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Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.

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Speaker 1: There are next door neighbors and you can actually see

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Speaker 1: Russia from land here in Alaska. Former Alaska governor and

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Speaker 1: vice presidential candidate Sarah Palin is known for her gaffs,

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Speaker 1: from saying that Paul Revere warned the British to saying

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Speaker 1: the Constitution is based on the Bible. The list goes

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Speaker 1: on and on. However, it's not Palin but The New

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Speaker 1: York Times that's on trial for false statements in a

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Speaker 1: defamation case. Palin claims the newspaper hurt her reputation with

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Speaker 1: the twenty seventeen opinion piece that tried to tie her

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Speaker 1: political rhetoric to a deadly shooting. It's an uphill battle

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Speaker 1: because of the Supreme Courts landmark nineteen sixty four decision

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Speaker 1: in New York Times v. Sullivan. But Palin maybe looking

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Speaker 1: beyond the New York trial to a Supreme Court where

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Speaker 1: two justices have asked it revisiting the Sullivan decision joining

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Speaker 1: me is got him hands. A professor at Vanderbilt Law

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Speaker 1: School tell us about the New York Times standard that

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Speaker 1: Palin is going to have to meet. So in deformation cases.

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Speaker 1: The Supreme Court has established that for public figures like

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Speaker 1: Sarah Palin, the plaintiff Palin in this case needs to

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Speaker 1: establish that actual malice was present, that that that the

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Speaker 1: publishers choices were so agreed to this. It's such a

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Speaker 1: high level that they meet that actual malice standard. This

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Speaker 1: is because part of our First Amendment tradition in this

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Speaker 1: country is that we want to encourage speech, We want

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Speaker 1: to encourage debate, particularly about public officials, public people, and

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Speaker 1: so any kind of lower standard than actual malice might

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Speaker 1: discourage that kind of public discourse that the First Amendment

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Speaker 1: is aiming to promote. The Time hasn't lost a defamation

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Speaker 1: case in more than half a century. So is that

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Speaker 1: a very high bar for plaintiffs to get over. Yes,

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Speaker 1: it's very difficult for plaintiffs to prevail in defamation cases,

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Speaker 1: particularly when they're public officials like Sarah Palin, because of

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Speaker 1: the Supreme Court's decisions dating back to the Sullivan case

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Speaker 1: from their early sixties. That's why, as you noted, the

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Speaker 1: Times says frequently prevailed as it defendant in such cases.

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Speaker 1: If Palin loses here, where does Supreme Court take this case?

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Speaker 1: Is it likely I think it's hard to say lawyers

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Speaker 1: love to disclaim predictive qualities when it comes to the

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Speaker 1: Supreme Court. I do think that Palin and her legal

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Speaker 1: team realize that it's going to be difficult for them

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Speaker 1: to win under the current law. Sometimes people bring cases

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Speaker 1: thinking that, well, maybe we'll lose at the trial level,

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Speaker 1: maybe we'll even lose at the appellate court level. We're

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Speaker 1: going to aim for the Supreme Court so we can

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Speaker 1: try to get the change to the law from the

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Speaker 1: Supreme Court. And I think in this case that's not

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Speaker 1: a wild bet to make, because at least two Supreme

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Speaker 1: Court justices have some concerns about the precedent from the

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Speaker 1: Sullivan Kates from the sixties, both Justices Thomas and Corsets.

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Speaker 1: Clarence Thomas and the Corsets have made written statements saying

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Speaker 1: that the Sullivan precedent and potentially the actual malice standard

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Speaker 1: need to be revisited or to be revisited by the

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Speaker 1: Supreme Court. So it takes four votes on the Supreme

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Speaker 1: Court to grant sir serrari for review of a case,

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Speaker 1: and we know there are possibly two, so that's halfway there.

