Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.
Speaker 1: There are next door neighbors and you can actually see
Speaker 1: Russia from land here in Alaska. Former Alaska governor and
Speaker 1: vice presidential candidate Sarah Palin is known for her gaffs,
Speaker 1: from saying that Paul Revere warned the British to saying
Speaker 1: the Constitution is based on the Bible. The list goes
Speaker 1: on and on. However, it's not Palin but The New
Speaker 1: York Times that's on trial for false statements in a
Speaker 1: defamation case. Palin claims the newspaper hurt her reputation with
Speaker 1: the twenty seventeen opinion piece that tried to tie her
Speaker 1: political rhetoric to a deadly shooting. It's an uphill battle
Speaker 1: because of the Supreme Courts landmark nineteen sixty four decision
Speaker 1: in New York Times v. Sullivan. But Palin maybe looking
Speaker 1: beyond the New York trial to a Supreme Court where
Speaker 1: two justices have asked it revisiting the Sullivan decision joining
Speaker 1: me is got him hands. A professor at Vanderbilt Law
Speaker 1: School tell us about the New York Times standard that
Speaker 1: Palin is going to have to meet. So in deformation cases.
Speaker 1: The Supreme Court has established that for public figures like
Speaker 1: Sarah Palin, the plaintiff Palin in this case needs to
Speaker 1: establish that actual malice was present, that that that the
Speaker 1: publishers choices were so agreed to this. It's such a
Speaker 1: high level that they meet that actual malice standard. This
Speaker 1: is because part of our First Amendment tradition in this
Speaker 1: country is that we want to encourage speech, We want
Speaker 1: to encourage debate, particularly about public officials, public people, and
Speaker 1: so any kind of lower standard than actual malice might
Speaker 1: discourage that kind of public discourse that the First Amendment
Speaker 1: is aiming to promote. The Time hasn't lost a defamation
Speaker 1: case in more than half a century. So is that
Speaker 1: a very high bar for plaintiffs to get over. Yes,
Speaker 1: it's very difficult for plaintiffs to prevail in defamation cases,
Speaker 1: particularly when they're public officials like Sarah Palin, because of
Speaker 1: the Supreme Court's decisions dating back to the Sullivan case
Speaker 1: from their early sixties. That's why, as you noted, the
Speaker 1: Times says frequently prevailed as it defendant in such cases.
Speaker 1: If Palin loses here, where does Supreme Court take this case?
Speaker 1: Is it likely I think it's hard to say lawyers
Speaker 1: love to disclaim predictive qualities when it comes to the
Speaker 1: Supreme Court. I do think that Palin and her legal
Speaker 1: team realize that it's going to be difficult for them
Speaker 1: to win under the current law. Sometimes people bring cases
Speaker 1: thinking that, well, maybe we'll lose at the trial level,
Speaker 1: maybe we'll even lose at the appellate court level. We're
Speaker 1: going to aim for the Supreme Court so we can
Speaker 1: try to get the change to the law from the
Speaker 1: Supreme Court. And I think in this case that's not
Speaker 1: a wild bet to make, because at least two Supreme
Speaker 1: Court justices have some concerns about the precedent from the
Speaker 1: Sullivan Kates from the sixties, both Justices Thomas and Corsets.
Speaker 1: Clarence Thomas and the Corsets have made written statements saying
Speaker 1: that the Sullivan precedent and potentially the actual malice standard
Speaker 1: need to be revisited or to be revisited by the
Speaker 1: Supreme Court. So it takes four votes on the Supreme
Speaker 1: Court to grant sir serrari for review of a case,
Speaker 1: and we know there are possibly two, so that's halfway there.
