had allowed
Speaker 1: during the coronavirus pandemic. The order, which came over three
Speaker 1: descents by the liberal justices, marks a shift for the
Speaker 1: Court that let mail deliveries continue temporarily in October, before
Speaker 1: Justice Amy Coney Barrett had joined the court. My guest
Speaker 1: is Michelle Goodwin, a professor at the University of California
Speaker 1: Irvine School of Law. Her latest book is entitled Policing
Speaker 1: the Womb. Tell us a little bit about the background
Speaker 1: of this case. This case Food and Drug Administration versus
Speaker 1: the American College of Obstetricians and Gynecologists is a case
Speaker 1: that reflects COVID nineteen in many ways. So during this
Speaker 1: period of coronavirus pandemic and people sheltering in place, the
Speaker 1: SBA has waived in person requirements generally or a number
Speaker 1: of drugs, including certain controlled substances, but they have not
Speaker 1: done it for miss A press stone, which is a
Speaker 1: drug that's used during um to achieve an abortion for
Speaker 1: individuals who are within the first two weeks of pregnancy
Speaker 1: during COVID. For the first period of it, women did
Speaker 1: not have to go to a number states. Women did
Speaker 1: not have to go to a clinic in order to
Speaker 1: pick up this medication, which the FDA has wanted women
Speaker 1: to do. Federal court blocked that when it was challenged.
Speaker 1: What's interesting here is that the drugs used, and it's
Speaker 1: a two drug combinations. A press stone and ms aprostol
Speaker 1: are the two drugs that are used to achieve a
Speaker 1: medication abortion. What this means is that a person does
Speaker 1: not have to go through a surgery, but instead can
Speaker 1: take these two pills and achieve than a termination of
Speaker 1: the pregnancy at home. Now, this is the only drug
Speaker 1: out of over twenty thousand FDA approved drugs that fb
Speaker 1: A requires to be picked up in person for patients
Speaker 1: to take at home. So, out of more than twenty
Speaker 1: thousand drugs, the FDA has selected just this particular drugs
Speaker 1: where a woman has to or person who wants to
Speaker 1: achieve a pregnancy termination has to pick up in person. Now,
Speaker 1: what's interesting about this is that because it is a
Speaker 1: two drug regiment, even though a person has to go
Speaker 1: out and pick it up, that's not when the termination
Speaker 1: takes place. So the very idea that somehow this is
Speaker 1: promoting patient health and safety really is an illusory concept
Speaker 1: because the person isn't terminating the pregnancy at that time.
Speaker 1: It's actually what the second drug that they're taking while
Speaker 1: they are at home that the termination proceeds. What was
Speaker 1: the question before the court? Now, the question here was
Speaker 1: whether this case posed and undo or what the FDA
Speaker 1: is requiring during a period of pandemic that a person
Speaker 1: leave home to pick up this drug UM and to
Speaker 1: take it in a clinic or hospital or where have you,
Speaker 1: whether that creates an undue burden UM. Many people refer
Speaker 1: to Rowe v. Wade as the case under which abortion
Speaker 1: is is litigated in the United States, but it's really
Speaker 1: planned parenthood. Be Casey, which was a case that was
Speaker 1: about twenty years after Roe b. Waite, where the Supreme
Speaker 1: Court upheld Row and also modified Rose holding, and the
Speaker 1: Court said that it would be unconstitutional for a space
Speaker 1: to impose or government to impose an undue burden on
Speaker 1: the right to be able to terminate a pregnancy. And
Speaker 1: so the question here is what the FDA is requiring
Speaker 1: during a period of pandemic that a person leave home
Speaker 1: to pick up this drug, whether that creates an undue burden?
Speaker 1: So tell us how the Supreme Court ruled. Oh, this
Speaker 1: was a case where um six to three. There were
Speaker 1: Justice Sodomyer, Justice Kagan Um were um in this scent
Speaker 1: along with Brier and Sodomyer and Kagan wrote a decent
Speaker 1: in the case. But the majority, which is comprised of
Speaker 1: conservatives on the Court were the ones that said that
Speaker 1: this is not an undue burden and a In fact,
Speaker 1: what does Roberts thought to do was to even change
Speaker 1: the questions from whether this is an undue burden, and
Speaker 1: he said that that's not the right lens for which
Speaker 1: one should actually be looking at this particular case. And
Speaker 1: that too, one would find a bit of a specious argument,
Speaker 1: because it is actually the standard for which under which
Speaker 1: the Court analyzes abortion law, and undue burden standard. And
Speaker 1: so you see the Court shifting even there in terms
Speaker 1: of how a case such as this should be read.
