Speaker 1: It's gonna be a big term at the Supreme Court
Speaker 1: starting October two. But don't take my word for it.
Speaker 1: Here's Justice Ruth Bader Ginsburg speaking this week at Georgetown
Speaker 1: Law School. There's only one prediction that's entirely safe about
Speaker 1: the upcoming term, and that it will be momentous. In
Speaker 1: addition the cases involving wedding cakes and voting maps, there
Speaker 1: will be fights over worker class action lawsuits, cell phone privacy,
Speaker 1: and of course Donald Trump's travel band with us to
Speaker 1: talk more about this momentous term and perhaps makes some
Speaker 1: not so safe predictions is Greg gar. He's a partner
Speaker 1: at Latham and Watkins here in Washington and formally the U. S.
Speaker 1: Solicitor General under President George W. Bush. Greg, thanks for
Speaker 1: joining us. Let's see how many of these cases we
Speaker 1: can get to. Uh, tell us a little bit about
Speaker 1: the very first case case the Court's going to hear
Speaker 1: involving the rights of workers depressed class action lawsuits even
Speaker 1: though they've signed arbitration agreements. Thanks Greig, and thanks for
Speaker 1: having me on. So the very first case of the term,
Speaker 1: that's an opportunity for the Court to revisit an area
Speaker 1: that has split the justices along five four lines, and
Speaker 1: that's the enforceability of employee arbitration agreements. And in this case,
Speaker 1: the question is whether or not employer employer employer employee
Speaker 1: agreements to resolve work related disputes through individual arbitration violate
Speaker 1: the federal labor laws. So in the in a specific case,
Speaker 1: the employees suit their employer in court for wage and
Speaker 1: overtime violations on a class basis. But they had one problem.
Speaker 1: They had already agreed to resolve any employer related claims
Speaker 1: through arbitration on an individual basis. UH. The the employers
Speaker 1: then sought to enforce that agreement and kick the cases
Speaker 1: out of court, at which point the employees argued that
Speaker 1: they had a right under the National Labor Relations Act
Speaker 1: to bring that sort of class litigation under provision that
Speaker 1: grants to employees the right to engage in quote, concerted
Speaker 1: activities for the purpose of to bargaining or other mutual
Speaker 1: aid or protection. UH. They rely on that provision to
Speaker 1: claim that the individual arbitration agreements that they assigned are
Speaker 1: unenforceable under federal law. And so this case really presents
Speaker 1: a clash between the National Labor Relations Act and the
Speaker 1: Federal Arbitration Act, which the Court has recognized in a
Speaker 1: series of cases, presents a strong presumption in favor of
Speaker 1: enforcing arbitration agreements. The employees have tended to lose these
Speaker 1: sorts of cases by five for majority, and with the
Speaker 1: Justice Course selling Justice Lee a seat um. There's no
Speaker 1: particular reason to think that the result in this case
Speaker 1: will be any different. But either way, I think everybody
Speaker 1: agrees that this case is of tremendous importance to employers
Speaker 1: and employees alike given the prevalence of these sorts of
Speaker 1: arbitration agreements greg there will be a major test of
Speaker 1: digital privacy coming up with the case involving whether you
Speaker 1: need a warrant to obtain mobile phone tower records. Tell
Speaker 1: us about that absolutely so. Any time, any time you
Speaker 1: have a smartphone in your pocket, your location is constantly
Speaker 1: being tracked by your cellular service provider, which is pinging
Speaker 1: cell towers nearby to send data to and from your phone.
Speaker 1: Um The cellular provider collects this data, and in this case,
Speaker 1: the government want to the service provider and asked for
Speaker 1: four months of this so called cell site location information
Speaker 1: in order to determine the defendants whereabouts in connection with
Speaker 1: the criminal investigations and charges that are brought. And the
Speaker 1: very important question present in this case is whether the
Speaker 1: government's collection of that UH SELL site location information UM
Speaker 1: is a search within the meaning of the Fourth Amendment UH.
