WEBVTT - An Explosive Supreme Court Term Ahead

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<v Speaker 1>This is Bloomberg Law with June Grasso from Bloomberg Radio.

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<v Speaker 1>Explosive is the way some court watchers describe the second

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<v Speaker 1>half of the Supreme Court's term. It will be chock

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<v Speaker 1>full of high profile, politically charged arguments and blockbuster opinions,

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<v Speaker 1>from abortion rights to President Trump's financial history. Some decisions

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<v Speaker 1>could change the legal landscape. Joining me is Kimberly Strawbridge Robinson,

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<v Speaker 1>Bloomberg Law, Supreme Court Reporter. So let's start with abortion rights,

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<v Speaker 1>which has almost become a litmus test for Supreme Court nominees.

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<v Speaker 1>The Justices will get their first chance to ship away

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<v Speaker 1>at abortion rights since Trump's conservative nominees took the bench.

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<v Speaker 1>Tell us about the case the Court's going to be

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<v Speaker 1>considering next week, Well, sir, this case is June Medical

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<v Speaker 1>Services versus Russo. And what's our issue here is a

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<v Speaker 1>Louisiana law that requires abortion doctors to obtain admitting privileges

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<v Speaker 1>at local hospitals. And if this sounds familiar, that's because

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<v Speaker 1>the Supreme Court actually struck down a very similar Texas

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<v Speaker 1>law in so it brings up the issue here not

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<v Speaker 1>just abortion, but also a precedent and how closely the

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<v Speaker 1>Supreme Court is going to follow its own precedent, especially

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<v Speaker 1>recent precedent. So this will be a test for Chief

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<v Speaker 1>Justice Roberts, who was in the dissent in the Texas

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<v Speaker 1>case that you mentioned. That's precedent here, that's right. But

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<v Speaker 1>then when the Louisiana case came to the Court early

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<v Speaker 1>last year, Justice Roberts actually voted to put the law

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<v Speaker 1>on hold, that is, he voted against the Louisiana law here.

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<v Speaker 1>So you're right that really all eyes are going to

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<v Speaker 1>be on shape Justice Roberts in this case. But that's

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<v Speaker 1>really going to be the case for most of the

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<v Speaker 1>blockbusters that the Court is hearing this term. You mentioned

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<v Speaker 1>precedent here. Are there going to be several cases that

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<v Speaker 1>are going to deal with precedent which has been a

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<v Speaker 1>growing concern for some of the liberals the court. Well,

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<v Speaker 1>it really has. We have seen a lot of petitioners

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<v Speaker 1>bringing cases to the Court that specifically asked the newly

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<v Speaker 1>reconstituted Court to overturn its precedent, and we saw the

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<v Speaker 1>Court do that a couple of times last term. And

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<v Speaker 1>in one of those cases, which dealt with a decades

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<v Speaker 1>old precedent, we saw one of the liberals on the Court,

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<v Speaker 1>Justice Brier actually say that it makes you wonder what

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<v Speaker 1>precedents are next, and he not so subtly cited to

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<v Speaker 1>the Court's abortion dockets. So that's definitely been on the

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<v Speaker 1>minds of liberals and court watchers in general, how the

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<v Speaker 1>Court will treat its precedent in the abortion case. Have

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<v Speaker 1>any of the advocates asked the Court to reverse Roe v. Wade. No,

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<v Speaker 1>So this case doesn't directly implicate Roe v. Wade or

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<v Speaker 1>some of the other courts more foundational abortion precedent, But

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<v Speaker 1>as you mentioned at the top of our segment, it

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<v Speaker 1>does provide the justices with a chance to kind of

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<v Speaker 1>chip away at abortion rights. And that's something that actually

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<v Speaker 1>court watchers think may be more preferable to the Roberts Court,

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<v Speaker 1>which tends to do things more incrementally rather than in

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<v Speaker 1>these big broad strokes like overturning Row versus RDS. Now,

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<v Speaker 1>at the end of March, there'll be three cases concerning

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<v Speaker 1>access to Trump's financial records. Tell us about those, well, right,

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<v Speaker 1>so these are a trio of cases, but they really

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<v Speaker 1>deal with two separate issues. And so in one of

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<v Speaker 1>the cases, House committees are trying to get financial records

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<v Speaker 1>of the president, and then the other it's New York

