1 00:00:03,200 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:10,200 --> 00:00:14,640 Speaker 1: The extremely tight presidential race is fueling visions of a 3 00:00:14,680 --> 00:00:19,320 Speaker 1: sequel to Bush vy Gore, the controversial Supreme Court decision 4 00:00:19,400 --> 00:00:22,479 Speaker 1: in two thousand that put George W. Bush in the 5 00:00:22,520 --> 00:00:26,759 Speaker 1: White House over Vice President Al Gore. Judges around the 6 00:00:26,840 --> 00:00:30,040 Speaker 1: country are grappling with the more than one hundred and 7 00:00:30,160 --> 00:00:35,000 Speaker 1: ninety election related lawsuits filed since twenty twenty three, and 8 00:00:35,120 --> 00:00:39,400 Speaker 1: litigants are already positioning their cases to seek quick Supreme 9 00:00:39,479 --> 00:00:44,000 Speaker 1: Court help if needed. With the six justice conservative majority, 10 00:00:44,280 --> 00:00:48,800 Speaker 1: which includes three justices appointed by former President Donald Trump, 11 00:00:49,159 --> 00:00:52,599 Speaker 1: many are concerned that politics will play a role in 12 00:00:52,640 --> 00:00:56,360 Speaker 1: any decision. A new Pew Research poll shows that a 13 00:00:56,440 --> 00:01:00,200 Speaker 1: majority of voters do not have confidence that the Supreme 14 00:01:00,240 --> 00:01:05,559 Speaker 1: Court will be politically neutral in resolving potential legal challenges 15 00:01:05,680 --> 00:01:09,760 Speaker 1: around the twenty twenty four presidential election. Despite that, most 16 00:01:09,800 --> 00:01:13,600 Speaker 1: election law experts say the legal realities and the math 17 00:01:14,040 --> 00:01:17,640 Speaker 1: make it unlikely they'll be a sequel to Bush v. Gore. 18 00:01:17,959 --> 00:01:21,959 Speaker 1: Here to explain why is Bloomberg Supreme Court reporter Greg Storr. 19 00:01:22,360 --> 00:01:24,839 Speaker 1: You know what people have in mind when they think 20 00:01:24,880 --> 00:01:28,320 Speaker 1: about this election season. The Supreme Court, they think about 21 00:01:28,319 --> 00:01:32,000 Speaker 1: Bush v. Gore, So remind us about Bush v. Gore 22 00:01:32,360 --> 00:01:35,880 Speaker 1: and why it might or might not be relevant this year. 23 00:01:36,440 --> 00:01:38,800 Speaker 2: Sure, so, Bush v. Gore came in the context of 24 00:01:38,840 --> 00:01:42,039 Speaker 2: an election that was so close between George W. Bush 25 00:01:42,040 --> 00:01:44,440 Speaker 2: and al Gore that it was decided by a single 26 00:01:44,480 --> 00:01:47,920 Speaker 2: state in less than a thousand votes. So after that 27 00:01:48,000 --> 00:01:52,720 Speaker 2: state was certified for Bush, al Gore used a provision 28 00:01:52,760 --> 00:01:55,200 Speaker 2: in Florida law that lets the loser of a very 29 00:01:55,200 --> 00:01:59,840 Speaker 2: close election can test the results, and that is essentially 30 00:02:00,120 --> 00:02:03,639 Speaker 2: what led to a ruling by the Florida Supreme Court 31 00:02:04,080 --> 00:02:07,360 Speaker 2: ordering the recounts of some ballots in the state. And 32 00:02:07,560 --> 00:02:11,280 Speaker 2: when the Supreme Court overturned that ruling on December twelfth 33 00:02:11,280 --> 00:02:14,720 Speaker 2: of twenty twenty, that had the effect of sealing that 34 00:02:14,760 --> 00:02:17,320 Speaker 2: state and therefore the election for George W. Bush. 35 00:02:17,480 --> 00:02:20,000 Speaker 1: Most election law experts that I've talked to, and apparently 36 00:02:20,080 --> 00:02:23,400 Speaker 1: that you've talked to don't think that we'll have another 37 00:02:23,560 --> 00:02:28,160 Speaker 1: Bush v. Gore this election season. Tell us why briefly, 38 00:02:28,240 --> 00:02:29,600 Speaker 1: then we will go into detail. 