1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,560 --> 00:00:11,960 Speaker 2: The Supreme Court handed down sixty six opinions on its 3 00:00:12,039 --> 00:00:17,520 Speaker 2: regular docket in twenty twenty five, with significant decisions concerning religion, 4 00:00:17,920 --> 00:00:24,919 Speaker 2: free speech, reverse discrimination, LGBTQ rights, gun regulation, parental rights, 5 00:00:25,120 --> 00:00:30,240 Speaker 2: nationwide injunctions, and agency authority. Six cases were decided by 6 00:00:30,240 --> 00:00:34,600 Speaker 2: a court split ideologically six to three, with the conservative 7 00:00:34,840 --> 00:00:38,680 Speaker 2: justices in the majority and the liberal justices in descent. 8 00:00:39,159 --> 00:00:42,760 Speaker 2: Those were cases over hot button social issues like a 9 00:00:42,800 --> 00:00:47,200 Speaker 2: ban on gender affirming care for miners and religious accommodations 10 00:00:47,200 --> 00:00:51,599 Speaker 2: and education. Joining me to analyze the decisions is constitutional 11 00:00:51,680 --> 00:00:56,200 Speaker 2: law expert David Super, a professor at Georgetown Law. David, 12 00:00:56,240 --> 00:00:59,760 Speaker 2: let's start with the case over religious charter schools that 13 00:01:00,000 --> 00:01:04,200 Speaker 2: you have lifted the long standing constitutional limits on government 14 00:01:04,280 --> 00:01:07,560 Speaker 2: support for religion. And you can see the divide between 15 00:01:07,600 --> 00:01:11,440 Speaker 2: the conservative and liberal justices in many of the cases 16 00:01:11,480 --> 00:01:13,040 Speaker 2: dealing with religion. 17 00:01:12,920 --> 00:01:15,959 Speaker 3: And you say, oh, we're a religious school, it's like, Oh, no, 18 00:01:16,560 --> 00:01:20,600 Speaker 3: can't do that. That's too much, that's scary, We're not 19 00:01:20,640 --> 00:01:24,080 Speaker 3: going to do that. And our cases have made very 20 00:01:24,120 --> 00:01:25,800 Speaker 3: clear and I think those are some of the most 21 00:01:25,800 --> 00:01:29,959 Speaker 3: important cases we've had of saying you can't treat religious 22 00:01:29,959 --> 00:01:35,000 Speaker 3: people and religious institutions and religious speech as second class 23 00:01:35,080 --> 00:01:37,200 Speaker 3: in the United States. 24 00:01:36,920 --> 00:01:40,800 Speaker 4: Because the essence of the Establishment Clause was we're not 25 00:01:40,920 --> 00:01:48,120 Speaker 4: going to pay religious leaders to teach their religion. That 26 00:01:48,240 --> 00:01:51,720 Speaker 4: was is and has always been the essence. And here 27 00:01:51,800 --> 00:01:56,760 Speaker 4: we're paying Catholic leaders Catholic teachers. 28 00:01:57,120 --> 00:02:01,320 Speaker 2: This was an unusual lass for religious plays at the Court, 29 00:02:01,680 --> 00:02:05,320 Speaker 2: but there were unusual circumstances, So tell us what happened. 30 00:02:05,800 --> 00:02:10,120 Speaker 5: Ultimately, nothing happened. There was an effort to create a 31 00:02:10,200 --> 00:02:16,240 Speaker 5: religious charter school in Oklahoma. The Oklahoma Supreme Court, reading 32 00:02:16,280 --> 00:02:20,520 Speaker 5: the Supreme Court's precedence on this, felt that that was 33 00:02:21,000 --> 00:02:25,120 Speaker 5: accessive entanglement of church and state, that it was violating 34 00:02:25,160 --> 00:02:29,359 Speaker 5: the Establishment Clause by using public resources to promote religion. 35 00:02:29,760 --> 00:02:33,840 Speaker 5: It gets to the Supreme Court and the Court splits 36 00:02:33,960 --> 00:02:37,959 Speaker 5: four to four, which means that the Oklahoma Supreme Court 37 00:02:38,040 --> 00:02:44,240 Speaker 5: decision is affirmed and the charter school is shut down. However, 38 00:02:44,560 --> 00:02:48,640 Speaker 5: the reason the Court had only eight justices participating is 39 00:02:48,680 --> 00:02:54,920 Speaker 5: because Justice Barrett accused herself, presumably because she's a former 40 00:02:55,000 --> 00:02:58,840 Speaker 5: faculty member at Notre Dame and a Notre Dame Clinic 41 00:02:59,040 --> 00:03:02,360 Speaker 5: was involved in much of this work. Apparently some of 42 00:03:02,400 --> 00:03:05,360 Speaker 5: her friends were. If a similar case returns of the 43 00:03:05,480 --> 00:03:09,600 Speaker 5: Court where all nine justices were able to participate, based 44 00:03:09,639 --> 00:03:13,440 Speaker 5: on her past writings, anticipate Justice Barrett would vote in 45 00:03:13,520 --> 00:03:16,360 Speaker 5: favor of the charter school and they would win the 46 00:03:16,400 --> 00:03:18,480 Speaker 5: war even though they lost this battle. 47 00:03:18,680 --> 00:03:23,040 Speaker 2: You anticipated my question because the supporters of charter schools 48 00:03:23,080 --> 00:03:25,680 Speaker 2: here say the fight isn't over, so they're likely to 49 00:03:25,680 --> 00:03:27,320 Speaker 2: bring another case to the court. 50 00:03:27,520 --> 00:03:32,320 Speaker 5: Oh. Yes, the efforts to expand state subsities or religion 51 00:03:32,360 --> 00:03:36,400 Speaker 5: are quite well funded and quite energetic, and in many respects, 52 00:03:36,440 --> 00:03:39,720 Speaker 5: it was a strategic blunder to bring it from a 53 00:03:39,920 --> 00:03:43,600 Speaker 5: state where one of the justices had connections. But there 54 00:03:43,600 --> 00:03:46,120 Speaker 5: are plenty of other states that they can do this with, 55 00:03:46,360 --> 00:03:49,280 Speaker 5: and the longer she's on the court, the fewer of 56 00:03:49,320 --> 00:03:52,640 Speaker 5: these pre court connections will entangle her. 57 00:03:53,160 --> 00:03:57,680 Speaker 2: Now, let's turn to Catholic Charities Bureau versus Wisconsin Labor 58 00:03:57,720 --> 00:04:02,360 Speaker 2: and Industry Review Commission, And this is about tax exempt 59 00:04:02,440 --> 00:04:03,840 Speaker 2: religious organizations. 60 00:04:04,720 --> 00:04:08,840 Speaker 5: Yes, this is kind of an odd case where Wisconsin 61 00:04:09,000 --> 00:04:15,240 Speaker 5: had an exception from required contributions for certain kinds of 62 00:04:15,280 --> 00:04:21,960 Speaker 5: religious organizations, but concluded that Catholic charities didn't qualify because 63 00:04:22,600 --> 00:04:28,880 Speaker 5: they provided services of a secular kind. And the Supreme 64 00:04:28,960 --> 00:04:32,400 Speaker 5: Court looked at this and said, we do not want 65 00:04:33,000 --> 00:04:37,480 Speaker 5: states to be making fine tuned decisions about how religious 66 00:04:37,600 --> 00:04:41,720 Speaker 5: organizations carry things out, distinguishing between those with a lot 67 00:04:41,760 --> 00:04:46,279 Speaker 5: of proselytizing, a little proselytizing, and no proselytizing. This is 68 00:04:46,400 --> 00:04:51,279 Speaker 5: too much intrusion of the state into religion. This has 69 00:04:51,400 --> 00:04:55,880 Speaker 5: all sorts of potential for favoring one religious group for another. 70 00:04:55,960 --> 00:04:59,240 Speaker 5: There are some religions that are absolutely opposed to proselytizing, 71 00:05:00,320 --> 00:05:03,640 Speaker 5: where it's the central act of religious devotion, and there's 72 00:05:03,640 --> 00:05:06,599 Speaker 5: a bunch in between, and the Court does not want 73 00:05:06,880 --> 00:05:09,040 Speaker 5: distinctions drawn on that basis. 74 00:05:09,560 --> 00:05:13,599 Speaker 2: I was surprised that it was a unanimous decision. I mean, 75 00:05:13,839 --> 00:05:15,480 Speaker 2: do you find that surprising? 