Speaker 1: Many people are pointing to this and saying, well, this
Speaker 1: is the first case on abortion decided since Amy Coney
Speaker 1: Barrett has been a justice on the Court. But the
Speaker 1: vote was six to three. The Chief voted with the Conservatives.
Speaker 1: So did it really make a difference that Barrett is
Speaker 1: on the court. Well, it does make a difference that
Speaker 1: Barrett is on the court, even if the decision could
Speaker 1: have been five to four decision. And and here is why,
Speaker 1: is that we don't expect the Supreme Court to just
Speaker 1: simply be calling balls and strikes that may happen. And
Speaker 1: that's perhaps, um, the more cynical view of the court.
Speaker 1: And I think that there would be people who would
Speaker 1: be um in their right analysis to be skeptical about
Speaker 1: how some things happen in a court at a time
Speaker 1: in which, um, which abortion has become so deeply politicized.
Speaker 1: But if we were not to be as cynical, and
Speaker 1: if we were to think about the court as a
Speaker 1: place in which jurists are analyzing, communicating and thinking collectively
Speaker 1: through then even at five four, hopefully then that that
Speaker 1: fourth vote would have been one to further try to
Speaker 1: um educate and inform colleagues on the court. You know,
Speaker 1: there's a saying about jurisprudence and exile and the idea
Speaker 1: of being that while you might not have moved your
Speaker 1: colleagues on the Court on a particular day and in
Speaker 1: a particular issue, but what you leave behind in the argumentation,
Speaker 1: what you leave behind in the descent, what you leave
Speaker 1: behind even in a nuanced concurrence, is something that your
Speaker 1: colleagues can ponder over. That as the other justices on
Speaker 1: the Court, can influence um courts in the future. And
Speaker 1: I think that that matters here too, So so I
Speaker 1: would say that it's not just Chief Justice joint on
Speaker 1: and bear it on the court, but that it really
Speaker 1: does matter having a court um that recognize the justice
Speaker 1: issues associated with reproductive health and right. And I'd like
Speaker 1: to add one other thing too to this, which is,
Speaker 1: you know, Justice Robert, in the opinion that he writes,
Speaker 1: he says, my view is that the Court's owe significant
Speaker 1: deference to to the politically accountable entities with the background,
Speaker 1: com potence and expertise to assess public health. And here
Speaker 1: he's talking about the FDA decisions. But here's what's also
Speaker 1: important to note, which is that there are times in
Speaker 1: which America's agencies can be prone to political capture. That
Speaker 1: is to say that people leading those agencies can be
Speaker 1: people who have political points of view that are quite partisan.
Speaker 1: That reflects the individuals who have put them there. So
Speaker 1: it's not to say that agency determinations come about through
Speaker 1: neutral fact finding UM. And in fact, what we know
Speaker 1: is that there has been a history with regard to
Speaker 1: women's health where in fact, the FDA has been quite politicized,
Speaker 1: and how it has made recommendations with regards to drugs
Speaker 1: that women would um take, and we could go through
Speaker 1: a lengthy history of m Max. I'd love to do
Speaker 1: that on your show and just talk about how politicized
Speaker 1: the FDA has been visa the women's health. Let's look forward,
Speaker 1: because there are many constitutional scholars who are looking at
Speaker 1: Amy Cony Barrett on the Court and saying be ready
Speaker 1: for some changes in abortion law. So do you take
Speaker 1: any comfort in the fact that the justices didn't take
Speaker 1: on lower court ruling a third Circuit ruling that allowed
Speaker 1: Pittsburgh's fifteen foot buffer zone around abortion clinics to remain. Well,
Speaker 1: what you're pointing to is that abortion right um are
Speaker 1: a hot button political issue. They've become deeply politicized in
Speaker 1: ways that are partisans and that are quite distinct from
Speaker 1: what they used to be forty fifty years ago in
Speaker 1: the space of Roe v. Wade. I mean, let's keep
Speaker 1: in mind that Roe was the seven to two opinion,
Speaker 1: and that five of the seven justices in support of
Speaker 1: Roe v. Wade were Republican appointed. UM Richard Nixon famously
Speaker 1: talked about family planning as being a basic public health issue.