39 00:02:30,160 --> 00:02:32,040 Speaker 2: Now, Well, part of it is the math that I 40 00:02:32,080 --> 00:02:34,600 Speaker 2: alluded to there, which is in order for there to 41 00:02:34,680 --> 00:02:36,640 Speaker 2: be a Bush d. Gore type case, you have to 42 00:02:36,680 --> 00:02:40,760 Speaker 2: have a legal issue that will resolve enough to shift 43 00:02:40,880 --> 00:02:44,040 Speaker 2: or decide the election. Looking at say twenty twenty, you know, 44 00:02:44,240 --> 00:02:46,720 Speaker 2: Donald Trump would have needed to flip at least three 45 00:02:46,720 --> 00:02:49,840 Speaker 2: states to erase Jo Biden's victory, and the Supreme Court 46 00:02:49,919 --> 00:02:52,359 Speaker 2: showed no interest in getting involved. So that's one thing. 47 00:02:52,400 --> 00:02:54,080 Speaker 2: And the other thing, which we can get into more, 48 00:02:54,160 --> 00:02:56,680 Speaker 2: is that, for a variety of reasons, the Supreme Court 49 00:02:57,000 --> 00:02:59,839 Speaker 2: and other actors in the system, state courts have sort 50 00:02:59,840 --> 00:03:03,840 Speaker 2: of narrowed the universe of possible cases and issues that 51 00:03:04,000 --> 00:03:05,920 Speaker 2: might get to the Supreme Court in a way that 52 00:03:05,960 --> 00:03:07,160 Speaker 2: would decide the election. 53 00:03:07,600 --> 00:03:09,720 Speaker 1: Yeah, let's talk about how they, as you put in 54 00:03:09,800 --> 00:03:13,040 Speaker 1: your story, narrow the pathways, so to speak, to reach 55 00:03:13,080 --> 00:03:15,680 Speaker 1: the Supreme Court. So first, we have, and we talked 56 00:03:15,720 --> 00:03:19,600 Speaker 1: about this so much last year and even before last year, 57 00:03:20,000 --> 00:03:24,359 Speaker 1: the independent State Legislature theory that the justice is rejected. 58 00:03:24,919 --> 00:03:27,000 Speaker 2: Yeah. So this is a Supreme Court case known as 59 00:03:27,040 --> 00:03:30,360 Speaker 2: Moore versus Harper, and essentially what one side of that 60 00:03:30,440 --> 00:03:34,520 Speaker 2: case was arguing is that state supreme courts have basically 61 00:03:34,639 --> 00:03:37,880 Speaker 2: no rule in setting the election rules, that state supreme 62 00:03:37,920 --> 00:03:43,920 Speaker 2: courts cannot interpret what the state legislature has done in 63 00:03:43,960 --> 00:03:46,160 Speaker 2: a way that affects how the election is going to 64 00:03:46,200 --> 00:03:50,600 Speaker 2: be conducted. And the Supreme Court rejected that theory. It 65 00:03:50,640 --> 00:03:53,600 Speaker 2: would have given the Supreme Court itself a very broad 66 00:03:53,640 --> 00:03:56,080 Speaker 2: authority to say, hey, State Supreme Court, you have no 67 00:03:56,560 --> 00:04:00,000 Speaker 2: jurisdiction here. We're going to enforce the will of the legislator. 