76 00:05:16,120 --> 00:05:21,560 Speaker 5: I really didn't. I understand and respect the intentions of 77 00:05:21,640 --> 00:05:24,440 Speaker 5: what Wisconsin was trying to do, but it was so 78 00:05:24,680 --> 00:05:29,000 Speaker 5: complicated and so intrusive, and the lines they were drawing 79 00:05:29,080 --> 00:05:35,359 Speaker 5: were so subjective that I think, whether you are generally 80 00:05:35,440 --> 00:05:41,000 Speaker 5: sympathetic with supporting religious groups or supportive of a strong 81 00:05:41,080 --> 00:05:43,680 Speaker 5: line between church and state, that this is not a 82 00:05:43,760 --> 00:05:45,040 Speaker 5: road you'd want to go down. 83 00:05:45,279 --> 00:05:50,720 Speaker 2: The next case, Mamood versus Taylor, involves religious rights, parental rights, 84 00:05:50,760 --> 00:05:55,680 Speaker 2: and LGBTQ rights. Religious parents sued a school district that 85 00:05:55,839 --> 00:06:01,120 Speaker 2: wanted to incorporate LGBTQ friendly books in its career, and 86 00:06:01,160 --> 00:06:05,240 Speaker 2: the divide on the court was apparent when Justice is 87 00:06:05,320 --> 00:06:11,000 Speaker 2: Samuel Alito and Sonya Socha Mayor disagreed over the storyline 88 00:06:11,120 --> 00:06:13,640 Speaker 2: of one of the books, Uncle Bobby's Wedding. 89 00:06:14,120 --> 00:06:18,400 Speaker 1: Uncle Bobby gets married to his boyfriend Jamie, and everybody's happy, 90 00:06:18,920 --> 00:06:23,600 Speaker 1: and everything is you know, it portrays this. Everyone accepts this, 91 00:06:23,880 --> 00:06:28,560 Speaker 1: except for the little girl Chloe, who has reservations about it. 92 00:06:28,920 --> 00:06:31,440 Speaker 1: But her mother corrects her, Now, you shouldn't have any 93 00:06:31,480 --> 00:06:34,800 Speaker 1: reservations about this. As I said, it has a clear mora, 94 00:06:38,640 --> 00:06:40,719 Speaker 1: It has a clear moral message. 95 00:06:41,640 --> 00:06:44,599 Speaker 4: Is looking at the pictures? Is there any affidavit from 96 00:06:44,640 --> 00:06:50,400 Speaker 4: any parent that merely looking at people getting married holding hands? 97 00:06:50,920 --> 00:06:53,279 Speaker 4: None of them are even kissing at any of these books. 98 00:06:54,400 --> 00:06:57,960 Speaker 4: The most they're doing is holding hands. That mere exposure 99 00:06:58,040 --> 00:06:59,120 Speaker 4: to that is coercion. 100 00:06:59,360 --> 00:07:03,160 Speaker 2: This decision, in which bolstered religious rights, came out six 101 00:07:03,240 --> 00:07:05,640 Speaker 2: to three down ideological lines. 102 00:07:06,040 --> 00:07:10,040 Speaker 5: This was a case in which a school board added 103 00:07:10,360 --> 00:07:16,800 Speaker 5: some LGBTQ plus friendly books to its curriculum, and initially 104 00:07:17,200 --> 00:07:21,040 Speaker 5: it provided notice to parents of when these books would 105 00:07:21,040 --> 00:07:24,360 Speaker 5: be studied and allowed the parents to pull their kids 106 00:07:24,440 --> 00:07:28,400 Speaker 5: out of those classes. But after a while they concluded 107 00:07:28,440 --> 00:07:33,320 Speaker 5: that this was defeating the purpose of broadening the portrayal 108 00:07:33,400 --> 00:07:37,400 Speaker 5: of family life in their courses, so they no longer 109 00:07:37,560 --> 00:07:40,160 Speaker 5: allowed opt out. So the case came to the Supreme 110 00:07:40,200 --> 00:07:44,560 Speaker 5: Court as to whether it denied the parents' free exercise 111 00:07:44,600 --> 00:07:47,560 Speaker 5: of religion to not be able to pull their children 112 00:07:47,800 --> 00:07:53,560 Speaker 5: out of classes that were presenting LGBTQ plus people in 113 00:07:53,680 --> 00:07:59,680 Speaker 5: a positive light, and the Court ultimately concluded that the 114 00:07:59,760 --> 00:08:03,520 Speaker 5: parents rights required the school district to make an opt 115 00:08:03,520 --> 00:08:08,400 Speaker 5: out available. Justice Thomas then said, you'd better not try 116 00:08:08,400 --> 00:08:13,320 Speaker 5: to get around this decision by integrating these materials broadly 117 00:08:13,400 --> 00:08:17,080 Speaker 5: into your curriculum, because we'll shut that down too. 118 00:08:17,840 --> 00:08:22,080 Speaker 2: And the case is concerning I think on several levels, 119 00:08:22,400 --> 00:08:25,440 Speaker 2: there was no evidence that the children would be harmed 120 00:08:25,840 --> 00:08:29,000 Speaker 2: or influenced by the books, and the school district was 121 00:08:29,120 --> 00:08:34,200 Speaker 2: just trying to expose the children to a more inclusive worldview. 122 00:08:34,800 --> 00:08:39,040 Speaker 2: This is another in a line of cases where LGBTQ 123 00:08:39,280 --> 00:08:44,680 Speaker 2: rights lose, and I'm wondering when or if the conservative 124 00:08:44,920 --> 00:08:47,720 Speaker 2: justices will start protecting those rights. 125 00:08:48,440 --> 00:08:52,720 Speaker 5: Well, the Court has certainly stepped way way back from 126 00:08:52,760 --> 00:08:56,800 Speaker 5: where it was when it recognized same sex marriage and 127 00:08:57,040 --> 00:09:00,240 Speaker 5: or virtufel, and even back from where it was when 128 00:09:00,280 --> 00:09:06,959 Speaker 5: it recognized employment discrimination against LGBTQ people as violation and 129 00:09:07,040 --> 00:09:11,440 Speaker 5: Title seven in the Bostock case. I take this case, 130 00:09:11,800 --> 00:09:16,800 Speaker 5: as you do, as being primarily about the Court's disdain 131 00:09:17,280 --> 00:09:22,440 Speaker 5: for LGBTQ rights rather than about paranal rights. There are 132 00:09:22,440 --> 00:09:26,000 Speaker 5: plenty of states around the country that are putting a 133 00:09:26,040 --> 00:09:31,439 Speaker 5: strong skew in their curriculum, prohibiting teaching things about the 134 00:09:31,480 --> 00:09:35,600 Speaker 5: history of African Americans about certain episodes in the country's history, 135 00:09:35,760 --> 00:09:41,000 Speaker 5: presenting the Civil War in a remarkably skewed in ahistorical event, 136 00:09:41,120 --> 00:09:43,760 Speaker 5: and I would be very surprised to see the Supreme 137 00:09:43,880 --> 00:09:48,120 Speaker 5: Court willing to give opt out or similar rights to 138 00:09:48,240 --> 00:09:53,240 Speaker 5: parents from those curricula. I think, unfortunately, this is part 139 00:09:53,280 --> 00:09:55,320 Speaker 5: of the Court's retrenchment on gay rights. 140 00:09:55,440 --> 00:09:58,480 Speaker 2: Yeah, and on the emergency docket, they allowed the Trump 141 00:09:58,480 --> 00:10:01,679 Speaker 2: administration to kick trends gender troops out of the military 142 00:10:01,760 --> 00:10:05,440 Speaker 2: and allow this new policy requiring passports to reflect the 143 00:10:05,559 --> 00:10:08,880 Speaker 2: sex on the holder's birth certificates, so they do appear 144 00:10:08,880 --> 00:10:11,080 Speaker 2: to be going in that direction, which brings us to 145 00:10:12,160 --> 00:10:16,840 Speaker 2: Us versus Scurmetti again, a sixty three decision on Tennessee's 146 00:10:16,880 --> 00:10:19,400 Speaker 2: ban on gender a firm and care for minors. 147 00:10:19,960 --> 00:10:24,479 Speaker 5: This is a case that should have been very difficult 148 00:10:24,520 --> 00:10:29,280 Speaker 5: for the court because the Court had already in Bostock 149 00:10:29,720 --> 00:10:34,439 Speaker 5: said that discrimination against people because they are gay or 150 00:10:34,480 --> 00:10:39,439 Speaker 5: because they're transgender is a violation of the statutory ban 151 00:10:39,559 --> 00:10:42,720 Speaker 5: on discrimination on the base of sex. Some were afraid 152 00:10:42,760 --> 00:10:46,719 Speaker 5: the court would overturn boss Stock. They didn't all though 153 00:10:46,760 --> 00:10:50,000 Speaker 5: some justices made clear they would love to. The majority 154 00:10:50,200 --> 00:10:54,080 Speaker 5: didn't overturn Bostock, but it turned it into a sort 155 00:10:54,080 --> 00:10:58,240 Speaker 5: of word play game where there's not perhaps that much 156 00:10:58,559 --> 00:11:04,679 Speaker 5: vitality left. They said, well, this isn't discriminating on the 157 00:11:04,720 --> 00:11:10,400 Speaker 5: basis of sex, because child designated at birth as male 158 00:11:10,679 --> 00:11:14,200 Speaker 5: who wants these treatments will be denied them on the 159 00:11:14,240 --> 00:11:18,600 Speaker 5: base of this policy. And a child designated at birth 160 00:11:18,640 --> 00:11:22,240 Speaker 5: as female who wants these treatments will be denied them 161 00:11:22,320 --> 00:11:26,040 Speaker 5: because they don't need these treatments. They're already female. And 162 00:11:26,320 --> 00:11:29,160 Speaker 5: if that's true, then you can play a word game 163 00:11:29,480 --> 00:11:32,560 Speaker 5: with just ave at anything. So the cord here is 164 00:11:32,760 --> 00:11:40,480 Speaker 5: a very minimum sterilizing BOSSTOC, limiting it to its specific holding. 