Speaker 1: I think the possibility that there are another two. It's
Speaker 1: certainly conceivable to me. What are the reasons for thinking
Speaker 1: it's time to revisit New York Times Sullivan. I think
Speaker 1: that the Sullivan decision, although I think really necessary to
Speaker 1: promote a free press in ensuring that we can have
Speaker 1: a kind of public debate we want in this country,
Speaker 1: has had critics since it came down in the sixties,
Speaker 1: and in part because it's made defamation cases harder for
Speaker 1: plaintiffs to win on If you look at the UK,
Speaker 1: for example, they have a very different standard and so
Speaker 1: it's easier in in libel cases in the UK for
Speaker 1: plaintiffs to prevail. And so I suppose that some people
Speaker 1: feel that Sullivan doesn't work, or maybe in a digital
Speaker 1: economy with a different kind of news media landscape, that
Speaker 1: it's not applicable. So I think that there might be
Speaker 1: appetite and certainly, as I mentioned, there is from the
Speaker 1: justiceist of Coursation Thomas to maybe live in Sullivan or
Speaker 1: make it a bit easier for plaintiffs to win deformation cases.
Speaker 1: I think there are lots of ways that we could
Speaker 1: see the court moving were they to take the Paling
Speaker 1: case or another case like it. You know, I think
Speaker 1: many Supreme Court observers and many citizens have noticed that
Speaker 1: the Supreme Court has been revisiting a lot of its
Speaker 1: long standing precedents in recent years, Rovi Wade being the
Speaker 1: most obvious, and so this might be another entry on
Speaker 1: that list of long standing cases that, given the conservative
Speaker 1: nature and the Supreme Court's current members, could be up
Speaker 1: for revisiting. Can you explain why there has been this
Speaker 1: conservative outcry against the Sullivan decision because it protects what
Speaker 1: people see as liberal media as well as what people
Speaker 1: see as conservative media. It protects them both. Yeah, I
Speaker 1: think that's part of the reasons that I'm concerned about
Speaker 1: the possibility of revisiting Sullivan, because the First Amendment, I
Speaker 1: like to say, doesn't have a partisan balance. We all
Speaker 1: benefit from the person number protections. They don't just accrue
Speaker 1: to liberal sort of servatives. And so what's good for
Speaker 1: the goose is good for the gander. And you could
Speaker 1: see a limiting of Solivan not just harm to New
Speaker 1: York Times, but harm right wing media publications as well.
Speaker 1: I think that there's a lot of antipathy on the
Speaker 1: right towards what they consider the media, the mainstream media,
Speaker 1: and I think that this case is certainly part of
Speaker 1: that trend. I think to think that it's only going
Speaker 1: to harm the mainstream media is shortsighted, as the Sullivan
Speaker 1: decision and the person and that were broadly present all
Speaker 1: of us, not just on one side for the other,
Speaker 1: so that I think is lurking under the surface of
Speaker 1: the appetite for limiting the Solivan decision. I know that
Speaker 1: there's been some scholarship noting that judges have become much
Speaker 1: more hostile to the media in decisions over the last
Speaker 1: few decades, and I think that's the sign of the
Speaker 1: larger public disapproval or maybe hostility towards what they perceive
Speaker 1: of as the mainstream media. Was an editorial piece, is
Speaker 1: that treated differently than a straight news story. That distinction
Speaker 1: I don't think is really drawn in the cases, uh,
Speaker 1: in part because I think that's not always a clear line.
Speaker 1: Certainly for The Times, that they have that distinction between
Speaker 1: the news and the opinion desks, But I don't think
Speaker 1: that's material to this case. The Sulivan decision was actually
Speaker 1: about an advertisement, so it really comes down to what
Speaker 1: the publisher is promulgating in its media. The Times argues
Speaker 1: that it was an honest mistake and that it corrected
Speaker 1: the errors in about twelve hours. Is that a good
Speaker 1: defense under the Sullivan standard. Yeah. I think that's the
Speaker 1: strong point in the Times of favor that they acted expeditiously,
Speaker 1: relatively speaking, to correct it. I think that the plaintift
Speaker 1: Tarapinlan and her legal team would probably note that twelve
Speaker 1: hours in a digital eco system is like twelve days
Speaker 1: in the past, and that's maybe part of why they
Speaker 1: think that Sullivan doesn't work well in today's media landscape
Speaker 1: because of the acceleration of the time horizon. But you know,
Speaker 1: that's not part of the current standard under the law.
Speaker 1: Perhaps it might be if that's where it goes on appeal.