Speaker 1: It was Prescott Bush, who was the father of George Bush,
Speaker 1: the first President UM, who is the treasurer for planned parenthood.
Speaker 1: So what we see today is actually not a part
Speaker 1: of a Republican legacy UM in the United States, where
Speaker 1: there was a sense of both Democrats and Republicans being
Speaker 1: able to see eye to eye in terms of women's
Speaker 1: reproductive health care and safety as being just basic public
Speaker 1: health and family planning being public health and leave these
Speaker 1: decisions to women and their health care providers. But instead
Speaker 1: these issues have now become mired um in in politics
Speaker 1: and politics in such a way that are not really
Speaker 1: about preserving or promoting women's health or anything like that. UM.
Speaker 1: They've become deeply contested and deeply contested and fundamentalist religious ways.
Speaker 1: That's very clear in terms of what's happening and what's
Speaker 1: being articulated. The future of what these rights look like
Speaker 1: will be heavily dependant upon what this Congress does, what
Speaker 1: this next President, Joe Biden does. UM. The president has
Speaker 1: a significant authority through his the ability to UM, the
Speaker 1: ability to make executive orders that then can be effective
Speaker 1: both domestically and also internationally, and that really matters within
Speaker 1: the realm of reproductive healthcare and rights. But you know,
Speaker 1: to be clear, this is one of the areas in
Speaker 1: which those who are fundamentally opposed to reproductive health rights
Speaker 1: and justice have been able to score victories. They've been
Speaker 1: able to score victories in state legislatures, and they've been
Speaker 1: able to score victories in federal appellate courts, and they've
Speaker 1: been able to score some measure of victory before the
Speaker 1: United States Supreme Court. One of the things that we
Speaker 1: saw last year in the Supreme Court's ruling in June
Speaker 1: Medicals was that John robert sided with the live rules
Speaker 1: on the court up holding a prior case whole woman's health.
Speaker 1: What was important about that decision is that I think
Speaker 1: John Roberts was looking to make sure that the Court
Speaker 1: could be perceived as one of the rule rules of law,
Speaker 1: one that is not captured by the political whims of
Speaker 1: the day. That was very clear by a number of
Speaker 1: things that he has said in recent years, including making
Speaker 1: statements that there's no such thing as Trump justices or
Speaker 1: or Obama justices, etcetera. And I think what was clear
Speaker 1: about that case is that it was hard to do
Speaker 1: anything differently, given that just a few years before um
Speaker 1: the Supreme Court had a ruling and Whole Woman's Health
Speaker 1: striking down the very same laws being contested in June
Speaker 1: Medical that aside, I think one can't overstate where John
Speaker 1: Roberts is on these questions at all. He is a conservative.
Speaker 1: In this case, he sided with other conservatives on the Court,
Speaker 1: and one can see that this will be a time
Speaker 1: in which those who are committed to ending abortion rights
Speaker 1: and making it difficult even to obtain contraception will continue
Speaker 1: to try to beseech this court for the kinds of
Speaker 1: outcomes they desire. And I think they're happy that Amy
Speaker 1: County Barrett is on the court. Now, what do you
Speaker 1: make of the fact that for months the justices have
Speaker 1: been deliberating whether or not to take a case on
Speaker 1: Mississippi's abortion ban after the fifteenth week of pregnancy. It's
Speaker 1: in conference over and over, right. Well, you know, I
Speaker 1: think that there's a measure of sporting that the Court
Speaker 1: is trying to do. You know what, You know, this
Speaker 1: is a court that is not isolated from the real
Speaker 1: life scenarios that are occurring in our society. You know
Speaker 1: exactly what those deliberations are. I don't have privy to them,
Speaker 1: and most Americans and American professors and lawyers don't have
Speaker 1: privy to those. But I think that they are being
Speaker 1: mindful of what's happening in terms of the political atmosphere
Speaker 1: in the United States. And typically what courts want to
Speaker 1: do is to avoid being entangled, um in legislative matters.
Speaker 1: Where they seek to intervene are in the instances where
Speaker 1: individual liberties have been compromised, where those individual liberties have
Speaker 1: been harmed, and you know, certainly these cases reflect that.