165 00:11:40,920 --> 00:11:44,800 Speaker 5: But more generally, it seems to be willing to engage 166 00:11:44,960 --> 00:11:49,720 Speaker 5: in some quite dishonest wordplay to avoid the implications of 167 00:11:49,760 --> 00:11:52,920 Speaker 5: civil rights laws. We've certainly seen that in other civil 168 00:11:53,000 --> 00:11:56,160 Speaker 5: rights laws, but it's disturbing to see it quite this active. 169 00:11:56,559 --> 00:11:59,160 Speaker 2: We'll see if they follow suit in the decision over 170 00:11:59,360 --> 00:12:05,120 Speaker 2: Colorado ban on conversion therapy coming up next year. Let's 171 00:12:05,160 --> 00:12:09,880 Speaker 2: turn now to a case about reverse discrimination Ames versus 172 00:12:09,880 --> 00:12:11,920 Speaker 2: Ohio Department of Youth Services. 173 00:12:12,480 --> 00:12:16,320 Speaker 5: Well, this was a straight white woman who believed that 174 00:12:16,440 --> 00:12:21,840 Speaker 5: she was being discriminated against in various employment decisions, promotion 175 00:12:21,960 --> 00:12:27,360 Speaker 5: and emotion decisions, and her job, and sued for employment discrimination. 176 00:12:27,760 --> 00:12:33,480 Speaker 5: The Sixth Circuit, which covers Ohio, have a doctrine that said, 177 00:12:33,600 --> 00:12:36,480 Speaker 5: if you are suing for discrimination as a member of 178 00:12:36,520 --> 00:12:40,080 Speaker 5: the majority group, you need to present some evidence that 179 00:12:40,520 --> 00:12:43,920 Speaker 5: makes it likely for people to think that you were 180 00:12:44,000 --> 00:12:48,160 Speaker 5: discriminated against. The idea that the Sixth Circuit has is 181 00:12:48,520 --> 00:12:53,040 Speaker 5: someone who has the deck stacked in their favor needs 182 00:12:53,080 --> 00:12:55,680 Speaker 5: to show why this is not the case in a 183 00:12:55,720 --> 00:12:59,000 Speaker 5: particular setting, and she didn't do that, so she lost. 184 00:12:59,200 --> 00:13:04,120 Speaker 5: And the Supreme Court reversed and said that the standard 185 00:13:04,120 --> 00:13:08,480 Speaker 5: for discrimination cases bought by members that majority groups from 186 00:13:08,520 --> 00:13:12,440 Speaker 5: minority groups are the same. And the Court, i think 187 00:13:12,920 --> 00:13:17,000 Speaker 5: concluded that the standard that the Sixth Circuit had established 188 00:13:17,520 --> 00:13:22,200 Speaker 5: was just impossible to sustain in light of their holdings 189 00:13:22,240 --> 00:13:26,040 Speaker 5: in particularly the school affirmative action cases. So the Court 190 00:13:26,120 --> 00:13:29,520 Speaker 5: ended up being unanimous on this, Justice Jackson wrote for 191 00:13:29,600 --> 00:13:30,200 Speaker 5: the majority. 192 00:13:30,400 --> 00:13:32,800 Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue 193 00:13:32,840 --> 00:13:37,000 Speaker 2: this conversation with Georgetown law professor David Super. We'll look 194 00:13:37,000 --> 00:13:42,160 Speaker 2: at Supreme Court decisions involving nationwide injunctions, free speech, and 195 00:13:42,280 --> 00:13:46,080 Speaker 2: gun regulations. I'm June Grosso, and you're listening to Bloomberg. 196 00:13:47,240 --> 00:13:50,520 Speaker 2: One of the most high profile Supreme Court decisions of 197 00:13:50,559 --> 00:13:54,160 Speaker 2: the year was the case limiting the power of judges 198 00:13:54,280 --> 00:13:59,800 Speaker 2: to block government policies across the country, so called nationwide injunction. 199 00:14:00,400 --> 00:14:04,240 Speaker 2: The Court's conservatives and liberals split six to three in 200 00:14:04,440 --> 00:14:09,119 Speaker 2: Trump versus Kasa, a decision that President Trump praised. 201 00:14:09,679 --> 00:14:13,640 Speaker 6: Thanks to this decision, we can now promptly file to 202 00:14:13,720 --> 00:14:17,360 Speaker 6: proceed with numerous policies that have been wrongly enjoined on 203 00:14:17,440 --> 00:14:21,240 Speaker 6: a nationwide basis, and some of the cases we're talking 204 00:14:21,240 --> 00:14:25,920 Speaker 6: about would be ending birthright citizenship. 205 00:14:25,480 --> 00:14:28,600 Speaker 2: But that didn't happen, at least not yet. I've been 206 00:14:28,600 --> 00:14:32,480 Speaker 2: talking to Georgetown law professor David super about the Court's 207 00:14:32,480 --> 00:14:36,280 Speaker 2: opinions in twenty twenty five. David, this case was about 208 00:14:36,280 --> 00:14:40,720 Speaker 2: Trump's attempt to restrict birthright citizenship, but the decision was 209 00:14:40,760 --> 00:14:45,240 Speaker 2: about nationwide injunctions and limiting the power of judges to 210 00:14:45,360 --> 00:14:46,000 Speaker 2: issue them. 211 00:14:46,480 --> 00:14:48,520 Speaker 5: This is a case that got a lot of attention 212 00:14:48,640 --> 00:14:52,360 Speaker 5: that I frankly don't think it deserved. The practice of 213 00:14:52,680 --> 00:14:59,240 Speaker 5: some lower courts has been to enjoin the administration nationwide 214 00:14:59,400 --> 00:15:01,920 Speaker 5: from carry out a policy that the lower court's find 215 00:15:02,120 --> 00:15:06,400 Speaker 5: is illegal or unconstitutional. The Supreme Court says, you can't 216 00:15:06,840 --> 00:15:12,640 Speaker 5: just order a nationwide change on your own, but if 217 00:15:12,880 --> 00:15:15,480 Speaker 5: the case is file is a class action, then you 218 00:15:15,640 --> 00:15:20,680 Speaker 5: can order nationwide relief for a nationwide class So it's 219 00:15:20,720 --> 00:15:24,600 Speaker 5: going to require plaintiffs to file cases as class actions. 220 00:15:24,600 --> 00:15:27,520 Speaker 5: That's a little extra work in a few situations that 221 00:15:27,600 --> 00:15:29,720 Speaker 5: may not be easy to do, but most of the 222 00:15:29,760 --> 00:15:34,800 Speaker 5: time you can. And it's opened several other doors forgetting 223 00:15:35,040 --> 00:15:38,920 Speaker 5: national relief against what agencies are doing. So it's a 224 00:15:38,960 --> 00:15:42,360 Speaker 5: fairly technical case. It's a case in which the court 225 00:15:42,480 --> 00:15:47,000 Speaker 5: claims to be reaffirming its originalist credentials. I think they 226 00:15:47,000 --> 00:15:49,680 Speaker 5: also get the history wrong, but at least that's what 227 00:15:49,720 --> 00:15:53,560 Speaker 5: they say they're doing, and it won't change the outcome 228 00:15:53,880 --> 00:15:58,520 Speaker 5: in the cases about birthright citizenship. The lower courts we're 229 00:15:58,560 --> 00:16:03,200 Speaker 5: all able to reinstate their orders after playing this file 230 00:16:03,240 --> 00:16:06,000 Speaker 5: of the class action, so I don't think this is 231 00:16:06,000 --> 00:16:08,720 Speaker 5: going to affect there. In many cases, it certainly is 232 00:16:08,800 --> 00:16:11,920 Speaker 5: octom to affect birthright citizenship, which is back up to 233 00:16:11,960 --> 00:16:13,680 Speaker 5: the Secret Court off the merit SAT. 234 00:16:13,960 --> 00:16:17,800 Speaker 2: Let's turn to another case that divided the justices down 235 00:16:17,800 --> 00:16:23,080 Speaker 2: ideological lines six to three. Free Speech Coalition versus Paxton 236 00:16:23,760 --> 00:16:27,480 Speaker 2: was a challenge to a Texas law that required visitors 237 00:16:27,520 --> 00:16:31,880 Speaker 2: to pourn websites to verify their age, and several of 238 00:16:31,920 --> 00:16:36,760 Speaker 2: the justices expressed concerns about how easily teenagers can get 239 00:16:36,800 --> 00:16:40,840 Speaker 2: access to porn. Today. Here's Justice Amy Cony Barrett. 240 00:16:41,080 --> 00:16:48,479 Speaker 7: I mean kids can get online porn through gaming systems, tablets, phones, computers. 