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Speaker 1: I think the possibility that there are another two. It's

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Speaker 1: certainly conceivable to me. What are the reasons for thinking

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Speaker 1: it's time to revisit New York Times Sullivan. I think

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Speaker 1: that the Sullivan decision, although I think really necessary to

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Speaker 1: promote a free press in ensuring that we can have

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Speaker 1: a kind of public debate we want in this country,

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Speaker 1: has had critics since it came down in the sixties,

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Speaker 1: and in part because it's made defamation cases harder for

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Speaker 1: plaintiffs to win on If you look at the UK,

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Speaker 1: for example, they have a very different standard and so

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Speaker 1: it's easier in in libel cases in the UK for

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Speaker 1: plaintiffs to prevail. And so I suppose that some people

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Speaker 1: feel that Sullivan doesn't work, or maybe in a digital

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Speaker 1: economy with a different kind of news media landscape, that

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Speaker 1: it's not applicable. So I think that there might be

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Speaker 1: appetite and certainly, as I mentioned, there is from the

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Speaker 1: justiceist of Coursation Thomas to maybe live in Sullivan or

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Speaker 1: make it a bit easier for plaintiffs to win deformation cases.

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Speaker 1: I think there are lots of ways that we could

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Speaker 1: see the court moving were they to take the Paling

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Speaker 1: case or another case like it. You know, I think

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Speaker 1: many Supreme Court observers and many citizens have noticed that

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Speaker 1: the Supreme Court has been revisiting a lot of its

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Speaker 1: long standing precedents in recent years, Rovi Wade being the

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Speaker 1: most obvious, and so this might be another entry on

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Speaker 1: that list of long standing cases that, given the conservative

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Speaker 1: nature and the Supreme Court's current members, could be up

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Speaker 1: for revisiting. Can you explain why there has been this

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Speaker 1: conservative outcry against the Sullivan decision because it protects what

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Speaker 1: people see as liberal media as well as what people

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Speaker 1: see as conservative media. It protects them both. Yeah, I

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Speaker 1: think that's part of the reasons that I'm concerned about

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Speaker 1: the possibility of revisiting Sullivan, because the First Amendment, I

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Speaker 1: like to say, doesn't have a partisan balance. We all

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Speaker 1: benefit from the person number protections. They don't just accrue

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Speaker 1: to liberal sort of servatives. And so what's good for

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Speaker 1: the goose is good for the gander. And you could

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Speaker 1: see a limiting of Solivan not just harm to New

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Speaker 1: York Times, but harm right wing media publications as well.

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Speaker 1: I think that there's a lot of antipathy on the

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Speaker 1: right towards what they consider the media, the mainstream media,

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Speaker 1: and I think that this case is certainly part of

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Speaker 1: that trend. I think to think that it's only going

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Speaker 1: to harm the mainstream media is shortsighted, as the Sullivan

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Speaker 1: decision and the person and that were broadly present all

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Speaker 1: of us, not just on one side for the other,

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Speaker 1: so that I think is lurking under the surface of

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Speaker 1: the appetite for limiting the Solivan decision. I know that

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Speaker 1: there's been some scholarship noting that judges have become much

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Speaker 1: more hostile to the media in decisions over the last

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Speaker 1: few decades, and I think that's the sign of the

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Speaker 1: larger public disapproval or maybe hostility towards what they perceive

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Speaker 1: of as the mainstream media. Was an editorial piece, is

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Speaker 1: that treated differently than a straight news story. That distinction

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Speaker 1: I don't think is really drawn in the cases, uh,

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Speaker 1: in part because I think that's not always a clear line.

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Speaker 1: Certainly for The Times, that they have that distinction between

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Speaker 1: the news and the opinion desks, But I don't think

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Speaker 1: that's material to this case. The Sulivan decision was actually

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Speaker 1: about an advertisement, so it really comes down to what

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Speaker 1: the publisher is promulgating in its media. The Times argues

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Speaker 1: that it was an honest mistake and that it corrected

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Speaker 1: the errors in about twelve hours. Is that a good

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Speaker 1: defense under the Sullivan standard. Yeah. I think that's the

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Speaker 1: strong point in the Times of favor that they acted expeditiously,

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Speaker 1: relatively speaking, to correct it. I think that the plaintift

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Speaker 1: Tarapinlan and her legal team would probably note that twelve

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Speaker 1: hours in a digital eco system is like twelve days

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Speaker 1: in the past, and that's maybe part of why they

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Speaker 1: think that Sullivan doesn't work well in today's media landscape

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Speaker 1: because of the acceleration of the time horizon. But you know,

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Speaker 1: that's not part of the current standard under the law.

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Speaker 1: Perhaps it might be if that's where it goes on appeal.