68 00:04:00,480 --> 00:04:04,560 Speaker 2: There's still, though, a kind of narrower argument here, which 69 00:04:04,640 --> 00:04:08,240 Speaker 2: is that if the US Supreme Court said, if a 70 00:04:08,280 --> 00:04:11,640 Speaker 2: state court is interpreting a state law in such a 71 00:04:11,640 --> 00:04:14,720 Speaker 2: way that it departs from sort of the ordinary bounds 72 00:04:14,720 --> 00:04:18,520 Speaker 2: of judicial review, that the Supreme Court can step in, 73 00:04:18,600 --> 00:04:20,680 Speaker 2: even though it doesn't usually reverse the state court on 74 00:04:20,720 --> 00:04:23,320 Speaker 2: a matter of state law, and say, State, Supreme Court, 75 00:04:23,400 --> 00:04:25,680 Speaker 2: you've gone so far beyond what you're supposed to do 76 00:04:25,960 --> 00:04:29,760 Speaker 2: that you've actually violated the US Constitution and the provisions 77 00:04:29,800 --> 00:04:32,240 Speaker 2: that govern presidential and congressional elections. 78 00:04:32,920 --> 00:04:36,560 Speaker 1: And how have the Justices limited the authority of federal 79 00:04:36,720 --> 00:04:38,960 Speaker 1: judges in election cases. 80 00:04:39,480 --> 00:04:41,440 Speaker 2: So this is something that has become known as the 81 00:04:41,520 --> 00:04:45,880 Speaker 2: Percel principle. The Supreme Court has said in a variety 82 00:04:45,920 --> 00:04:49,800 Speaker 2: of contexts that a federal judge can't come in at 83 00:04:49,839 --> 00:04:55,160 Speaker 2: the last minute and say some state law is unconstitutional 84 00:04:55,200 --> 00:04:58,279 Speaker 2: and block it just before an election. And the concern 85 00:04:58,360 --> 00:05:01,400 Speaker 2: there is that they'll be creating too much confusion and 86 00:05:01,520 --> 00:05:05,120 Speaker 2: chaos right before the election. Now, at least as it's 87 00:05:05,120 --> 00:05:07,920 Speaker 2: been applied so far, this is only something that applies 88 00:05:07,960 --> 00:05:10,719 Speaker 2: to federal judges. It doesn't apply to say what a 89 00:05:10,720 --> 00:05:13,320 Speaker 2: state supreme court does. But it does apply to the 90 00:05:13,360 --> 00:05:15,719 Speaker 2: Supreme Court itself, at least to the extent that the 91 00:05:15,720 --> 00:05:19,400 Speaker 2: Supreme Court has articulated it. And so what that potentially 92 00:05:19,480 --> 00:05:23,080 Speaker 2: means is that even if the Supreme Court sees something 93 00:05:23,520 --> 00:05:26,440 Speaker 2: you know tomorrow that it thinks the state is doing 94 00:05:26,480 --> 00:05:30,560 Speaker 2: that's unconstitutional, that the Supreme Court won't jump in in 95 00:05:31,080 --> 00:05:34,480 Speaker 2: and tell the state you've got to change what you're doing, 96 00:05:34,800 --> 00:05:38,960 Speaker 2: because that might just create confusion. So, for example, there's 97 00:05:39,320 --> 00:05:42,599 Speaker 2: something that is pending right now where RFK Junior is 98 00:05:42,600 --> 00:05:44,240 Speaker 2: trying to get his name off the ballot in a 99 00:05:44,279 --> 00:05:47,600 Speaker 2: couple of states, in Wisconsin and Michigan, and the Supreme 100 00:05:47,640 --> 00:05:50,840 Speaker 2: Court might well say in that case, you know, we're 101 00:05:50,920 --> 00:05:53,520 Speaker 2: not going to come in and tell a state where 102 00:05:53,600 --> 00:05:57,119 Speaker 2: voting has already begun suddenly you have to change who's 103 00:05:57,120 --> 00:06:00,640 Speaker 2: on the ballot. Even if we think that rus could 104 00:06:00,680 --> 00:06:01,679 Speaker 2: be on the ballot there. 