241 00:16:48,560 --> 00:16:50,640 Speaker 7: Let me just say that content filtering for all those 242 00:16:50,640 --> 00:16:53,960 Speaker 7: different devices, I can say from personal experience, is difficult 243 00:16:54,000 --> 00:16:54,520 Speaker 7: to keep up. 244 00:16:54,480 --> 00:16:57,080 Speaker 2: With tell us about this free speech challenge. 245 00:16:57,680 --> 00:17:02,600 Speaker 5: This deals with a question priorities. Porn can be denied 246 00:17:02,680 --> 00:17:05,920 Speaker 5: to minors. There's lots of psychological evidence it can be 247 00:17:06,000 --> 00:17:10,160 Speaker 5: quite destructive of miners. The Court is upheld shielding miners 248 00:17:10,160 --> 00:17:12,560 Speaker 5: from it. But there are many things that are not 249 00:17:12,920 --> 00:17:16,679 Speaker 5: acceptable for miners that are protected for adults by the 250 00:17:16,680 --> 00:17:19,680 Speaker 5: First Amendment. And the question here is which of those 251 00:17:19,800 --> 00:17:24,639 Speaker 5: do you prioritize protecting the miners or providing access for 252 00:17:24,720 --> 00:17:30,640 Speaker 5: the adults? And taxes enacted this law requiring age verification 253 00:17:31,119 --> 00:17:35,760 Speaker 5: by porn sites that the Supreme Court majority upheld as 254 00:17:35,840 --> 00:17:40,360 Speaker 5: consistent with protecting miners. The Ascent said it's got too 255 00:17:40,440 --> 00:17:44,760 Speaker 5: much of an impact on adults and is therefore a 256 00:17:44,880 --> 00:17:46,120 Speaker 5: denial of free speech. 257 00:17:46,600 --> 00:17:50,399 Speaker 2: Half the states now have these age verification laws. Do 258 00:17:50,440 --> 00:17:52,879 Speaker 2: you think that a few of the cases this year 259 00:17:53,119 --> 00:17:57,360 Speaker 2: can be looked at in terms of reaffirming states rights. 260 00:17:57,960 --> 00:18:01,879 Speaker 5: You could say that, but I think the Court is 261 00:18:02,040 --> 00:18:06,280 Speaker 5: not a serious federalist court. They are strongly in favor 262 00:18:06,320 --> 00:18:08,560 Speaker 5: of states doing what they like the states to do, 263 00:18:08,920 --> 00:18:12,280 Speaker 5: and they are absolutely appalled when the states do something 264 00:18:12,320 --> 00:18:15,399 Speaker 5: they don't like. So it's very hard to see a 265 00:18:15,640 --> 00:18:19,000 Speaker 5: meaningful States rights theme in what the Court is doing. 266 00:18:19,040 --> 00:18:21,439 Speaker 5: You certainly could ten to fifteen years ago, but I 267 00:18:21,440 --> 00:18:22,840 Speaker 5: don't think you can now. 268 00:18:22,920 --> 00:18:25,560 Speaker 2: Let's look at a case that was applauded by gun 269 00:18:25,600 --> 00:18:29,560 Speaker 2: safety advocates, Bondi versus Van der Stock. It was a 270 00:18:29,560 --> 00:18:34,320 Speaker 2: seventy two decision about ghost gun kits with Clarence Thomas 271 00:18:34,400 --> 00:18:38,879 Speaker 2: and Samuel Alito in descent. No surprise there. It seemed 272 00:18:38,880 --> 00:18:40,159 Speaker 2: like a pretty easy case. 273 00:18:40,600 --> 00:18:42,879 Speaker 5: It really was a pretty easy case. It was a 274 00:18:42,920 --> 00:18:45,560 Speaker 5: gun case, but not a Second Amendment case, or not 275 00:18:45,760 --> 00:18:49,840 Speaker 5: meaningfully a Second Amendment case. The Gun Control Act that 276 00:18:50,000 --> 00:18:53,240 Speaker 5: was passed right after doctor King and R. F. Kennedy 277 00:18:53,320 --> 00:18:58,280 Speaker 5: Senior were assassinated gave the Bureau of Tobacco and Firearms 278 00:18:58,480 --> 00:19:05,359 Speaker 5: the authority to regulate certain weapons. And the advent of 279 00:19:05,840 --> 00:19:09,800 Speaker 5: ghost guns of gun kits that could be rapidly assembled 280 00:19:09,920 --> 00:19:13,959 Speaker 5: without serial numbers so the guns would be untraceable, prompted 281 00:19:14,240 --> 00:19:17,920 Speaker 5: the government to put out regulations restricting them in some 282 00:19:18,000 --> 00:19:21,160 Speaker 5: of the same ways that other guns are restricted. And 283 00:19:21,280 --> 00:19:25,679 Speaker 5: the gun lobby and the gun manufacturers said, oh, you 284 00:19:25,800 --> 00:19:29,960 Speaker 5: have no authority to do this under the statute. So 285 00:19:30,160 --> 00:19:33,679 Speaker 5: as an administrative law you must stop. Not a Second 286 00:19:33,720 --> 00:19:38,639 Speaker 5: Amendment case, just an argument the agency exceeded its lawful authority, 287 00:19:39,160 --> 00:19:42,560 Speaker 5: and the Supreme Court majority said no, this is actually 288 00:19:42,600 --> 00:19:46,760 Speaker 5: squarely within the Act. All we require is that there 289 00:19:46,840 --> 00:19:51,760 Speaker 5: be a weapon and that it be capable of ejecting 290 00:19:51,800 --> 00:19:57,040 Speaker 5: a projectile with some modification. Starter pistols have been regulated 291 00:19:57,200 --> 00:20:01,120 Speaker 5: since time immemorial, and this is really no different than 292 00:20:01,160 --> 00:20:04,399 Speaker 5: that this is a gun minus a little bit of work, 293 00:20:04,600 --> 00:20:06,639 Speaker 5: which is certainly something they could regulate. 294 00:20:07,080 --> 00:20:10,480 Speaker 2: In June, the Court declined to consider a new expansion 295 00:20:10,480 --> 00:20:14,480 Speaker 2: of constitutional gun rights, turning away challenges to a Maryland 296 00:20:14,520 --> 00:20:17,840 Speaker 2: ban on assault weapons and a Rhode Island prohibition on 297 00:20:17,920 --> 00:20:22,360 Speaker 2: high capacity magazines. Can we read anything into that declination 298 00:20:22,840 --> 00:20:24,960 Speaker 2: plus what we saw on the Ghostguns case. 299 00:20:25,520 --> 00:20:29,959 Speaker 5: The Ghost Guns case is basically an administrative law case. 300 00:20:30,520 --> 00:20:33,600 Speaker 5: The claim that was brought by the gun industry was laughable, 301 00:20:33,880 --> 00:20:36,679 Speaker 5: and I think they were hoping that because they're the 302 00:20:36,680 --> 00:20:39,440 Speaker 5: gun industry and they're supposed to win everything, that they 303 00:20:39,480 --> 00:20:42,080 Speaker 5: could win even with a case that no one else could. 304 00:20:42,440 --> 00:20:46,040 Speaker 5: And the Supreme Court, I think maybe was a bit 305 00:20:46,119 --> 00:20:50,679 Speaker 5: insulted at such a brazen presentation of an awful case. 306 00:20:50,960 --> 00:20:55,040 Speaker 5: Denials are very hard to read. There's often a lot 307 00:20:55,040 --> 00:20:58,080 Speaker 5: of strategy going into them. The Supreme Court's in a 308 00:20:58,080 --> 00:21:01,040 Speaker 5: bind here, though, because it's talk more and more and 309 00:21:01,160 --> 00:21:05,320 Speaker 5: more about originalism, and yet its interpretation of the Second 310 00:21:05,359 --> 00:21:09,200 Speaker 5: Amendment is completely anti originalists. So every time it takes 311 00:21:09,240 --> 00:21:13,639 Speaker 5: a Second Amendment case, it has to choose between embarrassing 312 00:21:13,760 --> 00:21:19,200 Speaker 5: its originalists ideals and philosophy and offending the gun lobby. 313 00:21:19,520 --> 00:21:23,320 Speaker 5: And not taking cases is a way of avoiding putting 314 00:21:23,320 --> 00:21:27,160 Speaker 5: itself to that kind of decision. The simplest approach would 315 00:21:27,160 --> 00:21:30,800 Speaker 5: be to reverse Brown and Heller and go back to 316 00:21:30,840 --> 00:21:33,920 Speaker 5: an originalist view of the Second Amendment, but apparently that's 317 00:21:33,920 --> 00:21:34,720 Speaker 5: a bridge too far. 318 00:21:35,000 --> 00:21:38,320 Speaker 2: Let's turn to a unanimous decision next, where the Court 319 00:21:38,440 --> 00:21:43,200 Speaker 2: signed with the FDA's rejection of applications for vaping products 320 00:21:43,359 --> 00:21:47,480 Speaker 2: formulated to taste like fruit or candy and likely to 321 00:21:47,520 --> 00:21:51,800 Speaker 2: be used by kids as just as Elena Kagan explained. 