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Speaker 1: How would you describe what reckless disregard is, because all

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Speaker 1: these pieces go through various levels at newspapers. I think

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Speaker 1: that would have to be just completely shutting your eyes

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Speaker 1: and ignoring the evidence to a really high degree, because

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Speaker 1: it's part of the reason it's a high standard. It

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Speaker 1: really needs to demonstrate the complete lack of any kind

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Speaker 1: of care. And I think the Times would argue that

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Speaker 1: that's not president this case. You know, some of the

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Speaker 1: defamation cases that have been going on as of late

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Speaker 1: that implicate the standard. You know, I think the dominion

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Speaker 1: case based one of them about voting machines there. I

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Speaker 1: think the plaintiffs have argued that there's this complete and

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Speaker 1: constant putting your head in the stand on the part

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Speaker 1: of the media organization in those cases. So it really

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Speaker 1: needs to be pretty flagrant, which is part of the

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Speaker 1: reason that most plaintiffs have a hard time winning. I'm wondering,

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Speaker 1: you know, at night, you have TV hosts saying some

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Speaker 1: pretty outrageous things, and without the time standard, would they

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Speaker 1: be held on a tighter rein yes, I think so.

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Speaker 1: I think that you would see much more caution and

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Speaker 1: maybe even hesitancy from members of the media, from interviewees,

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Speaker 1: and that cuts both ways. I think that some would

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Speaker 1: say that, you know, we need to have more care,

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Speaker 1: that the people should be more guarded or thoughtful about

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Speaker 1: their statements. But more commonly, at least existing cases, the

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Speaker 1: courts have said, no, you know, the First Amendment is

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Speaker 1: really broad for a reason, and we are trying to

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Speaker 1: avoid a kind of self policing or a fear of

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Speaker 1: use and legal action. That the best way to have

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Speaker 1: people try to be cautious about what they say is

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Speaker 1: not for the specter of the lawsuit to be present,

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Speaker 1: but rather for social mores and and other ways of

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Speaker 1: societal cohesion about certain ideas is better. Oftentimes lawyers in

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Speaker 1: sectors will say, you know, there are lots of social

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Speaker 1: problems that we have, but maybe the law is the

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Speaker 1: best way to address those. The law is not always

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Speaker 1: the best tool to try to promote certain goals or

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Speaker 1: discourage certain outcomes. And the broad standard that we have

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Speaker 1: now sort of takes lawsuits largely off the table for

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Speaker 1: defamation and moves us to a setting where society as

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Speaker 1: a whole, or American culture as a whole, can try

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Speaker 1: to decide what's inbounds and what's out of bounds. Of course,

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Speaker 1: I'm in the polarized era like today. That's very hard

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Speaker 1: to achieve, and it maybe even impossible, And perhaps that's

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Speaker 1: why the lack of a social mechanism for developing ideas

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Speaker 1: is perhaps why some people are more optimistic about some

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Speaker 1: kind of legal outcome. Very expensive case, and if it

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Speaker 1: goes to the Supreme Court, even more expensive. Is she

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Speaker 1: paying her lawyers or these lawyers pro bono or do

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Speaker 1: you have any idea about them? I don't know about that.

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Speaker 1: I mean, there's lots of ways to finance lawsuits. It

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Speaker 1: could be a pro bono. I think sometimes you see

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Speaker 1: expensive cases being litigated pro bono because they're high profile,

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Speaker 1: or they might accrue some kind of social standing. There

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Speaker 1: is litigation financing that seems to be a little odd

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Speaker 1: in this kind of situation. But you know, there's all

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Speaker 1: sorts of ways that you can imagine the case finance.

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Speaker 1: But I think that pro bono or reduced hourly rate

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Speaker 1: certainly possible for a high profile case where if they win,

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Speaker 1: not only do they win big potentially on a financial reward,

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Speaker 1: but they may also win reputationally as the legal team

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Speaker 1: that took down or limited Sullivan and took down or

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Speaker 1: or harmed the Times. Is this the highest profile defamation

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Speaker 1: case that we've seen in a while. This is I

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Speaker 1: think the most high profile example of a lot of

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Speaker 1: defamation cases that are being litigated right now are being contemplated,

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Speaker 1: and I think there's one against the Southern Poverty Law

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Speaker 1: Center as well. And so I think those who are

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Speaker 1: opposed to Sullivan smell blood in the water because of

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Speaker 1: the statements of justice is Courstitch and Thomas, and I

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Speaker 1: suspect that we will see if not in this case,

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Speaker 1: some other case that may pique the Supreme Court's interest.