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<v Speaker 1>who's trying to get these financial records. Now, in the

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<v Speaker 1>New York case, the private attorney for the president famously

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<v Speaker 1>said that the president could shoot someone UM on Fifth

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<v Speaker 1>Avenue and that New York couldn't even investigate the president

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<v Speaker 1>for criminal wrongdoing. Well, he was in office, and so

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<v Speaker 1>what the president is asking here UM in both of

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<v Speaker 1>these cases is really a very broad immunity from an

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<v Speaker 1>investigation while he's the sitting president. Let's turn to some

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<v Speaker 1>other decision. There'll be decisions on cases that could change

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<v Speaker 1>the landscape of federal protections for workplace discrimination. And the

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<v Speaker 1>Justices have already heard arguments in a trio of cases

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<v Speaker 1>concerning lgbt Q workers. Right so, at the beginning of

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<v Speaker 1>the term, the justices UM heard several cases that ask

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<v Speaker 1>whether or not federal antidiscrimination laws that are meant to

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<v Speaker 1>protect workers protect LGBT workers as well. And it's a

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<v Speaker 1>really interesting case in that kind of the legal theories

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<v Speaker 1>that most of the conservative justices UH say that they

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<v Speaker 1>rely on actually wagh in favor of finding that the

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<v Speaker 1>law does protect LGBT workers. So it'll be an interesting

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<v Speaker 1>UM case to see how they turn out. In particular,

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<v Speaker 1>Justice corsage Um, President Trump's first nominee is being really

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<v Speaker 1>torn at the argument about how to deal with those

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<v Speaker 1>um those legal theories and how they work in that case.

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<v Speaker 1>But there are other discrimination cases that are ring under

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<v Speaker 1>the radar, just because this term is filled with so

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<v Speaker 1>many blockbusters like the one we just talked about. I've

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<v Speaker 1>been talking to Bloomberg Law Supreme Court reporter Kimberly Strawbridge

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<v Speaker 1>Robinson about the second half of the Supreme Court's term.

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<v Speaker 1>It will be filled with high profile, politically charged arguments

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<v Speaker 1>and blockbuster opinions. In the coming months, the justices will

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<v Speaker 1>consider whether President Trump can avoid congressional inquiries into his

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<v Speaker 1>financial history. They'll also get their first chance to chip

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<v Speaker 1>away at abortion rights since Trump's conservative nominees took the bench. So, Kimberly,

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<v Speaker 1>we were talking about cases that could change the landscape

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<v Speaker 1>of workplace discrimination. Tell us about the cases that could

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<v Speaker 1>make it harder to even bring a discrimination case based

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<v Speaker 1>on race or age in federal court. Well, there are

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<v Speaker 1>two cases. One is Comcast and the other is BAB

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<v Speaker 1>And Comcast deals with racial discrimination and bad deals with

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<v Speaker 1>age discrimination. But the question in both cases is what

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<v Speaker 1>a plaintiffs must allege in or to even bring their

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<v Speaker 1>case in federal court. And in particular, it could make

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<v Speaker 1>it harder for plaintiffs to even bring these discrimination suits

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<v Speaker 1>if the Supreme Court says that they have to prove

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<v Speaker 1>that their race or their age was the only factor

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<v Speaker 1>in their adverse employment decision, rather than just one of

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<v Speaker 1>many factors. So those are two cases to watch, even

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<v Speaker 1>though it's hard to keep tabs on everything going on

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<v Speaker 1>this term. Really, the Court has taken several cases involving religion,

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<v Speaker 1>from the public funding of religious schools to religious exemptions

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<v Speaker 1>from Obamacare. Tell us about the religion cases, right, So,

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<v Speaker 1>religion has been a very popular topic um with the

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<v Speaker 1>Robbers Court, especially in recent years, and they've been dealing

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<v Speaker 1>with it on many fronts, um some of them on

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<v Speaker 1>you know, the lines between LGBT rights and religious freedom,

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<v Speaker 1>and also, as you mentioned, on public funding of schools.

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<v Speaker 1>And so the Justice has recently heard a case Espinosa

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<v Speaker 1>about whether or not ministers or Montana can ex food

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<v Speaker 1>religious schools uh from a scholarship program, or whether the

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<v Speaker 1>federal free exercise actually requires that Montana include religious schools

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<v Speaker 1>so as not to show hostility towards them, And there

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<v Speaker 1>is a case involving what's called the ministerial exception. Well,

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<v Speaker 1>that's right, and so as I mentioned, these religion cases

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<v Speaker 1>are really just all over the map and so on.