105 00:06:01,839 --> 00:06:04,200 Speaker 1: So people have pointed to the fact that in twenty 106 00:06:04,240 --> 00:06:09,040 Speaker 1: twenty there were some sixty odd cases that Trump or 107 00:06:09,120 --> 00:06:12,919 Speaker 1: his followers brought and that the Supreme Court didn't intervene 108 00:06:13,000 --> 00:06:16,320 Speaker 1: in any case. But has the Supreme Court gotten more 109 00:06:16,360 --> 00:06:19,960 Speaker 1: brazen about interfering? I mean, looking at one of the 110 00:06:20,000 --> 00:06:23,640 Speaker 1: most controversial decisions of the term that allowed Trump to 111 00:06:24,080 --> 00:06:27,720 Speaker 1: avoid a federal prosecution on election interference grounds. I mean, 112 00:06:27,720 --> 00:06:29,560 Speaker 1: most people thought that the Court would. 113 00:06:29,440 --> 00:06:32,080 Speaker 2: Never go that far, No question, that was a very 114 00:06:32,680 --> 00:06:36,320 Speaker 2: bold decision, and the Court decided more than it needed 115 00:06:36,320 --> 00:06:39,120 Speaker 2: to in that case. The question is whether that translates 116 00:06:39,120 --> 00:06:42,480 Speaker 2: into the election context. And for the reasons I sort 117 00:06:42,520 --> 00:06:45,440 Speaker 2: of laid out there, and you know, the law professors 118 00:06:45,440 --> 00:06:48,200 Speaker 2: and others I talked to for the story that I wrote, 119 00:06:48,240 --> 00:06:51,880 Speaker 2: the overall senses that in terms of actually managing the election, 120 00:06:52,480 --> 00:06:55,080 Speaker 2: the Supreme Court would very much like to get out 121 00:06:55,080 --> 00:06:57,640 Speaker 2: of it. And you see this in a variety of contexts. 122 00:06:57,640 --> 00:07:01,040 Speaker 2: For example, in the context of Jerry and the Supreme 123 00:07:01,080 --> 00:07:03,360 Speaker 2: Court has said, we don't want to be involved in 124 00:07:03,520 --> 00:07:07,680 Speaker 2: deciding whether districts are too political. Now that decision got 125 00:07:07,680 --> 00:07:10,000 Speaker 2: a lot of criticism, but it is a sign of 126 00:07:10,040 --> 00:07:13,320 Speaker 2: the Supreme Court and John Roberts in particular, really not 127 00:07:13,480 --> 00:07:16,480 Speaker 2: wanting to be more deeply in this sort of stuff 128 00:07:16,680 --> 00:07:18,000 Speaker 2: than they absolutely have to. 129 00:07:18,680 --> 00:07:21,720 Speaker 1: So you also point out that state courts are also 130 00:07:21,880 --> 00:07:25,760 Speaker 1: taking some issues off the table. So let's turn to 131 00:07:25,800 --> 00:07:29,000 Speaker 1: the swing state of Georgia, which has had a lot 132 00:07:29,040 --> 00:07:33,640 Speaker 1: of litigation about elections this year. So tell us what 133 00:07:33,720 --> 00:07:35,120 Speaker 1: happened in Georgia recently. 134 00:07:35,640 --> 00:07:39,480 Speaker 2: Yeah, So, Georgia, a state election board run by Republicans 135 00:07:39,480 --> 00:07:43,880 Speaker 2: put in place a couple rules, and they included one 136 00:07:43,920 --> 00:07:46,320 Speaker 2: that said you have to have a hand counting of 137 00:07:46,400 --> 00:07:50,080 Speaker 2: ballots in every county, and another one that said that 138 00:07:50,160 --> 00:07:53,960 Speaker 2: county officials have to conduct an inquiry into the correctness 139 00:07:54,000 --> 00:07:57,320 Speaker 2: of the election results before actually certifying them. And a 140 00:07:57,720 --> 00:08:01,240 Speaker 2: lower court state judge in Georgia struck that down, and 141 00:08:01,240 --> 00:08:04,840 Speaker 2: then the Georgia's Supreme Court also rejected the challenge to that, 142 00:08:04,960 --> 00:08:07,840 Speaker 2: and that essentially meant that that rule, which could have 143 00:08:07,880 --> 00:08:11,080 Speaker 2: been a very significant deal because it could have significantly 144 00:08:11,120 --> 00:08:13,840 Speaker 2: slowed down the election results in Georgia, but that rule 145 00:08:13,920 --> 00:08:16,440 Speaker 2: is now off the table. And that was one that 146 00:08:16,880 --> 00:08:19,560 Speaker 2: some folks were very very worried about. So it's by 147 00:08:19,560 --> 00:08:22,040 Speaker 2: no means everything that state courts are taking off the table. 