322 00:21:51,760 --> 00:21:58,000 Speaker 8: Flavors you give people blueberry vapes. The difficulty with that, 323 00:21:58,200 --> 00:22:01,560 Speaker 8: and FDA I think has tried to document this, is 324 00:22:01,560 --> 00:22:04,760 Speaker 8: that blueberry vapes are very appealing to sixteen year olds, 325 00:22:04,840 --> 00:22:06,080 Speaker 8: not to forty year olds. 326 00:22:06,560 --> 00:22:09,160 Speaker 5: We were talking about the gun industry earlier, and now 327 00:22:09,160 --> 00:22:14,240 Speaker 5: we come to the tobacco industry. There equal in consumer abuse, 328 00:22:14,800 --> 00:22:21,840 Speaker 5: and the tobacco industry is selling vaping products nominally to 329 00:22:22,200 --> 00:22:25,840 Speaker 5: get existing smokers off of cigarettes, but in fact to 330 00:22:26,119 --> 00:22:30,240 Speaker 5: attract a whole new set of young people to endasure 331 00:22:30,280 --> 00:22:35,960 Speaker 5: their health. And the FDA rejected marketing approval for a 332 00:22:36,040 --> 00:22:40,359 Speaker 5: number of these items, and the tobacco company said, well, 333 00:22:40,840 --> 00:22:44,440 Speaker 5: the ground sited in the denial don't quite match up 334 00:22:44,680 --> 00:22:48,280 Speaker 5: with some of the things that the FDA said earlier, 335 00:22:48,720 --> 00:22:53,520 Speaker 5: so that's a violation of administrative law. And the Supreme 336 00:22:53,600 --> 00:22:56,920 Speaker 5: Court gave us a long winded version of oh, come on, 337 00:22:57,240 --> 00:23:00,920 Speaker 5: and they said that it was very clear that the 338 00:23:01,000 --> 00:23:03,520 Speaker 5: FDA had acted in just the way that it had 339 00:23:03,600 --> 00:23:07,160 Speaker 5: said before, that there's no reason the cigarette companies should 340 00:23:07,240 --> 00:23:10,280 Speaker 5: have thought that it was going to come out any differently. 341 00:23:10,760 --> 00:23:14,400 Speaker 5: In other cases, when the FDA provided a somewhat more 342 00:23:14,440 --> 00:23:17,800 Speaker 5: thorough review, it came to the same result. And there's 343 00:23:17,800 --> 00:23:20,880 Speaker 5: simply no reason to think that sending it back the 344 00:23:20,920 --> 00:23:24,240 Speaker 5: FDA would get any different result. And it cited the 345 00:23:24,240 --> 00:23:29,159 Speaker 5: administrative ziject, which specifically tells courts not to interfere in 346 00:23:29,240 --> 00:23:32,119 Speaker 5: cases where the result clearly was correct. 347 00:23:32,160 --> 00:23:35,960 Speaker 2: David, does this case say anything more about the court 348 00:23:36,119 --> 00:23:41,280 Speaker 2: affirming the FDA's authority or is it confined to its facts? 349 00:23:41,920 --> 00:23:48,200 Speaker 5: This case is I think more interesting in general administrative 350 00:23:48,280 --> 00:23:52,040 Speaker 5: law terms than it is in tobacco or FDA terms. 351 00:23:52,200 --> 00:23:55,040 Speaker 5: There's been a controversy going back at least to the 352 00:23:55,040 --> 00:23:59,919 Speaker 5: Reagan administration, arguably earlier, about what agencies have to do 353 00:24:00,080 --> 00:24:02,960 Speaker 5: when they change their positions, and we've got a lot 354 00:24:03,000 --> 00:24:06,160 Speaker 5: of that going on right now because Trump appointees are 355 00:24:06,200 --> 00:24:10,800 Speaker 5: pretty different than Biden appointees. And the Court here said 356 00:24:11,040 --> 00:24:14,320 Speaker 5: that agencies don't have to go through a lot of 357 00:24:14,480 --> 00:24:19,880 Speaker 5: process when the change in their position is small and predictable. 358 00:24:20,200 --> 00:24:24,760 Speaker 5: So if the Trump officials want to make minor changes 359 00:24:24,800 --> 00:24:27,840 Speaker 5: around the edges as to what by people were doing, 360 00:24:28,160 --> 00:24:31,879 Speaker 5: that there won't be a need for something fairly elaborate. 361 00:24:32,119 --> 00:24:34,280 Speaker 5: I am not aware of a lot of Trump administration 362 00:24:34,359 --> 00:24:37,120 Speaker 5: officials that are making only minor changes, but I'm sure 363 00:24:37,160 --> 00:24:40,760 Speaker 5: there's some out there somewhere. And so the court said 364 00:24:40,760 --> 00:24:43,040 Speaker 5: that if the change is minor, you don't need an 365 00:24:43,080 --> 00:24:46,840 Speaker 5: intricate procedure, and that will, I think be useful guidance 366 00:24:47,119 --> 00:24:49,920 Speaker 5: as agencies rEFInd their policies of the future. 367 00:24:50,400 --> 00:24:55,760 Speaker 2: Finally, Medina versus Planned Parenthood, it was about individual Medicaid patients' 368 00:24:55,760 --> 00:24:58,600 Speaker 2: ability to sue. Is it having an effect. 369 00:24:58,960 --> 00:25:05,400 Speaker 5: There's a provision in the Medicaid Statute assuring patients beneficiaries 370 00:25:05,760 --> 00:25:08,800 Speaker 5: of the right to choose their providers. Most of us 371 00:25:09,200 --> 00:25:12,600 Speaker 5: care a lot about who our healthcare provider is, and 372 00:25:13,040 --> 00:25:16,879 Speaker 5: this was understood in Medicaid, which was trying to provide 373 00:25:16,920 --> 00:25:20,640 Speaker 5: health insurance as similar to other health insurance as they 374 00:25:20,680 --> 00:25:25,320 Speaker 5: feasibly could. And the question is when a state violates that, 375 00:25:26,000 --> 00:25:30,919 Speaker 5: can beneficiaries sue? And the Supreme Court in a number 376 00:25:30,960 --> 00:25:35,640 Speaker 5: of cases over the years, has cut back on when 377 00:25:36,359 --> 00:25:39,000 Speaker 5: you can sue when the law is violated. It's a 378 00:25:39,000 --> 00:25:43,679 Speaker 5: strange concept for non lawyers that someone has violated the 379 00:25:43,760 --> 00:25:45,960 Speaker 5: law in a way that hurts you when you can't sue, 380 00:25:46,359 --> 00:25:50,280 Speaker 5: But that's what the Supreme Court has said. And in 381 00:25:50,320 --> 00:25:55,560 Speaker 5: this case of state are trying to throw planned parenthood 382 00:25:55,640 --> 00:26:00,520 Speaker 5: out of Medicaid, and presumably because they think boasure to 383 00:26:00,600 --> 00:26:04,600 Speaker 5: planned parenthood will cause some people to think about abortions 384 00:26:04,680 --> 00:26:08,800 Speaker 5: or about birth control. And the Supreme Court held that 385 00:26:09,359 --> 00:26:13,000 Speaker 5: people denied choice of provider by these laws do not 386 00:26:13,080 --> 00:26:14,160 Speaker 5: have the right to go to court. 387 00:26:14,400 --> 00:26:18,400 Speaker 2: It's striking to me that in cases involving culture war 388 00:26:18,480 --> 00:26:23,720 Speaker 2: issues we almost always see the six to three ideological split, 389 00:26:24,200 --> 00:26:27,280 Speaker 2: with the court's conservative super majority prevailing. 390 00:26:27,320 --> 00:26:30,639 Speaker 5: Of course, well, I mean almost all the cases you 391 00:26:30,680 --> 00:26:35,440 Speaker 5: asked me about our cases with important social concerns. One 392 00:26:35,480 --> 00:26:39,280 Speaker 5: of these days we'll do a riveting podcast on securities 393 00:26:39,359 --> 00:26:44,840 Speaker 5: law cases. So these are all significant cases. The unanimous ones, 394 00:26:44,880 --> 00:26:47,719 Speaker 5: I think, are mostly ones where a lower court just 395 00:26:47,880 --> 00:26:51,520 Speaker 5: got very lost and did something that was so unreasonable 396 00:26:51,600 --> 00:26:55,040 Speaker 5: that either the liberal justices or the conservative justice were 397 00:26:55,080 --> 00:26:58,280 Speaker 5: not willing to stand behind it. The one example that 398 00:26:58,320 --> 00:27:02,040 Speaker 5: would seem to be an exception is the Oklahoma case 399 00:27:02,080 --> 00:27:05,720 Speaker 5: that we talked about, where there was a conservative justice 400 00:27:05,720 --> 00:27:08,800 Speaker 5: who voted with the liberal justice to get to the 401 00:27:08,840 --> 00:27:14,200 Speaker 5: four to four impass. So it's not a completely ideological court. 