Speaker 1: How would you describe what reckless disregard is, because all
Speaker 1: these pieces go through various levels at newspapers. I think
Speaker 1: that would have to be just completely shutting your eyes
Speaker 1: and ignoring the evidence to a really high degree, because
Speaker 1: it's part of the reason it's a high standard. It
Speaker 1: really needs to demonstrate the complete lack of any kind
Speaker 1: of care. And I think the Times would argue that
Speaker 1: that's not president this case. You know, some of the
Speaker 1: defamation cases that have been going on as of late
Speaker 1: that implicate the standard. You know, I think the dominion
Speaker 1: case based one of them about voting machines there. I
Speaker 1: think the plaintiffs have argued that there's this complete and
Speaker 1: constant putting your head in the stand on the part
Speaker 1: of the media organization in those cases. So it really
Speaker 1: needs to be pretty flagrant, which is part of the
Speaker 1: reason that most plaintiffs have a hard time winning. I'm wondering,
Speaker 1: you know, at night, you have TV hosts saying some
Speaker 1: pretty outrageous things, and without the time standard, would they
Speaker 1: be held on a tighter rein yes, I think so.
Speaker 1: I think that you would see much more caution and
Speaker 1: maybe even hesitancy from members of the media, from interviewees,
Speaker 1: and that cuts both ways. I think that some would
Speaker 1: say that, you know, we need to have more care,
Speaker 1: that the people should be more guarded or thoughtful about
Speaker 1: their statements. But more commonly, at least existing cases, the
Speaker 1: courts have said, no, you know, the First Amendment is
Speaker 1: really broad for a reason, and we are trying to
Speaker 1: avoid a kind of self policing or a fear of
Speaker 1: use and legal action. That the best way to have
Speaker 1: people try to be cautious about what they say is
Speaker 1: not for the specter of the lawsuit to be present,
Speaker 1: but rather for social mores and and other ways of
Speaker 1: societal cohesion about certain ideas is better. Oftentimes lawyers in
Speaker 1: sectors will say, you know, there are lots of social
Speaker 1: problems that we have, but maybe the law is the
Speaker 1: best way to address those. The law is not always
Speaker 1: the best tool to try to promote certain goals or
Speaker 1: discourage certain outcomes. And the broad standard that we have
Speaker 1: now sort of takes lawsuits largely off the table for
Speaker 1: defamation and moves us to a setting where society as
Speaker 1: a whole, or American culture as a whole, can try
Speaker 1: to decide what's inbounds and what's out of bounds. Of course,
Speaker 1: I'm in the polarized era like today. That's very hard
Speaker 1: to achieve, and it maybe even impossible, And perhaps that's
Speaker 1: why the lack of a social mechanism for developing ideas
Speaker 1: is perhaps why some people are more optimistic about some
Speaker 1: kind of legal outcome. Very expensive case, and if it
Speaker 1: goes to the Supreme Court, even more expensive. Is she
Speaker 1: paying her lawyers or these lawyers pro bono or do
Speaker 1: you have any idea about them? I don't know about that.
Speaker 1: I mean, there's lots of ways to finance lawsuits. It
Speaker 1: could be a pro bono. I think sometimes you see
Speaker 1: expensive cases being litigated pro bono because they're high profile,
Speaker 1: or they might accrue some kind of social standing. There
Speaker 1: is litigation financing that seems to be a little odd
Speaker 1: in this kind of situation. But you know, there's all
Speaker 1: sorts of ways that you can imagine the case finance.
Speaker 1: But I think that pro bono or reduced hourly rate
Speaker 1: certainly possible for a high profile case where if they win,
Speaker 1: not only do they win big potentially on a financial reward,
Speaker 1: but they may also win reputationally as the legal team
Speaker 1: that took down or limited Sullivan and took down or
Speaker 1: or harmed the Times. Is this the highest profile defamation
Speaker 1: case that we've seen in a while. This is I
Speaker 1: think the most high profile example of a lot of
Speaker 1: defamation cases that are being litigated right now are being contemplated,
Speaker 1: and I think there's one against the Southern Poverty Law
Speaker 1: Center as well. And so I think those who are
Speaker 1: opposed to Sullivan smell blood in the water because of
Speaker 1: the statements of justice is Courstitch and Thomas, and I
Speaker 1: suspect that we will see if not in this case,
Speaker 1: some other case that may pique the Supreme Court's interest.