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Speaker 1: As a scholar in this area, do you think that

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Speaker 1: times the Sullivan is the right standard? I think so yes,

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Speaker 1: because I think it is really allowed for the growth

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Speaker 1: of media and a real strong or stronger media landscape

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Speaker 1: than we would have had otherwise. In terms of the

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Speaker 1: differences of opinions. I mentioned the UK. If you look there,

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Speaker 1: there's a lot of reporting that happens in the US

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Speaker 1: that can't be done in the UK, particularly because of

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Speaker 1: their higher prevailing rates for livel cases. And so I

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Speaker 1: think it is on balanced good. I understand some of

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Speaker 1: the concerns, but I think a world without the Sullivan

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Speaker 1: case would really be to all of our detriment. Thanks

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Speaker 1: for being on the show that's got him, Hans of

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Speaker 1: Vanderbilt Law School President. Joe Biden's unprecedented inaugural day firing

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Speaker 1: of the Federal Labor Board's top lawyer during the Trump

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Speaker 1: administration is teed up for judicial review at a Republican

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Speaker 1: dominated US appeals court in New Orleans. Business software firm

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Speaker 1: Excella Enterprise says that Biden did not have the legal

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Speaker 1: authority to remove former National Labor Relations Board General Counsel

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Speaker 1: Peter Robb. The company argues that made the actions of

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Speaker 1: Rob's replacement legally invalid. Those actions included issuing an unfair

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Speaker 1: labor practice complaint against Excella for failing to bargain with

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Speaker 1: a union, leading to an n l RB ruling against

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Speaker 1: the company. Joe Aemy is Anne Lafosso, a law professor

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Speaker 1: at West Virginia University, and tell us about the issue here.

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Speaker 1: So the question here is whether the President was allowed

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Speaker 1: to remove the General Council from the National Labor Relations Board,

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Speaker 1: which the President did. It was one of his very

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Speaker 1: very first acts on January twenty though it might have

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Speaker 1: been the twenty one, and he removed the General Council

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Speaker 1: Peter Rob and eventually he put in acting General Council

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Speaker 1: Peter Or although there was a step in between. There

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Speaker 1: was an interim acting one, and then eventually there is

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Speaker 1: now a full pledged general Counsel in there, Jennifer Bruzzo,

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Speaker 1: who has been with the advice and consent of the Senate,

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Speaker 1: has been approved by the Senate, so she's in there legitimately.

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Speaker 1: At this point, the question here is whether or not

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Speaker 1: that act was constitutional. And if it was unconstitutional, does

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Speaker 1: that mean that this case now is void. Do you

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Speaker 1: know why Biden moved right away to remove him. Yeah,

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Speaker 1: The unions felt that Peter rob was moving in a

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Speaker 1: direction that was at a very accelerated pace that was

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Speaker 1: very anti union. Now, whether that's true or not, but

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Speaker 1: that certainly was the perception of unions, and that he

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Speaker 1: was constantly challenging the way the board had done things

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Speaker 1: for three quarters of a century. And so unions put

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Speaker 1: pressure on Biden to get rid of Rob as soon

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Speaker 1: as possible in order to, in their view, limit the

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Speaker 1: damage that Rob was doing. Because the general counsel can

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Speaker 1: shape exactly what goes before the board, the board can't

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Speaker 1: do anything without a case before it, so it's very

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Speaker 1: important too. The general counsel is in the n l RB,

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Speaker 1: so tell us what the company excels position is here.

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Speaker 1: So the company allegedly engaged in unfairly practice. The board

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Speaker 1: found that unfairly practice. So the company says, oh, that's

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Speaker 1: all well and good. We don't think we did it

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Speaker 1: at all. We don't think we acted unlawfully. But even

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Speaker 1: if we did act unlawfully, um, this whole case is

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Speaker 1: void because the General Council was not allowed to bring

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Speaker 1: this case because the General Council was appointed unconstitutionally. Has

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Speaker 1: the n l RB ruled on Biden's termination of rob Yes,

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Speaker 1: and it says that the Supreme Court's case and Collins v.

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Speaker 1: Yellen um closes the door to that. So, in other words,

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Speaker 1: that it is perfectly fine what Biden did because the

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Speaker 1: case that was before the Supreme Court last term, Collins b. Yellen,

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Speaker 1: makes it very clear that the president has removal authority

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Speaker 1: over agencies, administrative agencies. So Collins v. Ellen is one

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Speaker 1: of two cases. There's Sailor Law and Collins v. Yellen.