Speaker 1: To you go back for a while, the government generally
Speaker 1: has been allowed to collect phone records from UH from
Speaker 1: your phone companies under the Communications Storage Act, and the
Speaker 1: theory that it's just collecting data that everyone should realize
Speaker 1: could be collected by the phone companies and the government
Speaker 1: isn't invading your reasonable expectations of privacy. But this case
Speaker 1: really presents the Court to reconsider reasonable expectations of privacy
Speaker 1: and this smartphone age. And if there's one thing that's
Speaker 1: where it comes to from the Court's recent Fourth AMDENDMIC cases,
Speaker 1: is that the justices are generally wary of embracing force
Speaker 1: Fourth Amendment principles that can limit their own privacy. And
Speaker 1: I think it safe to say that probably all the
Speaker 1: justices carry smartphones, so that may give a little bit
Speaker 1: of a boost to the challengers in this case. We
Speaker 1: know Justice Brier carries a phone because his inadvertently rang
Speaker 1: during a couple of arguments last term. UM Greg, we
Speaker 1: could spend an entire show talking about Donald Trump's travel bands.
Speaker 1: Let me but let me just ask you one question
Speaker 1: about it. So really big issues here, the president in
Speaker 1: control of the borders, the allegations of bias against Muslims.
Speaker 1: But there is this issue that the band that's in
Speaker 1: place now is scheduled to expire on Sunday, and we're
Speaker 1: anticipating the administration may issue something new, perhaps a longer
Speaker 1: travel ban affecting more countries. What do you think the
Speaker 1: chances are that the court will actually decide any of
Speaker 1: those big issues or do you think it's more likely
Speaker 1: that the travel ban case will will go away in
Speaker 1: one way or another? Right? I mean, I think right
Speaker 1: now it's a big if, and that's about all I
Speaker 1: can say. And as as you mentioned, the order itself
Speaker 1: is before the court is scheduled to expire on Sunday,
Speaker 1: and if it expires, then presumably um there be a
Speaker 1: big question of muteness over whether the case could go
Speaker 1: for it at all. But even if the President renews
Speaker 1: the order in some form, then that would present a
Speaker 1: question of whether this is the right time for the
Speaker 1: Supreme Court to decide the issue, or whether it should
Speaker 1: go back for more briefing, more decisions from the lower court.
Speaker 1: And so I think you're quite right that there's a
Speaker 1: significant question as to whether the Supreme Court will issue
Speaker 1: any decision in this case, and then even if it does,
Speaker 1: there's a big question about how broad or narrow the
Speaker 1: court would go um. Thus far in the litigation, the
Speaker 1: Supreme Court has seemed to try to resolve issues that
Speaker 1: have come up on a you know, something of a
Speaker 1: consensus basis, or at least not a five four basis.
Speaker 1: For example, in July, they held that grandparents and cousins
Speaker 1: can't be excluded under the travel order, but that refugees
Speaker 1: claiming a relationship with the resettlement Agency in the United
Speaker 1: States could be UM. So I think if the case
Speaker 1: does go forward, there'll be a big question about how
Speaker 1: narrow or broadly the Court decides this case. And it's
Speaker 1: hard to see the Court, especially out of the block um,
Speaker 1: having much of an appetite as a whole for deciding
Speaker 1: this case on very broad, momentous constitutional grounds. Speaking of
Speaker 1: broad questions, is this going to be an ideologically divisive
Speaker 1: term with Justice Kennedy generally in the middle, Yeah, I
Speaker 1: think I think that's very likely. Um, we're coming off
Speaker 1: of unique curier in which the Court with a h
Speaker 1: justices has really sought to go out of its way
Speaker 1: to find consensus. And you know, one of the big
Speaker 1: pictures questions going into this term is whether or not
Speaker 1: that will hold. But it looks right now, with all
Speaker 1: these divisive issues on the court stocket, that Justice Kennedy
Speaker 1: will be the pivotal justice again and that we're likely
Speaker 1: to see more five four decisions and more of this
Speaker 1: sort of contentious five four decisions that we've seen from
Speaker 1: the Court going back before Justice Galia's passage. So it's
Speaker 1: it's going to be a really fascinating term to follow.
Speaker 1: I want to thank Greg gar from our solicitor general
Speaker 1: now partner at Lathaman Watkins for foreshadowing some of the
Speaker 1: many issues we'll be talking about on Bloomberg Law over
Speaker 1: the next nine months. That's it for this edition of
Speaker 1: Bloomberg Law. We'll be back tomorrow thanks to our tech
Speaker 1: old director Charlie Olmer and our producer David Suckerman. You
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