Speaker 1: As a scholar in this area, do you think that
Speaker 1: times the Sullivan is the right standard? I think so yes,
Speaker 1: because I think it is really allowed for the growth
Speaker 1: of media and a real strong or stronger media landscape
Speaker 1: than we would have had otherwise. In terms of the
Speaker 1: differences of opinions. I mentioned the UK. If you look there,
Speaker 1: there's a lot of reporting that happens in the US
Speaker 1: that can't be done in the UK, particularly because of
Speaker 1: their higher prevailing rates for livel cases. And so I
Speaker 1: think it is on balanced good. I understand some of
Speaker 1: the concerns, but I think a world without the Sullivan
Speaker 1: case would really be to all of our detriment. Thanks
Speaker 1: for being on the show that's got him, Hans of
Speaker 1: Vanderbilt Law School President. Joe Biden's unprecedented inaugural day firing
Speaker 1: of the Federal Labor Board's top lawyer during the Trump
Speaker 1: administration is teed up for judicial review at a Republican
Speaker 1: dominated US appeals court in New Orleans. Business software firm
Speaker 1: Excella Enterprise says that Biden did not have the legal
Speaker 1: authority to remove former National Labor Relations Board General Counsel
Speaker 1: Peter Robb. The company argues that made the actions of
Speaker 1: Rob's replacement legally invalid. Those actions included issuing an unfair
Speaker 1: labor practice complaint against Excella for failing to bargain with
Speaker 1: a union, leading to an n l RB ruling against
Speaker 1: the company. Joe Aemy is Anne Lafosso, a law professor
Speaker 1: at West Virginia University, and tell us about the issue here.
Speaker 1: So the question here is whether the President was allowed
Speaker 1: to remove the General Council from the National Labor Relations Board,
Speaker 1: which the President did. It was one of his very
Speaker 1: very first acts on January twenty though it might have
Speaker 1: been the twenty one, and he removed the General Council
Speaker 1: Peter Rob and eventually he put in acting General Council
Speaker 1: Peter Or although there was a step in between. There
Speaker 1: was an interim acting one, and then eventually there is
Speaker 1: now a full pledged general Counsel in there, Jennifer Bruzzo,
Speaker 1: who has been with the advice and consent of the Senate,
Speaker 1: has been approved by the Senate, so she's in there legitimately.
Speaker 1: At this point, the question here is whether or not
Speaker 1: that act was constitutional. And if it was unconstitutional, does
Speaker 1: that mean that this case now is void. Do you
Speaker 1: know why Biden moved right away to remove him. Yeah,
Speaker 1: The unions felt that Peter rob was moving in a
Speaker 1: direction that was at a very accelerated pace that was
Speaker 1: very anti union. Now, whether that's true or not, but
Speaker 1: that certainly was the perception of unions, and that he
Speaker 1: was constantly challenging the way the board had done things
Speaker 1: for three quarters of a century. And so unions put
Speaker 1: pressure on Biden to get rid of Rob as soon
Speaker 1: as possible in order to, in their view, limit the
Speaker 1: damage that Rob was doing. Because the general counsel can
Speaker 1: shape exactly what goes before the board, the board can't
Speaker 1: do anything without a case before it, so it's very
Speaker 1: important too. The general counsel is in the n l RB,
Speaker 1: so tell us what the company excels position is here.
Speaker 1: So the company allegedly engaged in unfairly practice. The board
Speaker 1: found that unfairly practice. So the company says, oh, that's
Speaker 1: all well and good. We don't think we did it
Speaker 1: at all. We don't think we acted unlawfully. But even
Speaker 1: if we did act unlawfully, um, this whole case is
Speaker 1: void because the General Council was not allowed to bring
Speaker 1: this case because the General Council was appointed unconstitutionally. Has
Speaker 1: the n l RB ruled on Biden's termination of rob Yes,
Speaker 1: and it says that the Supreme Court's case and Collins v.