402 00:27:14,520 --> 00:27:19,600 Speaker 5: There were four conservatives that voted with the liberal justices 403 00:27:19,760 --> 00:27:24,200 Speaker 5: on the ghost guns case, recognizing that the arguments there 404 00:27:24,240 --> 00:27:28,560 Speaker 5: were quite foolish. But yes, the court is quite polarized 405 00:27:28,760 --> 00:27:34,080 Speaker 5: on culture war cases and on executive power cases. So 406 00:27:34,400 --> 00:27:39,080 Speaker 5: we don't have the kind of national mediating institution in 407 00:27:39,160 --> 00:27:43,560 Speaker 5: the court that we did in earlier years when it 408 00:27:43,640 --> 00:27:47,399 Speaker 5: all came down to Justice O'Connor or Justice Kennedy, or 409 00:27:47,520 --> 00:27:50,440 Speaker 5: back in the nineteen seventies when you had two very 410 00:27:50,480 --> 00:27:54,719 Speaker 5: liberal justices, two very conservative justice and five legitimately up 411 00:27:54,760 --> 00:27:57,359 Speaker 5: for grabs swing justices. We don't have that kind of 412 00:27:57,359 --> 00:27:58,080 Speaker 5: court anymore. 413 00:27:58,240 --> 00:28:01,280 Speaker 2: No one can dispute that so much. David for helping 414 00:28:01,359 --> 00:28:05,440 Speaker 2: us understand the implications of the decisions this year. That's 415 00:28:05,440 --> 00:28:09,880 Speaker 2: Georgetown law professor David super Coming up next. Luigi Mangioni 416 00:28:09,920 --> 00:28:13,920 Speaker 2: is trying to get crucial prosecution evidence thrown out. I'm 417 00:28:14,000 --> 00:28:17,760 Speaker 2: June Grosso. When you're listening to Bloomberg player. 418 00:28:17,480 --> 00:28:20,920 Speaker 9: Number one, what is the address of your emergency? It's 419 00:28:21,119 --> 00:28:25,439 Speaker 9: really an emergency. I'm a manager at SLINKERD McDonald's out 420 00:28:25,480 --> 00:28:29,280 Speaker 9: here in the boulevard, Okay, and I have a customer 421 00:28:29,359 --> 00:28:32,439 Speaker 9: here that some other customers were suspicious of that he 422 00:28:32,480 --> 00:28:36,240 Speaker 9: looked like the CEO shooter from New York, Okay. 423 00:28:36,680 --> 00:28:39,000 Speaker 2: That was a nine to one one call that led 424 00:28:39,040 --> 00:28:43,920 Speaker 2: police to the McDonald's in Altoona, Pennsylvania, where Luigi Mangioni 425 00:28:44,080 --> 00:28:48,000 Speaker 2: was eating breakfast last December. Mangioni is trying to get 426 00:28:48,000 --> 00:28:52,080 Speaker 2: a judge to exclude crucial evidence from an eventual trial 427 00:28:52,160 --> 00:28:56,120 Speaker 2: on charges that he murdered United Health Group executive Brian 428 00:28:56,240 --> 00:28:59,840 Speaker 2: Thompson last year in New York. At an evidentiary hearing 429 00:29:00,080 --> 00:29:04,800 Speaker 2: that span seven days of testimony from seventeen witnesses, prosecutors 430 00:29:04,840 --> 00:29:08,440 Speaker 2: played body camera footage of his arrest at the McDonald's, 431 00:29:08,840 --> 00:29:13,200 Speaker 2: starting with an officer approaching mangione and asking for id. 432 00:29:13,360 --> 00:29:15,360 Speaker 5: Hens out off the car. 433 00:29:15,640 --> 00:29:19,520 Speaker 9: Yes, sir, that's good Shire, Hi do okay? 434 00:29:20,960 --> 00:29:25,760 Speaker 5: What's your name? What is it Mark? Mark? You said, Mark? 435 00:29:25,800 --> 00:29:26,800 Speaker 9: What? Lluria? 436 00:29:27,000 --> 00:29:30,560 Speaker 5: I'm sorry? Someone called either thought you were suspicious? Polson 437 00:29:31,720 --> 00:29:32,360 Speaker 5: to driving on. 438 00:29:33,000 --> 00:29:33,160 Speaker 4: Yes. 439 00:29:34,320 --> 00:29:37,960 Speaker 2: It ended with Mangioni in handcuffs, but not before a 440 00:29:37,960 --> 00:29:42,280 Speaker 2: police officer rifled through his backpack, finding a loaded gun 441 00:29:42,360 --> 00:29:45,840 Speaker 2: magazine wrapped in a pair of underwear. Police searched the 442 00:29:45,920 --> 00:29:49,840 Speaker 2: backpack more thoroughly at the police station and found evidence, 443 00:29:50,000 --> 00:29:54,720 Speaker 2: including a nine millimeter handgun that prosecutors say matches the 444 00:29:54,800 --> 00:29:58,800 Speaker 2: gun used to kill Thompson, a silencer, a passport, and 445 00:29:58,920 --> 00:30:02,880 Speaker 2: a notebook they've disc described as a manifesto. But police 446 00:30:03,080 --> 00:30:07,200 Speaker 2: didn't get a warrant until after both searches of the backpack, 447 00:30:07,320 --> 00:30:11,880 Speaker 2: and the defense says that violates Mangioni's constitutional rights against 448 00:30:11,960 --> 00:30:15,800 Speaker 2: illegal search and seizure, and all that evidence should be 449 00:30:15,840 --> 00:30:20,680 Speaker 2: thrown out. Mangioni has pleaded not guilty to nine state counts, 450 00:30:20,680 --> 00:30:25,080 Speaker 2: including second degree murder and various weapons charges. He's also 451 00:30:25,240 --> 00:30:29,640 Speaker 2: pleaded not guilty to four federal charges in a separate case. 452 00:30:29,960 --> 00:30:33,360 Speaker 2: My guest is former federal prosecutor Robert Mintz, a partner 453 00:30:33,440 --> 00:30:37,200 Speaker 2: MC carter. In English, Bob, there are suppression hearings all 454 00:30:37,280 --> 00:30:41,200 Speaker 2: the time in criminal cases, although probably not lasting as 455 00:30:41,320 --> 00:30:43,800 Speaker 2: long with as many as seventeen witnesses. 456 00:30:44,160 --> 00:30:46,560 Speaker 10: That's true, And what you have when you're a defense 457 00:30:46,640 --> 00:30:51,160 Speaker 10: lawyer heading into a criminal trial are really very few 458 00:30:51,280 --> 00:30:54,960 Speaker 10: weapons to try to knock out the government's case before 459 00:30:55,000 --> 00:30:58,000 Speaker 10: you go to trial. Once there is an indictment, you 460 00:30:58,120 --> 00:31:01,960 Speaker 10: really have the opportunity only to try to suppress certain evidence. 461 00:31:02,200 --> 00:31:05,240 Speaker 10: In other words, argue to the court that the evidence 462 00:31:05,320 --> 00:31:09,320 Speaker 10: obtained by prosecutors and that prosecutors intend to rely on 463 00:31:09,600 --> 00:31:13,480 Speaker 10: to gain a conviction at trial, were somehow obtained illegally 464 00:31:13,680 --> 00:31:17,959 Speaker 10: in violation of your client's constitutional rights, and therefore should 465 00:31:18,000 --> 00:31:20,600 Speaker 10: not be used at the trial. So what we're seeing 466 00:31:20,600 --> 00:31:22,960 Speaker 10: here is something that defense lawyers try to do all 467 00:31:23,000 --> 00:31:25,560 Speaker 10: the time, but as you say, this has turned into 468 00:31:25,600 --> 00:31:30,600 Speaker 10: a much more protracted hearing, going approximately three weeks. Still, 469 00:31:30,680 --> 00:31:33,440 Speaker 10: at the end of the day, any suppression hearing in 470 00:31:33,480 --> 00:31:36,600 Speaker 10: any criminal case is going to be an uphill battle 471 00:31:36,640 --> 00:31:39,640 Speaker 10: for the defense because what the defense is really trying 472 00:31:39,680 --> 00:31:42,800 Speaker 10: to do here is knock out critical evidence that could 473 00:31:42,840 --> 00:31:45,520 Speaker 10: be used against their client and would have a very 474 00:31:45,560 --> 00:31:49,160 Speaker 10: significant impact on the likely outcome of the trial. So 475 00:31:49,400 --> 00:31:54,360 Speaker 10: judges are generally speaking reluctant to suppress key evidence before 476 00:31:54,400 --> 00:31:58,800 Speaker 10: a trial. One interesting aspect of this lengthy suppression hearing 477 00:31:59,320 --> 00:32:02,520 Speaker 10: is that even if the defense loses its motion to 478 00:32:02,560 --> 00:32:06,000 Speaker 10: suppress its evidence, as it likely will, there's still a 479 00:32:06,080 --> 00:32:09,400 Speaker 10: huge benefit for the defense because they've now heard testimony 480 00:32:09,520 --> 00:32:13,080 Speaker 10: from a large number of police officers who will testify 481 00:32:13,160 --> 00:32:15,520 Speaker 10: at the trial, and what it gives them is a 482 00:32:15,680 --> 00:32:19,320 Speaker 10: preview of the state's case, and it also gives them 483 00:32:19,360 --> 00:32:22,640 Speaker 10: a script by which they can cross examine those witnesses 484 00:32:23,040 --> 00:32:24,080 Speaker 10: later at trial. 485 00:32:24,480 --> 00:32:27,480 Speaker 11: So even if they lose this case, there's still. 