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<v Speaker 1>That is a long standing exception um for religious discrimination

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<v Speaker 1>claims against religious employers. The idea there being that you

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<v Speaker 1>don't want federal courts and the government to get involved

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<v Speaker 1>in all kinds of religious decisions. Do you want them

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<v Speaker 1>to kind of you know, separation of church and state

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<v Speaker 1>and keep their hands off. So this case will will

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<v Speaker 1>take a look at that ministerial exception and seeing if

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<v Speaker 1>it is still good law and how broadly it should

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<v Speaker 1>be applied. And the Court in recent terms, would you

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<v Speaker 1>say the court has been expanding religious rights? They certainly

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<v Speaker 1>seemed to expand certain religious rights. And so there's really

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<v Speaker 1>this tension that it seems that the justices have been

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<v Speaker 1>dealing with between the two religious clauses in the first Amendment,

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<v Speaker 1>one the free exercise, which says that the government you

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<v Speaker 1>can't inhibit religion or show hostility towards religion, and one

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<v Speaker 1>the establishment clauset, says that you know, government has to

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<v Speaker 1>keep its hands off of religion, and so the justice

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<v Speaker 1>have really been um broadening the reach of the free

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<v Speaker 1>exercise clause at the expense of the establishment clause. But yes,

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<v Speaker 1>they've been dealing in a lot of these religion cases that,

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<v Speaker 1>as I mentioned a couple of times, just reached on

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<v Speaker 1>touch on so many different issues. Now, administrative law is

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<v Speaker 1>something that people usually you know, yawn at and say, oh,

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<v Speaker 1>administrative law, but there are a number of cases that

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<v Speaker 1>could reshape the way agencies operate. Well, that's right, And

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<v Speaker 1>this is a particular area that court watchers have been

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<v Speaker 1>keeping their eye on UM since President Trump nominated both

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<v Speaker 1>Justice Corsets and Justice Kabinat to the bench, because they've

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<v Speaker 1>indicated that this is an area that they're interested in

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<v Speaker 1>reigning in, that is reigning in the administrative state. And

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<v Speaker 1>so there's been a number of cases I'm sprinkled over

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<v Speaker 1>the last three terms, and there are several this term.

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<v Speaker 1>I think the one that most people are watching are

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<v Speaker 1>one is one about the Consumer Financial Protection Bureau that

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<v Speaker 1>the Justices will here soon UM that asked whether or

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<v Speaker 1>not you know, putting a single person in charge of

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<v Speaker 1>the agency who can only be fired for cause actually

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<v Speaker 1>violates the separation of powers clause by taking away power

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<v Speaker 1>from the president to control the executives. It's sort of

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<v Speaker 1>an odd case for the Trump administration because right now

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<v Speaker 1>they have in there someone that Trump appointed, and presumably

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<v Speaker 1>they'd want that person to stay there even if a

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<v Speaker 1>Democrat becomes president. But with this case, if the justice

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<v Speaker 1>is a rule a certain way, the Democrats could remove

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<v Speaker 1>the person that Trump put in all right, So there

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<v Speaker 1>are in these administrative cases kind of some um, you know,

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<v Speaker 1>tough lines for any administration, but especially for the Trump administration,

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<v Speaker 1>who we see is generally wanting to rain in the

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<v Speaker 1>administrative state. UM. Here, the person who has now been

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<v Speaker 1>a Trump appointee has said, has agreed that she is

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<v Speaker 1>removable um at the will of the president. And one

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<v Speaker 1>of the big questions in the case is going to be,

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<v Speaker 1>so what happens now to the rest of the statute?

