WEBVTT - Fall 2017 Supreme Court Term Promises Exciting Opening (Audio)

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<v Speaker 1>It's gonna be a big term at the Supreme Court

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<v Speaker 1>starting October two. But don't take my word for it.

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<v Speaker 1>Here's Justice Ruth Bader Ginsburg speaking this week at Georgetown

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<v Speaker 1>Law School. There's only one prediction that's entirely safe about

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<v Speaker 1>the upcoming term, and that it will be momentous. In

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<v Speaker 1>addition the cases involving wedding cakes and voting maps, there

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<v Speaker 1>will be fights over worker class action lawsuits, cell phone privacy,

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<v Speaker 1>and of course Donald Trump's travel band with us to

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<v Speaker 1>talk more about this momentous term and perhaps makes some

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<v Speaker 1>not so safe predictions is Greg gar. He's a partner

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<v Speaker 1>at Latham and Watkins here in Washington and formally the U. S.

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<v Speaker 1>Solicitor General under President George W. Bush. Greg, thanks for

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<v Speaker 1>joining us. Let's see how many of these cases we

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<v Speaker 1>can get to. Uh, tell us a little bit about

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<v Speaker 1>the very first case case the Court's going to hear

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<v Speaker 1>involving the rights of workers depressed class action lawsuits even

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<v Speaker 1>though they've signed arbitration agreements. Thanks Greig, and thanks for

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<v Speaker 1>having me on. So the very first case of the term,

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<v Speaker 1>that's an opportunity for the Court to revisit an area

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<v Speaker 1>that has split the justices along five four lines, and

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<v Speaker 1>that's the enforceability of employee arbitration agreements. And in this case,

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<v Speaker 1>the question is whether or not employer employer employer employee

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<v Speaker 1>agreements to resolve work related disputes through individual arbitration violate

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<v Speaker 1>the federal labor laws. So in the in a specific case,

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<v Speaker 1>the employees suit their employer in court for wage and

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<v Speaker 1>overtime violations on a class basis. But they had one problem.

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<v Speaker 1>They had already agreed to resolve any employer related claims

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<v Speaker 1>through arbitration on an individual basis. UH. The the employers

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<v Speaker 1>then sought to enforce that agreement and kick the cases

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<v Speaker 1>out of court, at which point the employees argued that

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<v Speaker 1>they had a right under the National Labor Relations Act

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<v Speaker 1>to bring that sort of class litigation under provision that

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<v Speaker 1>grants to employees the right to engage in quote, concerted

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<v Speaker 1>activities for the purpose of to bargaining or other mutual

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<v Speaker 1>aid or protection. UH. They rely on that provision to

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<v Speaker 1>claim that the individual arbitration agreements that they assigned are

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<v Speaker 1>unenforceable under federal law. And so this case really presents

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<v Speaker 1>a clash between the National Labor Relations Act and the

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<v Speaker 1>Federal Arbitration Act, which the Court has recognized in a

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<v Speaker 1>series of cases, presents a strong presumption in favor of

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<v Speaker 1>enforcing arbitration agreements. The employees have tended to lose these

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<v Speaker 1>sorts of cases by five for majority, and with the

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<v Speaker 1>Justice Course selling Justice Lee a seat um. There's no

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<v Speaker 1>particular reason to think that the result in this case

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<v Speaker 1>will be any different. But either way, I think everybody

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<v Speaker 1>agrees that this case is of tremendous importance to employers

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<v Speaker 1>and employees alike given the prevalence of these sorts of

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<v Speaker 1>arbitration agreements greg there will be a major test of

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<v Speaker 1>digital privacy coming up with the case involving whether you

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<v Speaker 1>need a warrant to obtain mobile phone tower records. Tell

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<v Speaker 1>us about that absolutely so. Any time, any time you

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<v Speaker 1>have a smartphone in your pocket, your location is constantly

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<v Speaker 1>being tracked by your cellular service provider, which is pinging

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<v Speaker 1>cell towers nearby to send data to and from your phone.

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<v Speaker 1>Um The cellular provider collects this data, and in this case,

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<v Speaker 1>the government want to the service provider and asked for

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<v Speaker 1>four months of this so called cell site location information

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<v Speaker 1>in order to determine the defendants whereabouts in connection with

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<v Speaker 1>the criminal investigations and charges that are brought. And the

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<v Speaker 1>very important question present in this case is whether the

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<v Speaker 1>government's collection of that UH SELL site location information UM

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<v Speaker 1>is a search within the meaning of the Fourth Amendment UH.