486 00:32:27,320 --> 00:32:30,400 Speaker 10: A benefit to the defense, and they can essentially lose 487 00:32:30,440 --> 00:32:33,480 Speaker 10: the battle but potentially win the war down the road 488 00:32:33,760 --> 00:32:37,720 Speaker 10: by using the testimony at the suppression hearing against those witnesses. 489 00:32:37,760 --> 00:32:40,880 Speaker 2: At trial, now, the defense is arguing that the police 490 00:32:41,080 --> 00:32:44,120 Speaker 2: should have gotten a warrant before searching the backpack. 491 00:32:44,440 --> 00:32:47,560 Speaker 10: Essentially, what the defense has argued with regard to the 492 00:32:47,600 --> 00:32:51,160 Speaker 10: backpack is that the search was illegal and therefore all 493 00:32:51,200 --> 00:32:54,640 Speaker 10: of the evidence obtained from that search the key evidence 494 00:32:54,760 --> 00:32:57,720 Speaker 10: in that backpack that is absolutely critical to the state 495 00:32:57,800 --> 00:33:00,960 Speaker 10: being able to prove its case at trial. It includes, 496 00:33:01,080 --> 00:33:04,320 Speaker 10: among other things, the gun that the state alleged was 497 00:33:04,480 --> 00:33:05,600 Speaker 10: used in the shooting. 498 00:33:06,000 --> 00:33:09,520 Speaker 11: They argue that the search was illegal. 499 00:33:09,200 --> 00:33:12,160 Speaker 10: Because it was not done pursuant to a warrant, And 500 00:33:12,200 --> 00:33:14,720 Speaker 10: what the defense has said is that a warrant could 501 00:33:14,720 --> 00:33:18,320 Speaker 10: have been obtained, and in fact was not until much later. 502 00:33:18,880 --> 00:33:23,080 Speaker 10: During the hearing, there was evidence played from the bodycam 503 00:33:23,120 --> 00:33:26,760 Speaker 10: footage of the police officers where you see officers debating 504 00:33:26,800 --> 00:33:29,760 Speaker 10: among themselves whether they should get a warrant to search 505 00:33:29,800 --> 00:33:33,040 Speaker 10: the backpack at the McDonald's. 506 00:33:32,200 --> 00:33:33,640 Speaker 11: Or where they should wait and. 507 00:33:33,600 --> 00:33:36,400 Speaker 10: Bring the backpack back to the police station and then 508 00:33:36,480 --> 00:33:39,480 Speaker 10: get the warrant. Ultimately, they decide not to get the 509 00:33:39,520 --> 00:33:42,240 Speaker 10: warrant at the McDonald's, to go back to the police 510 00:33:42,240 --> 00:33:45,560 Speaker 10: station and to get the warrant only after the backpack 511 00:33:45,760 --> 00:33:47,680 Speaker 10: has been searched back at the police station. 512 00:33:48,400 --> 00:33:52,040 Speaker 2: Prosecutors argue the search was legal because it was an 513 00:33:52,120 --> 00:33:57,200 Speaker 2: exception to the warrant requirement, and the police officers testified 514 00:33:57,280 --> 00:33:59,800 Speaker 2: that they were looking in the backpack to see if 515 00:33:59,800 --> 00:34:04,960 Speaker 2: they're any explosives or other dangerous items. But on cross examination, 516 00:34:05,440 --> 00:34:09,560 Speaker 2: the defense attorney asked the officer why she continued to 517 00:34:09,640 --> 00:34:12,600 Speaker 2: search through the bag without a warrant even after she 518 00:34:12,760 --> 00:34:16,560 Speaker 2: determined that there were no explosives, and why police never 519 00:34:16,680 --> 00:34:21,160 Speaker 2: cleared the restaurant of customers and employees if they thought 520 00:34:21,200 --> 00:34:22,319 Speaker 2: there was an explosive. 521 00:34:22,800 --> 00:34:26,320 Speaker 11: What the prosecution has argued here is that the search 522 00:34:26,680 --> 00:34:30,240 Speaker 11: was legal because it was done pursuing to an exception, 523 00:34:30,640 --> 00:34:33,960 Speaker 11: and that is called a search incident to arrests. So 524 00:34:34,000 --> 00:34:37,799 Speaker 11: what prosecutors have said was, at the time that the police. 525 00:34:37,480 --> 00:34:41,759 Speaker 10: Officers approached mister Mangioni at that McDonald's, they asked for 526 00:34:41,800 --> 00:34:46,279 Speaker 10: his identification. He gave them a false identification and he 527 00:34:46,360 --> 00:34:50,160 Speaker 10: identified himself as Mark Rosario, giving him a false name. 528 00:34:50,360 --> 00:34:53,560 Speaker 10: Police officers ran that information. They quickly learned that the 529 00:34:53,600 --> 00:34:57,080 Speaker 10: identification was false, and the prosecution that we argues that 530 00:34:57,160 --> 00:35:00,840 Speaker 10: the search was done incident to the arrest, the crime 531 00:35:01,000 --> 00:35:04,640 Speaker 10: being giving false information and a false ID to the 532 00:35:04,640 --> 00:35:08,360 Speaker 10: Altoona Police officers, and so they're saying that the search 533 00:35:08,719 --> 00:35:13,000 Speaker 10: is legal cause its incident to arrest, although typically a 534 00:35:13,040 --> 00:35:17,680 Speaker 10: search incident to arrest is done for purposes of securing 535 00:35:17,719 --> 00:35:20,920 Speaker 10: the safety of the officers and of the surrounding people. 536 00:35:21,160 --> 00:35:24,320 Speaker 10: And that's why the defense focused a lot on trying 537 00:35:24,360 --> 00:35:27,920 Speaker 10: to demonstrate that the search of the backpack went beyond 538 00:35:28,360 --> 00:35:31,399 Speaker 10: merely determining that there was nothing in there that could 539 00:35:31,440 --> 00:35:33,319 Speaker 10: be a threat to the officers or a threat to 540 00:35:33,360 --> 00:35:36,560 Speaker 10: anybody else in the McDonald's, that they went beyond what 541 00:35:36,640 --> 00:35:39,360 Speaker 10: we should have been permitted in a search incident to 542 00:35:39,520 --> 00:35:44,080 Speaker 10: arrest to look for evidence rather than merely determining that 543 00:35:44,120 --> 00:35:46,279 Speaker 10: there is nothing in the backpack that would pose a 544 00:35:46,400 --> 00:35:48,240 Speaker 10: threat to the officers or to the public. 545 00:35:48,600 --> 00:35:53,279 Speaker 2: So minutes after the police approached Mangoni in the McDonald's, 546 00:35:53,320 --> 00:35:55,480 Speaker 2: he told an officer that he didn't want to talk, 547 00:35:55,719 --> 00:35:59,120 Speaker 2: that's according to video and testimony, But police continued asking 548 00:35:59,200 --> 00:36:03,000 Speaker 2: him questions and he continued answering, and nearly twenty minutes 549 00:36:03,040 --> 00:36:06,480 Speaker 2: fast before they read him the miranda warnings, and so 550 00:36:06,680 --> 00:36:10,280 Speaker 2: his lawyer is arguing that any of his statements should 551 00:36:10,320 --> 00:36:11,000 Speaker 2: be excluded. 552 00:36:11,560 --> 00:36:15,440 Speaker 10: So the body camera footage does show that an officer 553 00:36:15,520 --> 00:36:18,960 Speaker 10: read mister Mangoni his Miranda rights, but it wasn't until 554 00:36:19,000 --> 00:36:22,719 Speaker 10: twenty minutes after they first started asking questions, and mister 555 00:36:22,800 --> 00:36:25,560 Speaker 10: Mangoni had said that he did not want to. 556 00:36:25,520 --> 00:36:26,680 Speaker 5: Answer their questions. 557 00:36:26,800 --> 00:36:30,399 Speaker 10: He did not ask for an attorney, otherwise officers would 558 00:36:30,400 --> 00:36:32,880 Speaker 10: have had to have stopped asking those questions. But the 559 00:36:32,960 --> 00:36:36,120 Speaker 10: question raised by the defense lawyers was should he have 560 00:36:36,239 --> 00:36:40,680 Speaker 10: been apprized of his miranda rights sooner? Miranda rights are 561 00:36:40,719 --> 00:36:44,160 Speaker 10: the all important advisement of a defendant's right to remain 562 00:36:44,280 --> 00:36:47,080 Speaker 10: silent and the right to have an attorney before any 563 00:36:47,160 --> 00:36:51,200 Speaker 10: questioning continues, and the defense has argued that not only 564 00:36:51,239 --> 00:36:55,440 Speaker 10: the comments made by mister Mangoni on December ninth at 565 00:36:55,440 --> 00:36:57,080 Speaker 10: the McDonald's. 566 00:36:56,360 --> 00:36:58,600 Speaker 11: Should be suppressed, but also his. 567 00:36:58,600 --> 00:37:01,880 Speaker 10: Comments through his tradition to New York ten days later 568 00:37:02,040 --> 00:37:03,720 Speaker 10: should also be set aside. 