148 00:08:22,400 --> 00:08:25,280 Speaker 2: But there are a lot of issues, both very recently 149 00:08:25,840 --> 00:08:28,760 Speaker 2: and over the past months and years that state courts 150 00:08:28,800 --> 00:08:31,720 Speaker 2: have tried to get resolved in a way that doesn't 151 00:08:31,760 --> 00:08:34,960 Speaker 2: prevent an issue a moment of crisis for the US 152 00:08:35,000 --> 00:08:35,760 Speaker 2: Supreme Court. 153 00:08:35,920 --> 00:08:38,640 Speaker 1: There are two cases before the Court now where they 154 00:08:38,679 --> 00:08:44,280 Speaker 1: could get involved or not. Virginia is asking the justices 155 00:08:44,400 --> 00:08:48,960 Speaker 1: to revive the state's purge of voter rolls in these 156 00:08:48,960 --> 00:08:51,120 Speaker 1: final days before the election. 157 00:08:51,760 --> 00:08:55,360 Speaker 2: Yeah, Virginia, of course worth mentioning not a swing state 158 00:08:55,440 --> 00:08:58,319 Speaker 2: that we're expecting to help decide who actually wins. It's 159 00:08:58,360 --> 00:09:01,360 Speaker 2: a state that is almost certainly going for Kamala Harris. 160 00:09:01,400 --> 00:09:04,720 Speaker 2: But in Virginia, under the order of the governor there, 161 00:09:05,080 --> 00:09:09,480 Speaker 2: the state was purging its voter rules of the state 162 00:09:09,520 --> 00:09:12,040 Speaker 2: says believed to be non citizens who shouldn't be on 163 00:09:12,160 --> 00:09:16,319 Speaker 2: the voting rules, and that was halted by a federal court, 164 00:09:16,480 --> 00:09:20,520 Speaker 2: and the state is now asking the Supreme Court to 165 00:09:20,640 --> 00:09:24,160 Speaker 2: let that purge continue. The estimates that are out there 166 00:09:24,200 --> 00:09:28,360 Speaker 2: are that it's roughly sixteen hundred people whose voter registrations 167 00:09:28,360 --> 00:09:31,959 Speaker 2: are canceled. We should know potentially in the next day 168 00:09:32,040 --> 00:09:34,120 Speaker 2: or two whether the Supreme Court is going to let 169 00:09:34,120 --> 00:09:35,240 Speaker 2: that purge go forward. 170 00:09:35,600 --> 00:09:37,640 Speaker 1: So now we have I want to say Pennsylvania is 171 00:09:37,880 --> 00:09:41,280 Speaker 1: a critical swing state. It's a swing state and it's critical. 172 00:09:41,480 --> 00:09:44,959 Speaker 1: So there are a couple of cases sort of ongoing 173 00:09:44,960 --> 00:09:48,280 Speaker 1: in Pennsylvania. But tell us about the one that Republican 174 00:09:48,480 --> 00:09:50,920 Speaker 1: Party is asking the Supreme Court to take. 175 00:09:51,240 --> 00:09:54,240 Speaker 2: Yeah, you're right, there's a lot of litigation in Pennsylvania, 176 00:09:54,320 --> 00:09:57,800 Speaker 2: and we may well see more litigation at the Supreme 177 00:09:57,800 --> 00:10:00,280 Speaker 2: Court before this is all said and done. The one 178 00:10:00,280 --> 00:10:04,880 Speaker 2: that's there now has to do with people who voted 179 00:10:04,920 --> 00:10:07,839 Speaker 2: by mail, and in Pennsylvania, what you're