Speaker 1: Yellen um closes the door to that. So, in other words,
Speaker 1: that it is perfectly fine what Biden did because the
Speaker 1: case that was before the Supreme Court last term, Collins b. Yellen,
Speaker 1: makes it very clear that the president has removal authority
Speaker 1: over agencies, administrative agencies. So Collins v. Ellen is one
Speaker 1: of two cases. There's Sailor Law and Collins v. Yellen.
Speaker 1: And this is what's really important here is that in
Speaker 1: these two cases, the Supreme Court held that the president
Speaker 1: has authority to remove lesser executive officials. So essentially, Article
Speaker 1: to vest the full executive power in the presidents, and
Speaker 1: that generally requires that the president maintain unrestricted removal power
Speaker 1: over lesser executive officers who exercise significant executive authority, so
Speaker 1: that the president is ultimately accountable to the people for
Speaker 1: those actions. So, in other words, this is a very
Speaker 1: expansive view of executive authority that the president has these
Speaker 1: inherent powers, the full executive power to remove agency heads.
Speaker 1: And therefore, even if Congress wrote into a statute that
Speaker 1: there are restrictions on the president's power removal, those at
Speaker 1: least so far been ruled unconstitution at all. I mean,
Speaker 1: doesn't that answer this case. That's what the board said.
Speaker 1: Now in their briefs, the company has their attorneys have
Speaker 1: argued that, first of all, Um, section three of the
Speaker 1: Act says that the president has the authority to remove
Speaker 1: board members. Well, first of all, that might be, like
Speaker 1: you suggested, that might be unconstitutional. But second, given these
Speaker 1: cases before the Supreme Court. But now, Um, on top
Speaker 1: of this, there's no text. There's actually no restriction on
Speaker 1: the president's removal power in the National Abe Relations Act
Speaker 1: with regard to the General Council. So it should answer
Speaker 1: the question. Now, that's why I think they're probably teeing
Speaker 1: up to re challenge this in the Supreme Court. So
Speaker 1: it would be hard for the Fifth Circuit to go
Speaker 1: against these two presidents because their mandatory authority for the
Speaker 1: Fifth Circuit, And that's even though it's considered the most
Speaker 1: conservative circuit in the country. Yeah, it's conservative, but it's
Speaker 1: not going to be It can't be results oriented right.
Speaker 1: So in other words, that's why a lot of people
Speaker 1: think that conservative means it's gonna come up with a
Speaker 1: conservative result. But I always tell my students what's good
Speaker 1: for the goose is good for the gander. So if
Speaker 1: you have a strong executive um authority, the president now
Speaker 1: is very strong executive power. And by the way, that's
Speaker 1: what Trump put into the Supreme Court, like Kavanaugh is
Speaker 1: known for having very very strong beliefs about a strong
Speaker 1: executive So we have Supreme Court right now that seems
Speaker 1: to at least starting to favor very strong executive powers. Well, now,
Speaker 1: that means when the president is a Democrat, the president
Speaker 1: has strong executive powers. It doesn't matter whether the president
Speaker 1: is pro business, pro labor, or whatever the presidents is.
Speaker 1: That's strong executive powers. And the Fifth Circuit has no
Speaker 1: choice but to go with the Supreme Court's precedents. So
Speaker 1: the only thing the Fifth Circuit can do is if
Speaker 1: it thinks that these cases are not not on point.
Speaker 1: But it's really hard to imagine why they wouldn't be
Speaker 1: on points because one of them, at least one of
Speaker 1: them deals with an independent agency like the National Labor
Speaker 1: Relations Board, And in fact, these cases are weaker than
Speaker 1: the case right now in the n LRB, because in
Speaker 1: the l RB case, there's literally no text that puts
Speaker 1: a limit on the president's removal power. So what they
Speaker 1: could try to argue is, well, the president doesn't have
Speaker 1: removal power because not in the text. Except these cases
Speaker 1: stand for a sort of inherent power that the president
Speaker 1: has to remove under the Constitution. So they're saying that
Speaker 1: the n l r AS removal sections for n l
Speaker 1: r B members also applied to the General Council. Does
Speaker 1: that make sense to you? Under Section three of the Act,
Speaker 1: the President cannot remove board members except for cause. It's
Speaker 1: limited cause to They define it as this one says
Speaker 1: any member of the Board may be removed by the
Speaker 1: President upon notice and hearing for neglect of duty or
Speaker 1: mouthfeasance in office, but for no other cause. And then
Speaker 1: it says nothing about the General Council. So what I'm
Speaker 1: saying is one Section three may be unconstitutional, in which
Speaker 1: case the president could even remove board members based on
Speaker 1: this precedent. But to forget about that, let's say that's constitutional,
Speaker 1: which I think is in grave. That's an highly dubious Now,
Speaker 1: after these precedents, Okay, there's nothing in the text that
Speaker 1: limits president's removal authority of the General Council. There's no
Speaker 1: text like that at all. Doesn't it's silent completely. They
Speaker 1: alleged that it makes the role more political to have
Speaker 1: the president be able to fire the General Counsel without cause.