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Speaker 1: And this is what's really important here is that in

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Speaker 1: these two cases, the Supreme Court held that the president

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Speaker 1: has authority to remove lesser executive officials. So essentially, Article

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Speaker 1: to vest the full executive power in the presidents, and

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Speaker 1: that generally requires that the president maintain unrestricted removal power

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Speaker 1: over lesser executive officers who exercise significant executive authority, so

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Speaker 1: that the president is ultimately accountable to the people for

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Speaker 1: those actions. So, in other words, this is a very

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Speaker 1: expansive view of executive authority that the president has these

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Speaker 1: inherent powers, the full executive power to remove agency heads.

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Speaker 1: And therefore, even if Congress wrote into a statute that

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Speaker 1: there are restrictions on the president's power removal, those at

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Speaker 1: least so far been ruled unconstitution at all. I mean,

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Speaker 1: doesn't that answer this case. That's what the board said.

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Speaker 1: Now in their briefs, the company has their attorneys have

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Speaker 1: argued that, first of all, Um, section three of the

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Speaker 1: Act says that the president has the authority to remove

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Speaker 1: board members. Well, first of all, that might be, like

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Speaker 1: you suggested, that might be unconstitutional. But second, given these

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Speaker 1: cases before the Supreme Court. But now, Um, on top

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Speaker 1: of this, there's no text. There's actually no restriction on

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Speaker 1: the president's removal power in the National Abe Relations Act

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Speaker 1: with regard to the General Council. So it should answer

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Speaker 1: the question. Now, that's why I think they're probably teeing

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Speaker 1: up to re challenge this in the Supreme Court. So

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Speaker 1: it would be hard for the Fifth Circuit to go

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Speaker 1: against these two presidents because their mandatory authority for the

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Speaker 1: Fifth Circuit, And that's even though it's considered the most

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Speaker 1: conservative circuit in the country. Yeah, it's conservative, but it's

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Speaker 1: not going to be It can't be results oriented right.

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Speaker 1: So in other words, that's why a lot of people

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Speaker 1: think that conservative means it's gonna come up with a

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Speaker 1: conservative result. But I always tell my students what's good

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Speaker 1: for the goose is good for the gander. So if

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Speaker 1: you have a strong executive um authority, the president now

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Speaker 1: is very strong executive power. And by the way, that's

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Speaker 1: what Trump put into the Supreme Court, like Kavanaugh is

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Speaker 1: known for having very very strong beliefs about a strong

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Speaker 1: executive So we have Supreme Court right now that seems

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Speaker 1: to at least starting to favor very strong executive powers. Well, now,

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Speaker 1: that means when the president is a Democrat, the president

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Speaker 1: has strong executive powers. It doesn't matter whether the president

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Speaker 1: is pro business, pro labor, or whatever the presidents is.

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Speaker 1: That's strong executive powers. And the Fifth Circuit has no

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Speaker 1: choice but to go with the Supreme Court's precedents. So

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Speaker 1: the only thing the Fifth Circuit can do is if

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Speaker 1: it thinks that these cases are not not on point.

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Speaker 1: But it's really hard to imagine why they wouldn't be

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Speaker 1: on points because one of them, at least one of

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Speaker 1: them deals with an independent agency like the National Labor

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Speaker 1: Relations Board, And in fact, these cases are weaker than

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Speaker 1: the case right now in the n LRB, because in

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Speaker 1: the l RB case, there's literally no text that puts

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Speaker 1: a limit on the president's removal power. So what they

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Speaker 1: could try to argue is, well, the president doesn't have

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Speaker 1: removal power because not in the text. Except these cases

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Speaker 1: stand for a sort of inherent power that the president

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Speaker 1: has to remove under the Constitution. So they're saying that

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Speaker 1: the n l r AS removal sections for n l

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Speaker 1: r B members also applied to the General Council. Does

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Speaker 1: that make sense to you? Under Section three of the Act,

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Speaker 1: the President cannot remove board members except for cause. It's

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Speaker 1: limited cause to They define it as this one says

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Speaker 1: any member of the Board may be removed by the

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Speaker 1: President upon notice and hearing for neglect of duty or