Speaker 1: But I think that they're also mindful that we were
Speaker 1: coming through um a big election and that would shape
Speaker 1: the presidency and that also could shape Congress as well,
Speaker 1: and that in fact has happened. Now. It will be
Speaker 1: interesting to see how the Court moves forward in terms
Speaker 1: of the cases that it will decide to take. I
Speaker 1: also offer one additional thing, which is that as the
Speaker 1: court is considering which case is to take, we are
Speaker 1: seeing cases that challenge um the sort of fundamental norms
Speaker 1: with regard to the very presidential value of Rovi Wade Plan,
Speaker 1: parents who v. Casey and whole woman's health. And we
Speaker 1: see that with the kind of legislation that is coming
Speaker 1: out of states like Indiana uh now um mandating that
Speaker 1: a person vary or cremate the remains after an abortion,
Speaker 1: and and also other ones. I mean, clearly, these are
Speaker 1: what we would frame as targeted regulations of abortion providers,
Speaker 1: These kind of trapped laws that really do seek to
Speaker 1: harm the interests of people who are seeking determinate a pregrency.
Speaker 1: Even though they don't directly interfere. Even though they don't
Speaker 1: directly say that you cannot have an abortion, they do
Speaker 1: create the kinds of burdens and barriers that can make
Speaker 1: it financially difficult to obtain an abortion, or make it
Speaker 1: actually um physically difficult to get into a clinic, or
Speaker 1: make it psychologically difficult because of what the state is
Speaker 1: imposing on a person before she can terminate a pregnancy.
Speaker 1: Thanks Michelle. That's Michelle Goodwin, Professor at the University of
Speaker 1: California Irvine School of Law. Her new book is called
Speaker 1: Policing The womb A Case involving the Boston Marathon bomber
Speaker 1: is going to be pressed and to elect Joe Biden's
Speaker 1: first test about his position on the death penalty. Joining
Speaker 1: me is Bloomberg Law editor Jordan Ruben tell us about
Speaker 1: this late round of federal executions. So this past week,
Speaker 1: the Trump administration carried out its thirteen execution since the
Speaker 1: federal government resumed them in July after a seventeen year break.
Speaker 1: The executions that were carried out after election day during
Speaker 1: the a duck period were the first ones that were
Speaker 1: carried out since the late nineteenth century. So what we've
Speaker 1: seen finish up here is an unprecedented run of federal executions,
Speaker 1: certainly in the modern era. And when it comes to
Speaker 1: lane duck executions, one is not seen in over a
Speaker 1: hundred years, the first federal execution of a woman since
Speaker 1: the nineteen fifties. Tell us about the late night of
Speaker 1: litigation before that. So, as is typical in death penalty
Speaker 1: litigation that's coming to a head at the Supreme Court,
Speaker 1: there will typically be a number of issues that are
Speaker 1: to be sorted out really coming down to the last minute.
Speaker 1: Sometimes that's owing to delays on the defendant's part. Sometimes
Speaker 1: that's owing to delays on the government's part. Because here
Speaker 1: we had a new federal execution protocol that was introduced
Speaker 1: during the Trump administration, and that's what led to many
Speaker 1: of the delays in the litigation. And so in Lisa
Speaker 1: Montgomery's case, as in other cases that we've seen not
Speaker 1: just during these federal executions, but another execution litigation, we
Speaker 1: saw the justices confronted with this late night of decisions
Speaker 1: that the justices had to make in terms of whether
Speaker 1: to let the execution go forward or whether to grant
Speaker 1: the stay. And has happened in all of these federal
Speaker 1: execution cases, the majority of the court sided with the
Speaker 1: Trump administration over dissent from the Democratic appointees on the
Speaker 1: Court that would have granted stays. Have the liberal justices
Speaker 1: been writing dissents, so not necessarily in every case. For example,
Speaker 1: in Leasta Montgomery's case, just the three justices Briar, Kagan
Speaker 1: and Soda Mayor, they only noted their descent. However, in
Speaker 1: the last execution that took place of Dustin Higgs, and
Speaker 1: we saw Justices Soda Mayor and Briar, both right dissents
Speaker 1: really that took stock of this whole run of federal
Speaker 1: executions in various pro problems that they saw with the process.