Speaker 1: Do we accept already that this role is political? Oh? Yeah, absolutely,
Speaker 1: And it does make it even more political. It makes
Speaker 1: it more accountable political, meaning accountable to the people. That's
Speaker 1: what politics is, right. I mean, we can agree or
Speaker 1: disagree whether we want this to be. I mean we're
Speaker 1: stepping into a world now where it looks like if
Speaker 1: there's a change in party, or even if it's not,
Speaker 1: the president can remove the heads of agencies. That is
Speaker 1: definitely what these cases are saying. And now presidents don't
Speaker 1: want to do that completely because there's a couple of reasons.
Speaker 1: One is it creates incredible instability in the agencies, or
Speaker 1: at least some instability, right. You don't want to keep
Speaker 1: on removing heads of agencies, so you want to do
Speaker 1: it at times when you think there's a reason, right,
Speaker 1: but that reason now and I think this is probably
Speaker 1: with the company suggesting can be political after the political
Speaker 1: election and some people think that's good because they'll say that, well,
Speaker 1: if we go from Republicans Democrat, or from Democrat to Republican.
Speaker 1: What we're basically saying is the people want a different
Speaker 1: course of action, and they don't want to wait two
Speaker 1: years into the president's term to see things happening. So,
Speaker 1: for example, unions greatly supported Biden, and so they want
Speaker 1: to see action right away. It would have been delayed.
Speaker 1: Um has Biden not taken this action right away? And
Speaker 1: by the way, if the Republicans win the next time,
Speaker 1: the Republicans can remove Jennifer Brutso right away. So that's
Speaker 1: called accountability to the people. But the problem with that
Speaker 1: view is that our people really are the people really
Speaker 1: voting for a president because of what the president views
Speaker 1: on the National lab Relations Board are Some people might be,
Speaker 1: but others might be because they like the president's views
Speaker 1: on abortion and they want to have certain um judicial picks.
Speaker 1: So this is this is a very interesting debate, and
Speaker 1: this is definitely we are definitely changing from a a
Speaker 1: different model of administrative law here, and that's why I
Speaker 1: think this could easily go to the Supreme Court. The
Speaker 1: President just announced that he's removed UM I think the
Speaker 1: head of the Social Security Administration so recently, so this
Speaker 1: is definitely going to I think this will go to
Speaker 1: the Supreme Court again. Why do you think that if
Speaker 1: the Court has already ruled on this in two other cases,
Speaker 1: why why take this one as well? Maybe not this one,
Speaker 1: but others just to because this is why the first
Speaker 1: one was a five four decision, and there's two strong
Speaker 1: descents in the second one by Gorcage and Thomas and
Speaker 1: Gorcige and Thomas are not fans of this at all.
Speaker 1: So there is what they need to do is they
Speaker 1: need to get They need to convince someone because potentially
Speaker 1: you can look at the first one, Sailor Law, and say, oh,
Speaker 1: what was different about that one that got it closer?
Speaker 1: So they would have to think of some arguments. Why
Speaker 1: would this be different? Is this the right case to
Speaker 1: take up to lessen presidential authority? Do you know where
Speaker 1: Justice Barrett stands on this? I think she would right
Speaker 1: now tend to be with presidential authority. But that's not
Speaker 1: going to necessarily we have to see, there's not enough
Speaker 1: data to really predict. I think we know that Thomas
Speaker 1: and gorst really don't like this at all, all Right,
Speaker 1: Alito loves this. So this is what I'm saying. This
Speaker 1: is presidential power tends to be a conservative thing. Republicans
Speaker 1: tend to want more and more power in the president. Well,
Speaker 1: the Democrats are just taking advantage of that right now.