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<v Speaker 1>If one part of it is ben constitutional, does that

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<v Speaker 1>mean that the whole statute falls and there's no longer

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<v Speaker 1>a CFPD or can you kind of separate that from

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<v Speaker 1>the rest of the statute. Now, in light of all

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<v Speaker 1>these big blockbuster cases, a copyright case that should be

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<v Speaker 1>a blockbuster involves Google and Oracle is sort of lost

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<v Speaker 1>in the shadows. So tell us about that case. Well,

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<v Speaker 1>it really is. I mean, this is really one of

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<v Speaker 1>the biggest UM I P cases of our generation, and

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<v Speaker 1>you know, it's it has been really lost in the

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<v Speaker 1>shuffle here. But it's Google versus Oracle and deals with

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<v Speaker 1>you know, several billion dollars of code that is meant

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<v Speaker 1>to make it easier for UM developers to speak with

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<v Speaker 1>different kinds of technology. And the question is whether or

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<v Speaker 1>not firms can copyright that and how other firms can

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<v Speaker 1>utilize that if it can be copyrightable. Kimberly, have they

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<v Speaker 1>decided yet whether they're going to take the case on Obamacare, Well,

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<v Speaker 1>they haven't decided that, uh as far as we speak.

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<v Speaker 1>They are going to be considering it at another conference UM.

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<v Speaker 1>But there's really been some kind of conflicting indications on

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<v Speaker 1>whether or not the court will take up that case

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<v Speaker 1>right now. So the issue, uh is about the individual mandate,

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<v Speaker 1>which a lower court said UM is no longer legal.

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<v Speaker 1>But there's still a question hanging out there about, similar

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<v Speaker 1>to the CFBB case, what to do with the rest

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<v Speaker 1>of the statute is all of Obamacare and constitutional. So

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<v Speaker 1>the justices are weighing whether to take the case now, um,

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<v Speaker 1>when it's kind of halfway done, or whether to send

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<v Speaker 1>it back down to the lower courts and take it

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<v Speaker 1>back up when the whole case is ready for the

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<v Speaker 1>justices to hear. Which cases could show the trajectory of

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<v Speaker 1>the Roberts Court, whether the new Conservatives will take the

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<v Speaker 1>court sharply to the right, or whether the Chief will

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<v Speaker 1>keep that move gradual. Well, I think there's a temptation

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<v Speaker 1>to really look at these big blockbuster cases, these cases

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<v Speaker 1>like the LGBT case that we were talking about, the

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<v Speaker 1>case about DOCCA, to see how the court is going

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<v Speaker 1>to go. But I think some of these smaller cases

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<v Speaker 1>that we were talking about, the cases about um administrative

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<v Speaker 1>law about religion, is really going to show whether or

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<v Speaker 1>not the Court has any appetite to take really broad

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<v Speaker 1>moves that could overturn really longstanding doctrines that touch all

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<v Speaker 1>of our lives, or if they're going to go more

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<v Speaker 1>incrementally and take on things just kind of chip away

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<v Speaker 1>at them, as we suggested with the abortion cases. You know,

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<v Speaker 1>you just mentioned DOCCA, and I realized we hadn't spoken

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<v Speaker 1>about DOCA, And last year when they took doc everyone

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<v Speaker 1>said that's going to be the biggest case of the

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<v Speaker 1>term or one of the biggest and it's see to

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<v Speaker 1>have faded into the background and tell us what that's about. Yeah,

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<v Speaker 1>I mean, this term is really just seems like it's

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<v Speaker 1>on steroids as far as the number of blockbuster cases. Um.

0:13:11.920 --> 0:13:15.240
<v Speaker 1>But DOCCA is, of course a program that was put

0:13:15.280 --> 0:13:20.080
<v Speaker 1>in place by President Obama to defer deportation for individuals

0:13:20.120 --> 0:13:22.679
<v Speaker 1>who were brought to the country illegally when they were children,

0:13:23.000 --> 0:13:25.520
<v Speaker 1>and these so called dreamers. There's been a lot of

0:13:25.720 --> 0:13:29.800
<v Speaker 1>um question about how to handle uh, these young individuals.

0:13:29.920 --> 0:13:35.000
<v Speaker 1>And the Trump administration wants to unwind the policy, not because,

0:13:35.040 --> 0:13:37.840
<v Speaker 1>it says, not because it doesn't want to give some

0:13:37.960 --> 0:13:41.120
<v Speaker 1>relief to dreamers, but because it thinks that President Obama

0:13:41.120 --> 0:13:44.400
<v Speaker 1>didn't have the authority to issue the DOCTA program in

0:13:44.400 --> 0:13:47.200
<v Speaker 1>the first place. So the justices will and they have

0:13:47.280 --> 0:13:50.120
<v Speaker 1>agreed to decide whether or not the Trump administration can

0:13:50.160 --> 0:13:53.040
<v Speaker 1>actually begin winding that program down, and then of course