Speaker 1: We saw Justice Brier, as it has in the past,
Speaker 1: question the constitutionality of the death penalty itself and saying,
Speaker 1: as he predicted in the beginning, that the resumption of
Speaker 1: these federal executions was going to lead to a lot
Speaker 1: of novel legal questions, which he criticized the Majority for
Speaker 1: not resolving and instead letting these executions go forward. Justice
Speaker 1: Soda Mayor took a similar tax and really had some
Speaker 1: strong language for her colleagues in the majority, saying that
Speaker 1: what the Court was doing was not justice and letting
Speaker 1: these executions go forward without resolving the merits of these
Speaker 1: inmates claims. Has the Court stopped an execution in any
Speaker 1: case recently, not really. The last executions stay that I
Speaker 1: can think of came in the case of Reuben Gautierrez,
Speaker 1: a Texas inmate, and that was on the subject that
Speaker 1: we've seen some litigation in at the Court in recent
Speaker 1: years over the ability to have uh faith advice. Is
Speaker 1: there a minister of one's choice in the execution chamber,
Speaker 1: and so based on that claim, the justice had stayed
Speaker 1: his execution, and that case is still playing out, and
Speaker 1: it's actually back at the Supreme Court after some more
Speaker 1: litigation in the lower courts. And remember before that stay,
Speaker 1: there was different conclusions that the justices came to, and
Speaker 1: some people saw disparities, for example, in the way that
Speaker 1: Muslim inmate was treated, who did not get to have
Speaker 1: his a mom into chamber with him when he was executed,
Speaker 1: as opposed to different action that the court took in
Speaker 1: other cases. And so that's the latest in that genre
Speaker 1: of cases of having a minister of one's choosing in
Speaker 1: the execution chamber. But generally when it comes to the
Speaker 1: merits of whether an execution can go forward eventually, really
Speaker 1: the majority of the court anyway has not recently been
Speaker 1: siding with any inmates. There was a lot of controversy
Speaker 1: about the protocol for lethal injection. Has that all been settled?
Speaker 1: It hasn't. That's one of the many questions that was
Speaker 1: left open by the court and really unresolved. So it's
Speaker 1: been settled in the sense that the government's position has
Speaker 1: been effectively upheld by a majority of the Supreme Court,
Speaker 1: but there have been numerous lower court trial court rulings
Speaker 1: that have been up ended and not allowed to go
Speaker 1: forward for it to really be tested to what extent
Speaker 1: that the government's protocol violates the Eighth Amendments ban on
Speaker 1: cool and unusual punishment. So there have been some litigation
Speaker 1: that's played out in the lower courts, but on that
Speaker 1: issue and a bunch of others. That's what Justice Soda
Speaker 1: Mayor and Justice Brier we're complaining about in Descent, which
Speaker 1: is that many of these claims just haven't really been
Speaker 1: tested and fully litigated as much as they should be
Speaker 1: before deciding on this important issue, and so the litigation
Speaker 1: has been kind of short circus it in a way
Speaker 1: in order to allow the executions to go forward. But
Speaker 1: that's part of a pattern that we've been seeing in
Speaker 1: these capital cases, not just starting this year, but certainly
Speaker 1: it's been magnified this year with all these executions coming
Speaker 1: one after another from the federal government. So what is
Speaker 1: Joe Biden's position on capital punishment. Joe Biden, after having
Speaker 1: been as a senator, really tough on crime politician who's
Speaker 1: supported the death penalty, and during the Obama administration, when
Speaker 1: he was vice president, Certainly they oversaw capital prosecutions and
Speaker 1: did not commute death row sentences. He now said that
Speaker 1: he's wanting to eliminate the death penalty completely. Now he
Speaker 1: hasn't laid out exactly what he's going to do to
Speaker 1: try and accomplish that. We'll have to wait and see
Speaker 1: a bit. But he has said that he wants to
Speaker 1: support legislation ending the death penalty and supporting states to
Speaker 1: do so as well, so easily saying that he's against
Speaker 1: the death penalty, and we'll have to see what specific
Speaker 1: action he's going to take. So Jordan's he doesn't need legislation,
Speaker 1: does he? He can just stop the death penalty the
Speaker 1: same way that President Trump and Attorney General William Barr
Speaker 1: restarted the death penalty. Well, it depends exactly what he
Speaker 1: wants to accomplish. Certainly, he has the right not to
Speaker 1: carry out executions while he's the president, and that was
Speaker 1: the case when he was vice president during the Obama administration. However,
Speaker 1: what antideath penalty activists are saying when they point to
Speaker 1: that period, they say, if all you do is not
Speaker 1: carry out executions, that allows for President life President Trum
Speaker 1: to then resume them. And so what some people are
Speaker 1: calling on President Biden to do when he takes office
Speaker 1: is commute all of the existing death row sentences to
Speaker 1: life so that a future president can't carry out these executions.