569 00:37:04,200 --> 00:37:06,960 Speaker 2: Bob, what will the judge consider as far as the 570 00:37:07,040 --> 00:37:09,720 Speaker 2: delay in giving the miranda warnings. 571 00:37:09,800 --> 00:37:13,000 Speaker 10: In terms of analyzing whether mister Mangoni should have been 572 00:37:13,000 --> 00:37:16,600 Speaker 10: given his miranda rights sooner? Than twenty minutes after police 573 00:37:16,640 --> 00:37:20,040 Speaker 10: officers first started questioning him. The judge is going to 574 00:37:20,120 --> 00:37:23,120 Speaker 10: look at the critical question of whether or not he 575 00:37:23,320 --> 00:37:26,840 Speaker 10: was in custody and whether he was actually being interrogated 576 00:37:26,880 --> 00:37:30,920 Speaker 10: by law enforcement. That's the standard when an individual is 577 00:37:31,000 --> 00:37:34,759 Speaker 10: considered in custody and being interrogated by law enforcement, that 578 00:37:35,000 --> 00:37:37,960 Speaker 10: is the moment that triggers the requirement that they be 579 00:37:38,040 --> 00:37:41,560 Speaker 10: given the Miranda warnings. So the question here is when 580 00:37:41,600 --> 00:37:45,200 Speaker 10: they were standing in that McDonald's, can the defense convince 581 00:37:45,280 --> 00:37:49,040 Speaker 10: the court that mister Mangioni was in custody and in 582 00:37:49,120 --> 00:37:52,840 Speaker 10: fact was being interrogated by police officers at the time. 583 00:37:53,200 --> 00:37:56,480 Speaker 10: The prosecution has argued that he was not in custody, 584 00:37:56,800 --> 00:38:00,319 Speaker 10: that he was not prevented from leaving the McDonald and 585 00:38:00,400 --> 00:38:03,880 Speaker 10: that he was not formally being interrogated until about twenty 586 00:38:03,920 --> 00:38:06,920 Speaker 10: minutes into the questioning, and that is the point in 587 00:38:06,920 --> 00:38:08,880 Speaker 10: which he was given as miranda rights. 588 00:38:09,080 --> 00:38:13,879 Speaker 2: And Manngioni's defense attorney argued that he was effectively in 589 00:38:13,920 --> 00:38:18,279 Speaker 2: custody because officers had formed a human wall around him 590 00:38:18,360 --> 00:38:23,000 Speaker 2: at the McDonald's. You mentioned before that it's not likely 591 00:38:23,120 --> 00:38:26,200 Speaker 2: that the judge will kick out this evidence. Will you 592 00:38:26,280 --> 00:38:29,360 Speaker 2: explain in a little more detail why you feel that way. 593 00:38:30,200 --> 00:38:33,440 Speaker 10: The issues that were raised during the suppression hearing are 594 00:38:33,680 --> 00:38:37,120 Speaker 10: enormous from the standpoint of the prosecution. What's at stake 595 00:38:37,200 --> 00:38:39,839 Speaker 10: here is the evidence that really goes to the heart 596 00:38:39,840 --> 00:38:43,160 Speaker 10: of the prosecutor's case. Were the judges to decide to 597 00:38:43,280 --> 00:38:47,840 Speaker 10: suppress the search, that would bar prosecutors from using the 598 00:38:48,000 --> 00:38:52,360 Speaker 10: nine millimeter handgun allegedly found in the backpack that matches 599 00:38:52,400 --> 00:38:56,000 Speaker 10: the firearm used in the killing. It would bar prosecutors 600 00:38:56,040 --> 00:39:00,080 Speaker 10: for presenting a trial writings in the notebook that, according 601 00:38:59,960 --> 00:39:04,239 Speaker 10: to prosecutors, laid out Mangioni's disdain for health insurers and 602 00:39:04,400 --> 00:39:08,239 Speaker 10: ideas about killing a CEO at an investor conference. And 603 00:39:08,280 --> 00:39:11,240 Speaker 10: it would also bar them from using evidence that ties 604 00:39:11,600 --> 00:39:15,480 Speaker 10: the false name that he gave to police officers at 605 00:39:15,520 --> 00:39:19,080 Speaker 10: the McDonald's with the name that was used by an 606 00:39:19,080 --> 00:39:22,759 Speaker 10: individual checking into the New York hostel days. 607 00:39:22,440 --> 00:39:23,320 Speaker 11: Before the shooting. 608 00:39:23,760 --> 00:39:28,719 Speaker 10: So the stakes are enormously high, and generally speaking, judges 609 00:39:29,000 --> 00:39:32,680 Speaker 10: will give the benefit of the doubt to police officers 610 00:39:32,760 --> 00:39:37,240 Speaker 10: and to law enforcement if there's a credibility question between 611 00:39:37,280 --> 00:39:40,719 Speaker 10: the defendant and law enforcement. I think what will be 612 00:39:40,719 --> 00:39:45,000 Speaker 10: critical to the analysis here regarding the search is that 613 00:39:45,040 --> 00:39:48,080 Speaker 10: there was a crime committed by giving the false information, 614 00:39:48,440 --> 00:39:51,040 Speaker 10: and the question then is raised as to whether the 615 00:39:51,160 --> 00:39:54,440 Speaker 10: search incident to that arrest was appropriate or not. 616 00:39:55,200 --> 00:39:58,480 Speaker 2: In this day and age, where most people can probably 617 00:39:58,520 --> 00:40:02,279 Speaker 2: recite the Miranda warran from watching them on TV or 618 00:40:02,320 --> 00:40:05,960 Speaker 2: in the movies, why do police hesitate to give them. 619 00:40:06,360 --> 00:40:10,239 Speaker 10: Police officers argued that they were trying to keep him 620 00:40:10,280 --> 00:40:13,080 Speaker 10: calm and trying to determine if, in fact, he was 621 00:40:13,120 --> 00:40:16,440 Speaker 10: the person who law enforcement was looking for while they 622 00:40:16,520 --> 00:40:19,839 Speaker 10: questioned him. It's still a big deal. Even though, as 623 00:40:19,880 --> 00:40:23,040 Speaker 10: you say, people can recite those warnings from watching Law 624 00:40:23,080 --> 00:40:25,719 Speaker 10: and Order and many of the other television shows, that 625 00:40:25,920 --> 00:40:28,839 Speaker 10: is something that still has to be given at the 626 00:40:28,880 --> 00:40:32,920 Speaker 10: appropriate time, and the failure to do that can result 627 00:40:33,040 --> 00:40:36,040 Speaker 10: in statements being suppressed and not being presented at trial. 628 00:40:36,200 --> 00:40:38,680 Speaker 10: So it's a very big deal here, and the judge 629 00:40:38,760 --> 00:40:40,719 Speaker 10: is going to have to look at the question of 630 00:40:40,800 --> 00:40:43,840 Speaker 10: whether or not he was actually in custody. He was 631 00:40:43,960 --> 00:40:48,000 Speaker 10: surrounded by police officers, but the prosecution will argue that 632 00:40:48,080 --> 00:40:50,840 Speaker 10: at no time did he ask whether he could leave, 633 00:40:50,920 --> 00:40:53,560 Speaker 10: did he make an attempt to leave, or did prosecutors 634 00:40:53,600 --> 00:40:56,759 Speaker 10: tell him that he couldn't leave the McDonald's, and therefore 635 00:40:57,080 --> 00:40:59,399 Speaker 10: he was not in custody at the time that they 636 00:40:59,560 --> 00:41:02,840 Speaker 10: asked these questions, and was not being interrogated at the 637 00:41:02,880 --> 00:41:05,440 Speaker 10: time that they asked him these questions, and therefore the 638 00:41:05,560 --> 00:41:09,680 Speaker 10: decision to not mirandize him for twenty minutes was appropriate 639 00:41:09,760 --> 00:41:12,440 Speaker 10: and should not result in a suppression of those statements. 640 00:41:12,600 --> 00:41:15,360 Speaker 2: And we'll have to wait until May eighteenth to find 641 00:41:15,360 --> 00:41:18,839 Speaker 2: out the judge is ruling. Thanks so much, Bob. That's 642 00:41:18,920 --> 00:41:22,160 Speaker 2: Robert mince of maccarter and English, and that's it for 643 00:41:22,160 --> 00:41:24,799 Speaker 2: this edition of The Bloomberg Law Show. Remember you can 644 00:41:24,840 --> 00:41:28,080 Speaker 2: always get the latest legal news on our Bloomberg Law Podcast. 645 00:41:28,360 --> 00:41:31,359 Speaker 2: You can find them on Apple Podcasts, Spotify, and at 646 00:41:31,520 --> 00:41:36,560 Speaker 2: www dot bloomberg dot com, slash podcast Slash Law, and 647 00:41:36,640 --> 00:41:39,719 Speaker 2: remember to tune into The Bloomberg Law Show every weeknight 648 00:41:39,800 --> 00:41:43,239 Speaker 2: at ten pm Wall Street Time. I'm Jim Grosso and 649 00:41:43,280 --> 00:41:44,719 Speaker 2: you're listening to Bloomberg