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<v Speaker 1>To you go back for a while, the government generally

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<v Speaker 1>has been allowed to collect phone records from UH from

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<v Speaker 1>your phone companies under the Communications Storage Act, and the

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<v Speaker 1>theory that it's just collecting data that everyone should realize

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<v Speaker 1>could be collected by the phone companies and the government

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<v Speaker 1>isn't invading your reasonable expectations of privacy. But this case

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<v Speaker 1>really presents the Court to reconsider reasonable expectations of privacy

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<v Speaker 1>and this smartphone age. And if there's one thing that's

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<v Speaker 1>where it comes to from the Court's recent Fourth AMDENDMIC cases,

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<v Speaker 1>is that the justices are generally wary of embracing force

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<v Speaker 1>Fourth Amendment principles that can limit their own privacy. And

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<v Speaker 1>I think it safe to say that probably all the

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<v Speaker 1>justices carry smartphones, so that may give a little bit

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<v Speaker 1>of a boost to the challengers in this case. We

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<v Speaker 1>know Justice Brier carries a phone because his inadvertently rang

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<v Speaker 1>during a couple of arguments last term. UM Greg, we

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<v Speaker 1>could spend an entire show talking about Donald Trump's travel bands.

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<v Speaker 1>Let me but let me just ask you one question

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<v Speaker 1>about it. So really big issues here, the president in

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<v Speaker 1>control of the borders, the allegations of bias against Muslims.

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<v Speaker 1>But there is this issue that the band that's in

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<v Speaker 1>place now is scheduled to expire on Sunday, and we're

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<v Speaker 1>anticipating the administration may issue something new, perhaps a longer

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<v Speaker 1>travel ban affecting more countries. What do you think the

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<v Speaker 1>chances are that the court will actually decide any of

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<v Speaker 1>those big issues or do you think it's more likely

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<v Speaker 1>that the travel ban case will will go away in

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<v Speaker 1>one way or another? Right? I mean, I think right

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<v Speaker 1>now it's a big if, and that's about all I

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<v Speaker 1>can say. And as as you mentioned, the order itself

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<v Speaker 1>is before the court is scheduled to expire on Sunday,

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<v Speaker 1>and if it expires, then presumably um there be a

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<v Speaker 1>big question of muteness over whether the case could go

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<v Speaker 1>for it at all. But even if the President renews

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<v Speaker 1>the order in some form, then that would present a

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<v Speaker 1>question of whether this is the right time for the

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<v Speaker 1>Supreme Court to decide the issue, or whether it should

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<v Speaker 1>go back for more briefing, more decisions from the lower court.

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<v Speaker 1>And so I think you're quite right that there's a

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<v Speaker 1>significant question as to whether the Supreme Court will issue

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<v Speaker 1>any decision in this case, and then even if it does,

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<v Speaker 1>there's a big question about how broad or narrow the

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<v Speaker 1>court would go um. Thus far in the litigation, the

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<v Speaker 1>Supreme Court has seemed to try to resolve issues that

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<v Speaker 1>have come up on a you know, something of a

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<v Speaker 1>consensus basis, or at least not a five four basis.

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<v Speaker 1>For example, in July, they held that grandparents and cousins

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<v Speaker 1>can't be excluded under the travel order, but that refugees

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<v Speaker 1>claiming a relationship with the resettlement Agency in the United

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<v Speaker 1>States could be UM. So I think if the case

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<v Speaker 1>does go forward, there'll be a big question about how

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<v Speaker 1>narrow or broadly the Court decides this case. And it's

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<v Speaker 1>hard to see the Court, especially out of the block um,

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<v Speaker 1>having much of an appetite as a whole for deciding

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<v Speaker 1>this case on very broad, momentous constitutional grounds. Speaking of

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<v Speaker 1>broad questions, is this going to be an ideologically divisive

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<v Speaker 1>term with Justice Kennedy generally in the middle, Yeah, I

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<v Speaker 1>think I think that's very likely. Um, we're coming off

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<v Speaker 1>of unique curier in which the Court with a h

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<v Speaker 1>justices has really sought to go out of its way

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<v Speaker 1>to find consensus. And you know, one of the big

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<v Speaker 1>pictures questions going into this term is whether or not

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<v Speaker 1>that will hold. But it looks right now, with all

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<v Speaker 1>these divisive issues on the court stocket, that Justice Kennedy

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<v Speaker 1>will be the pivotal justice again and that we're likely

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<v Speaker 1>to see more five four decisions and more of this

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<v Speaker 1>sort of contentious five four decisions that we've seen from

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<v Speaker 1>the Court going back before Justice Galia's passage. So it's

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<v Speaker 1>it's going to be a really fascinating term to follow.

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<v Speaker 1>I want to thank Greg gar from our solicitor general

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<v Speaker 1>now partner at Lathaman Watkins for foreshadowing some of the

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<v Speaker 1>many issues we'll be talking about on Bloomberg Law over

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<v Speaker 1>the next nine months. That's it for this edition of

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<v Speaker 1>Bloomberg Law. We'll be back tomorrow thanks to our tech

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<v Speaker 1>old director Charlie Olmer and our producer David Suckerman. You

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<v Speaker 1>can find more legal news on at Bloomberg Law dot

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<v Speaker 1>com and Bloomberg BNA dot com, plus an invaluable website

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<v Speaker 1>for the legal community at Big Law business dot com.

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<v Speaker 1>Coming up on Bloomberg Radio, it'll be Bloomberg Markets with

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<v Speaker 1>Carol Masser and Corey Johnson. They have a full agenda

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<v Speaker 1>to talk about, so stay tuned for that. You've been

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<v Speaker 1>listening to Bloomberg Law. This is Bloomberg