Speaker 1: They like, Okay, that's what you wanted. What's good for
Speaker 1: the goose is good for the gander. But then that's
Speaker 1: the way it works. Why are the conservatives split? Then?
Speaker 1: Why do Gorsage and Thomas oppose the presidential power and
Speaker 1: in Alito you think is for it? Well that's what
Speaker 1: they said. But why do I think they're like that?
Speaker 1: Why is the conservative block split on this? Okay? Because
Speaker 1: this is my guess about Gorsage. My guests on Gorsage
Speaker 1: is because he doesn't like the administrative state at all.
Speaker 1: So there's other things. What what I think the late
Speaker 1: what lay people or people are not experts in constitutional
Speaker 1: law or in the in the court don't understand because
Speaker 1: and they shouldn't they shouldn't have to think about these things.
Speaker 1: Is they think that everything is about um, what your pity,
Speaker 1: what your political views are. But these justices have very
Speaker 1: strong views and ideologies and theories about how the Constitution
Speaker 1: should run. So whether you you'll see that sometimes Thomas
Speaker 1: Will will actually go with the Liberals on something because
Speaker 1: of a different principle that he really wants that's more
Speaker 1: important than the results. Really, the only the most results
Speaker 1: oriented person right now on the Court is a leado.
Speaker 1: The leado almost always you can predict which way he's
Speaker 1: going to go. It's probably going to be whatever politically
Speaker 1: is conservative. And I'm not suggesting that that means he's
Speaker 1: not authentic or anything, but it just seemed. But he's
Speaker 1: the one. The others it's hard to predict. Remember Gorcich
Speaker 1: and he wrote Bostock, which was on same sex marriage.
Speaker 1: People were shocked. I was not shocked about that because
Speaker 1: Gorstch cares about textualism, and that was what he was pushing,
Speaker 1: was the textualism because he wants that argument then for
Speaker 1: the next case, and he wants to be consistent. So
Speaker 1: they're pushing agendas that we don't necessarily see. But if
Speaker 1: this went to the Supreme Court, now, what's your best
Speaker 1: guess about how it would turn out Biden would be upheld?
Speaker 1: Let's just say that Biden wasn't upheld. Has a BRUTESO
Speaker 1: done enough within the agency so that whatever or did
Speaker 1: has been ratified. I think so. I mean she's been
Speaker 1: doing a lot. I mean they have been the the
Speaker 1: NLRB has been screwed by its actions so much in
Speaker 1: the last twenty years by doing things and then it
Speaker 1: has to be re ratified, you know, no canning in
Speaker 1: other cases that went to the Supreme Court that I
Speaker 1: think it's learned its lessons, so they were ready for this.
Speaker 1: She hit the ground running, and she already had she
Speaker 1: was ratifying things. So I don't think we're going to
Speaker 1: have a replay of what happened in the early century,
Speaker 1: you know, like a decade ago. I don't think we're
Speaker 1: gonna have a replay of that. But it's going to
Speaker 1: be depend on what the court says. But my best
Speaker 1: analysis as a person who teaches both labor law and
Speaker 1: constitutional law is that we will not have a replay
Speaker 1: of that and that very little will be affected going forward. Also,
Speaker 1: there are a much stronger ground than they were a
Speaker 1: decade ago. We really I've seen a change in the
Speaker 1: perception of executive power that's much less nuanced and much
Speaker 1: more about the president has a lot of power. Thanks
Speaker 1: so much. Anne. That's Anne Lofasso, a professor at West
Speaker 1: Virginia University. And that's it for the edition of the
Speaker 1: Bloomberg Law Show. Remember you can always get the latest
Speaker 1: legal news by listening to our Bloomberg Law Podcast wherever
Speaker 1: you get your favorite podcasts. I'm June Grosso and you're
Speaker 1: listening to Bloomberg