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Speaker 1: mouthfeasance in office, but for no other cause. And then

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Speaker 1: it says nothing about the General Council. So what I'm

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Speaker 1: saying is one Section three may be unconstitutional, in which

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Speaker 1: case the president could even remove board members based on

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Speaker 1: this precedent. But to forget about that, let's say that's constitutional,

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Speaker 1: which I think is in grave. That's an highly dubious Now,

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Speaker 1: after these precedents, Okay, there's nothing in the text that

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Speaker 1: limits president's removal authority of the General Council. There's no

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Speaker 1: text like that at all. Doesn't it's silent completely. They

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Speaker 1: alleged that it makes the role more political to have

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Speaker 1: the president be able to fire the General Counsel without cause.

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Speaker 1: Do we accept already that this role is political? Oh? Yeah, absolutely,

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Speaker 1: And it does make it even more political. It makes

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Speaker 1: it more accountable political, meaning accountable to the people. That's

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Speaker 1: what politics is, right. I mean, we can agree or

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Speaker 1: disagree whether we want this to be. I mean we're

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Speaker 1: stepping into a world now where it looks like if

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Speaker 1: there's a change in party, or even if it's not,

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Speaker 1: the president can remove the heads of agencies. That is

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Speaker 1: definitely what these cases are saying. And now presidents don't

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Speaker 1: want to do that completely because there's a couple of reasons.

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Speaker 1: One is it creates incredible instability in the agencies, or

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Speaker 1: at least some instability, right. You don't want to keep

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Speaker 1: on removing heads of agencies, so you want to do

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Speaker 1: it at times when you think there's a reason, right,

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Speaker 1: but that reason now and I think this is probably

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Speaker 1: with the company suggesting can be political after the political

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Speaker 1: election and some people think that's good because they'll say that, well,

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Speaker 1: if we go from Republicans Democrat, or from Democrat to Republican.

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Speaker 1: What we're basically saying is the people want a different

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Speaker 1: course of action, and they don't want to wait two

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Speaker 1: years into the president's term to see things happening. So,

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Speaker 1: for example, unions greatly supported Biden, and so they want

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Speaker 1: to see action right away. It would have been delayed.

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Speaker 1: Um has Biden not taken this action right away? And

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Speaker 1: by the way, if the Republicans win the next time,

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Speaker 1: the Republicans can remove Jennifer Brutso right away. So that's

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Speaker 1: called accountability to the people. But the problem with that

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Speaker 1: view is that our people really are the people really

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Speaker 1: voting for a president because of what the president views

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Speaker 1: on the National lab Relations Board are Some people might be,

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Speaker 1: but others might be because they like the president's views

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Speaker 1: on abortion and they want to have certain um judicial picks.

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Speaker 1: So this is this is a very interesting debate, and

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Speaker 1: this is definitely we are definitely changing from a a

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Speaker 1: different model of administrative law here, and that's why I

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Speaker 1: think this could easily go to the Supreme Court. The

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Speaker 1: President just announced that he's removed UM I think the

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Speaker 1: head of the Social Security Administration so recently, so this

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Speaker 1: is definitely going to I think this will go to

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Speaker 1: the Supreme Court again. Why do you think that if

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Speaker 1: the Court has already ruled on this in two other cases,

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Speaker 1: why why take this one as well? Maybe not this one,

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Speaker 1: but others just to because this is why the first

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Speaker 1: one was a five four decision, and there's two strong

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Speaker 1: descents in the second one by Gorcage and Thomas and

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Speaker 1: Gorcige and Thomas are not fans of this at all.

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Speaker 1: So there is what they need to do is they

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Speaker 1: need to get They need to convince someone because potentially

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Speaker 1: you can look at the first one, Sailor Law, and say, oh,

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Speaker 1: what was different about that one that got it closer?

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Speaker 1: So they would have to think of some arguments. Why

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Speaker 1: would this be different? Is this the right case to

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Speaker 1: take up to lessen presidential authority? Do you know where

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Speaker 1: Justice Barrett stands on this? I think she would right

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Speaker 1: now tend to be with presidential authority. But that's not

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Speaker 1: going to necessarily we have to see, there's not enough

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Speaker 1: data to really predict. I think we know that Thomas

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Speaker 1: and gorst really don't like this at all, all Right,

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Speaker 1: Alito loves this. So this is what I'm saying. This

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Speaker 1: is presidential power tends to be a conservative thing. Republicans

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Speaker 1: tend to want more and more power in the president. Well,

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Speaker 1: the Democrats are just taking advantage of that right now.