Speaker 1: And they want him to dismantle the death Chamber to
Speaker 1: again make it more difficult for a future president inclined
Speaker 1: to resume them to then carry amount. So they're not
Speaker 1: a fan of what happened during the Obama administration, even
Speaker 1: if at first glance it seems like they might be.
Speaker 1: Because no executions were carried out. They're saying, that's not enough.
Speaker 1: You have to stop this so a future president can't
Speaker 1: do what President Trump did. So now entering into this
Speaker 1: picture is the case of johars Or Nayev, known as
Speaker 1: the Marathon bomber. The jury did give him the death penalty.
Speaker 1: Tell us what has happened since then? Sure, so, this
Speaker 1: past summer, an appeals court vacated his death sentence. Is
Speaker 1: not his conviction, just his his best sentences, on the
Speaker 1: grounds that the judge didn't do enough to screen potential
Speaker 1: jurors for pre trial publicity bias. And so the appeals
Speaker 1: court vacated his death sentences and affirms his life sentences.
Speaker 1: So the defending is going to die in prison either way.
Speaker 1: But now the government is in a position where those
Speaker 1: best sentences are apended, and so the Justice Department, while
Speaker 1: President was still president, appealed to the Supreme Court in
Speaker 1: trying to reinstate those death sentences, and that petition is
Speaker 1: still pending at the court right now. So this was
Speaker 1: one of the most important terrorism prosecutions that we've seen
Speaker 1: in recent years. Do people think that might change what
Speaker 1: a Biden administration might do about it? Well, that's the question.
Speaker 1: If Joe Biden is against the death penalty, then he
Speaker 1: has to be against the death penalty, right. It can't
Speaker 1: be used just when it's really bad. And so we'll
Speaker 1: have to see what exactly Joe Biden means when he
Speaker 1: says he's against the death penalty now. And so this
Speaker 1: case prevents really an important test at the beginning of
Speaker 1: his administration for whether he's truly against the death penalty.
Speaker 1: Is there a complicating factor? Merrick Garland is going to
Speaker 1: be most likely the next Attorney General and he was
Speaker 1: involved in the prosecution of Timothy McVeigh and the death
Speaker 1: penalty was carried out there. I believe right. And so
Speaker 1: the question then is what type of influence is Mark
Speaker 1: Arland going to have during the Biden administration? And really
Speaker 1: another question is what is Mark Arland's position now having
Speaker 1: undergone this sort of evolution that Joe Biden has undergone.
Speaker 1: And so that's just yet another thing that will have
Speaker 1: to wait and see how that plays out during the administration.
Speaker 1: I know the Trump administration is trying to get the
Speaker 1: death penalty reinstated against Sarnaiev. Are there other people who
Speaker 1: are pushing that as well? As? You know, the families
Speaker 1: of the victims were very vocal in that trial, and
Speaker 1: I'm wondering if they are also pushing to get the
Speaker 1: death penalty reinstated. Well, it's an interesting thing because in
Speaker 1: every case, all of the victims won't necessarily feel the
Speaker 1: same way. And so in talking to people for this story,
Speaker 1: the community and the victims and the families are potentially
Speaker 1: of two minds of what they want to happen here,
Speaker 1: it seems that a common thread is that what people
Speaker 1: don't want is to be reliving this tragedy every day,
Speaker 1: with it being in the news again every day. If
Speaker 1: the year is going to be another death penalty trial,
Speaker 1: and so that doesn't necessarily lead to what the answer
Speaker 1: should be, because one way for there not to be
Speaker 1: another trial is potentially for Joe Biden to not pursue
Speaker 1: the death company. And then the question, though, is whether
Speaker 1: that's going to satisfy all the victims and families. Probably not.
Speaker 1: But though it seems that no matter what is done here,
Speaker 1: there's probably going to be some people who aren't happy
Speaker 1: with what happens, which is usually the case in definitalty cases.