0:13:53.080 --> 0:13:54.720
<v Speaker 1>it will be up to Congress to decide what to

0:13:54.720 --> 0:13:59.480
<v Speaker 1>do with Dreamers. Liberals have been watching the health of

0:13:59.559 --> 0:14:04.000
<v Speaker 1>Justice Ruth Bader Ginsburg because of her brushes with the

0:14:04.080 --> 0:14:07.320
<v Speaker 1>medical problems. Tell us about those for those who don't know,

0:14:07.559 --> 0:14:11.360
<v Speaker 1>and how she's doing well. She has had UM several

0:14:11.480 --> 0:14:15.520
<v Speaker 1>recent brushes UM with cancer lately. UM she's actually had

0:14:15.559 --> 0:14:18.400
<v Speaker 1>four bouts of cancer, but she says she regularly goes

0:14:18.440 --> 0:14:20.600
<v Speaker 1>to the doctor and that she is cancer free right

0:14:20.600 --> 0:14:23.440
<v Speaker 1>now and feeling healthy, and all indications from her work

0:14:23.480 --> 0:14:26.640
<v Speaker 1>product seem to be that she's feeling pretty good. She's

0:14:26.800 --> 0:14:31.040
<v Speaker 1>already issued three opinions UH in cases in majority or

0:14:31.200 --> 0:14:34.120
<v Speaker 1>three majority opinions in cases so far this term, whereas

0:14:34.200 --> 0:14:36.800
<v Speaker 1>all the other justices have only gotten one UM. And

0:14:36.880 --> 0:14:41.160
<v Speaker 1>she's written a several very robust descents in cases, including

0:14:41.200 --> 0:14:44.720
<v Speaker 1>one simply for herself. So she's she's working hard and

0:14:44.800 --> 0:14:47.520
<v Speaker 1>seems to be doing well. Also, she seems to be

0:14:47.600 --> 0:14:50.040
<v Speaker 1>making a lot of appearances, at least when the court

0:14:50.200 --> 0:14:52.800
<v Speaker 1>was in a recess, so I saw her in time

0:14:52.800 --> 0:14:55.800
<v Speaker 1>and time again more than any of the other justices.

0:14:56.840 --> 0:15:00.000
<v Speaker 1>She is she famously, you know, is a frequent UH

0:15:00.280 --> 0:15:04.200
<v Speaker 1>on the opera circuit. But she has been around talking

0:15:04.200 --> 0:15:07.320
<v Speaker 1>with students, talking with a lot of groups around town.

0:15:07.600 --> 0:15:09.760
<v Speaker 1>It's actually funny. I was talking to my editor the

0:15:09.800 --> 0:15:12.360
<v Speaker 1>other day about covering another one of her events, and

0:15:12.400 --> 0:15:14.480
<v Speaker 1>we said Oh, we're kind of we've kind of had

0:15:14.560 --> 0:15:18.680
<v Speaker 1>enough of Justice Kinsburg lately. She's just everywhere. Thanks so

0:15:18.760 --> 0:15:22.760
<v Speaker 1>much for being on Bloomberg Law. Kimberly, that's Kimberly Strawbridge Robinson,

0:15:22.840 --> 0:15:26.080
<v Speaker 1>Bloomberg Law Supreme Court Reporter. And that's it for this

0:15:26.240 --> 0:15:28.880
<v Speaker 1>edition of Bloomberg Law. Remember you can listen to all

0:15:28.880 --> 0:15:31.760
<v Speaker 1>the latest legal topics in the news anytime on Bloomberg

0:15:31.800 --> 0:15:35.040
<v Speaker 1>Lawn Podcast. You can find them on iTunes, SoundCloud, or

0:15:35.120 --> 0:15:39.600
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0:15:39.640 --> 0:15:42.960
<v Speaker 1>can find exceptional legal research and business development tools at

0:15:42.960 --> 0:15:46.520
<v Speaker 1>Bloomberg Law dot com. I'm June Grosso. Thanks so much

0:15:46.560 --> 0:15:49.160
<v Speaker 1>for a listening, and remember to tune into the Bloomberg

0:15:49.200 --> 0:15:52.280
<v Speaker 1>Law Show tomorrow night at ten pm Eastern right here

0:15:52.320 --> 0:15:53.360
<v Speaker 1>on Bloomberg Radio