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Speaker 1: They like, Okay, that's what you wanted. What's good for

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Speaker 1: the goose is good for the gander. But then that's

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Speaker 1: the way it works. Why are the conservatives split? Then?

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Speaker 1: Why do Gorsage and Thomas oppose the presidential power and

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Speaker 1: in Alito you think is for it? Well that's what

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Speaker 1: they said. But why do I think they're like that?

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Speaker 1: Why is the conservative block split on this? Okay? Because

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Speaker 1: this is my guess about Gorsage. My guests on Gorsage

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Speaker 1: is because he doesn't like the administrative state at all.

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Speaker 1: So there's other things. What what I think the late

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Speaker 1: what lay people or people are not experts in constitutional

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Speaker 1: law or in the in the court don't understand because

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Speaker 1: and they shouldn't they shouldn't have to think about these things.

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Speaker 1: Is they think that everything is about um, what your pity,

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Speaker 1: what your political views are. But these justices have very

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Speaker 1: strong views and ideologies and theories about how the Constitution

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Speaker 1: should run. So whether you you'll see that sometimes Thomas

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Speaker 1: Will will actually go with the Liberals on something because

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Speaker 1: of a different principle that he really wants that's more

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Speaker 1: important than the results. Really, the only the most results

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Speaker 1: oriented person right now on the Court is a leado.

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Speaker 1: The leado almost always you can predict which way he's

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Speaker 1: going to go. It's probably going to be whatever politically

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Speaker 1: is conservative. And I'm not suggesting that that means he's

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Speaker 1: not authentic or anything, but it just seemed. But he's

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Speaker 1: the one. The others it's hard to predict. Remember Gorcich

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Speaker 1: and he wrote Bostock, which was on same sex marriage.

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Speaker 1: People were shocked. I was not shocked about that because

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Speaker 1: Gorstch cares about textualism, and that was what he was pushing,

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Speaker 1: was the textualism because he wants that argument then for

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Speaker 1: the next case, and he wants to be consistent. So

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Speaker 1: they're pushing agendas that we don't necessarily see. But if

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Speaker 1: this went to the Supreme Court, now, what's your best

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00:27:50,480 --> 00:27:53,960
Speaker 1: guess about how it would turn out Biden would be upheld?

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Speaker 1: Let's just say that Biden wasn't upheld. Has a BRUTESO

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Speaker 1: done enough within the agency so that whatever or did

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Speaker 1: has been ratified. I think so. I mean she's been

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Speaker 1: doing a lot. I mean they have been the the

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Speaker 1: NLRB has been screwed by its actions so much in

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Speaker 1: the last twenty years by doing things and then it

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00:28:17,760 --> 00:28:20,879
Speaker 1: has to be re ratified, you know, no canning in

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Speaker 1: other cases that went to the Supreme Court that I

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Speaker 1: think it's learned its lessons, so they were ready for this.

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Speaker 1: She hit the ground running, and she already had she

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Speaker 1: was ratifying things. So I don't think we're going to

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Speaker 1: have a replay of what happened in the early century,

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Speaker 1: you know, like a decade ago. I don't think we're

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Speaker 1: gonna have a replay of that. But it's going to

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Speaker 1: be depend on what the court says. But my best

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Speaker 1: analysis as a person who teaches both labor law and

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Speaker 1: constitutional law is that we will not have a replay

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Speaker 1: of that and that very little will be affected going forward. Also,

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Speaker 1: there are a much stronger ground than they were a

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Speaker 1: decade ago. We really I've seen a change in the

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Speaker 1: perception of executive power that's much less nuanced and much

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Speaker 1: more about the president has a lot of power. Thanks

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Speaker 1: so much. Anne. That's Anne Lofasso, a professor at West

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Speaker 1: Virginia University. And that's it for the edition of the

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Speaker 1: Bloomberg Law Show. Remember you can always get the latest

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Speaker 1: legal news by listening to our Bloomberg Law Podcast wherever

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Speaker 1: you get your favorite podcasts. I'm June Grosso and you're

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00:29:26,520 --> 00:29:27,840
Speaker 1: listening to Bloomberg