Speaker 1: Does it seem as if the justices are waiting to
Speaker 1: decide about this Arnayev case until Biden has a chance
Speaker 1: to take office and they see what shakes out. I
Speaker 1: think that there is a decent chance that that is
Speaker 1: what's happening. I think you don't need to convince the
Speaker 1: justices to put off deciding potentially contentious issue, and so
Speaker 1: I think they're always happy to push something off, especially
Speaker 1: if it's going to be controversial, And in this instance,
Speaker 1: they might have had the added reason that perhaps they
Speaker 1: read the papers and they know that Joe Biden is
Speaker 1: against the death penalty, and perhaps are thinking, let's see
Speaker 1: if the new Justice Department takes a different position instead
Speaker 1: of granting the case and then potentially having to dismiss
Speaker 1: it later on. So it could be a matter of
Speaker 1: economy on their part and waiting to see what happens
Speaker 1: if the Biden administration does change its position. I mean,
Speaker 1: there's nothing that the Supreme Court can do about that.
Speaker 1: They don't like it, but it's happened before. Exactly. It's
Speaker 1: the prerogative of the executive to change its position. The
Speaker 1: justices aren't happy about that because they look to the
Speaker 1: Solicitor General's office. That's the Justice Department's topplayer at the Court,
Speaker 1: the Solicitor General as someone who's not just another party
Speaker 1: to litigation, but someone who they can trust and ask
Speaker 1: them what their position is. And so of course, if
Speaker 1: you're a Supreme Court justice, you want that position to
Speaker 1: be consistent. But that's just not always the case. There's
Speaker 1: new administrations that come in and they have new priorities,
Speaker 1: and so in this case and probably a bunch of others,
Speaker 1: there's going to be a new position when Joe Biden
Speaker 1: comes into office. You hear a lot about anti death
Speaker 1: penalty advocates and groups. Are there any groups that are
Speaker 1: acting pro death penalty? Well, for the past year, the
Speaker 1: Justice Department has and that's been enough to outweigh really
Speaker 1: any activist group, because the government is the one that
Speaker 1: has the power here. But to your point, I think
Speaker 1: it can be that the anti death penalty groups perhaps
Speaker 1: have been more outspoken, and it could just be the
Speaker 1: people who support capital punishment don't have necessarily that same
Speaker 1: mobilization for an outside group. But what they do have,
Speaker 1: at least for this past year, has been the federal
Speaker 1: government itself and going back further in which will continue,
Speaker 1: people in state governments that still carry out executions, and
Speaker 1: a majority of the Supreme Court. So the support where
Speaker 1: it counts, if you're a proponent of capital punishment, would
Speaker 1: be where you want it to be, as opposed to
Speaker 1: pass being part of an organization that is not going
Speaker 1: to actually sway the eventual outcome. There was a lot
Speaker 1: of controversy about the protocol for lethal injection. Has that
Speaker 1: all been settled? It hasn't. That's one of the many
Speaker 1: questions that was left open by the court and really unresolved.
Speaker 1: So it's been settled in the sense that the government's
Speaker 1: position has been effectively upheld by a majority of the
Speaker 1: Supreme Court, But there have been numerous lower court trial
Speaker 1: court rulings that have been up ended and not allowed
Speaker 1: to go forward for it to really be tested to
Speaker 1: what extent that the government's protocol violates the Eighth Amendments
Speaker 1: ban on cool and unusual punishment. So there have been
Speaker 1: some litigation that's played out in the lower courts, but
Speaker 1: on that issue and a bunch of others, that's what
Speaker 1: Justice Soda Mayor and Justice Brier we're complaining about in Descent,
Speaker 1: which is that many of these claims just haven't really
Speaker 1: been tested and fully litigated as much as they should
Speaker 1: be before deciding on this important issue, and so the
Speaker 1: litigation has been kind of short circuited in a way
Speaker 1: in order to allow the executions to go forward. But
Speaker 1: that's part of a pattern that we've been seeing in
Speaker 1: these capital cases, not just starting this year, but certainly
Speaker 1: it's been magnified this year with all these executions coming
Speaker 1: one after another from the federal government. Thanks for being
Speaker 1: on the Bloomberg Law Show. Jordan's that's Jordan Reuben, Bloomberg
Speaker 1: Law Editor, And that's it for this edition of the
Speaker 1: Bloomberg Law Show. Remember you can always get the latest
Speaker 1: legal news on our Bloomberg Law podcasts. You can find
Speaker 1: them on Apple Podcasts, Spotify, or at www dot bloomberg
Speaker 1: dot com, slash podcast, Slash law I June Grasso, thanks
Speaker 1: so much for listening. Please tune into The Bloomberg Glass
Speaker 1: Show every week night at ten pm Eastern right here
Speaker 1: onto the Berg Radio