supposed to do 180 00:10:07,920 --> 00:10:10,320 Speaker 2: is you're supposed to put your ballot inside a so 181 00:10:10,440 --> 00:10:13,520 Speaker 2: called secrecy envelope. Then you put it inside the bigger 182 00:10:13,600 --> 00:10:16,800 Speaker 2: envelope that you're going to mail, and when officials receive it, 183 00:10:17,160 --> 00:10:19,720 Speaker 2: they can't process it yet, but what they can do 184 00:10:19,800 --> 00:10:22,680 Speaker 2: is they can weigh it and they can determine whether 185 00:10:23,040 --> 00:10:26,199 Speaker 2: you may have forgotten to put put the secrecy envelope 186 00:10:26,240 --> 00:10:29,320 Speaker 2: in there. And so what officials in Pennsylvania did is 187 00:10:29,360 --> 00:10:33,280 Speaker 2: for those people who did not seemingly include their secrecy envelope. 188 00:10:33,679 --> 00:10:37,880 Speaker 2: They let them know and let those people cast a 189 00:10:38,000 --> 00:10:42,480 Speaker 2: provisional ballot that had the effect of sort of superseding 190 00:10:42,480 --> 00:10:44,200 Speaker 2: the one that they had mailed that was going to 191 00:10:44,240 --> 00:10:46,840 Speaker 2: be invalid because it didn't include the secrecy envelope. And 192 00:10:46,880 --> 00:10:49,800 Speaker 2: so the question is whether those provisional ballots are going 193 00:10:49,840 --> 00:10:52,160 Speaker 2: to count. And we don't know the exact number of 194 00:10:52,200 --> 00:10:54,720 Speaker 2: ballots that are an issue here. I've seen one estimate 195 00:10:54,760 --> 00:10:57,319 Speaker 2: that it could be anywhere between this is by law 196 00:10:57,320 --> 00:11:00,600 Speaker 2: professor Rick Pildas, anywhere between four hundred and four thousand. 197 00:11:00,760 --> 00:11:04,160 Speaker 2: But the Republican Party is arguing that under state law, 198 00:11:04,640 --> 00:11:08,040 Speaker 2: those ballots can't be counted. That election officials did not 199 00:11:08,200 --> 00:11:12,960 Speaker 2: have the authority to say we're going to essentially declare 200 00:11:13,040 --> 00:11:16,560 Speaker 2: the mail in ballot void and let you cast the 201 00:11:16,600 --> 00:11:20,120 Speaker 2: provisional ballot. So anyway, that is now at the Supreme Court, 202 00:11:20,320 --> 00:11:22,720 Speaker 2: the Republicans are asking them to put a lower court 203 00:11:22,760 --> 00:11:26,520 Speaker 2: ruling on hold that allowed the provisional ballots to be counted. 204 00:11:26,880 --> 00:11:29,960 Speaker 2: One possibility here, because it is sort of similar to 205 00:11:30,000 --> 00:11:32,320 Speaker 2: a dispute we had four years ago, is that the 206 00:11:32,320 --> 00:11:35,000 Speaker 2: Supreme Court, at least for now, will say okay, what 207 00:11:35,040 --> 00:11:37,840 Speaker 2: you need to do is to segregate those provisional ballots, 208 00:11:38,040 --> 00:11:40,960 Speaker 2: the ones that may or may not count, and we'll 209 00:11:40,960 --> 00:11:44,280 Speaker 2: figure out later whether they actually count. And so it 210 00:11:44,360 --> 00:11:46,560 Speaker 2: might be a way for the court to kick the 211 00:11:46,600 --> 00:11:48,440 Speaker 2: can down the road just a little bit, so that 212 00:11:48,480 --> 00:11:51,920 Speaker 2: they don't actually have to decide this issue until unless 213 00:11:52,000 --> 00:11:53,520 Speaker 2: it actually matters in the outcome. 214 00:11:53,840 --> 00:11:57,280 Speaker 1: Coming up, i'll continue this conversation with Bloomberg Supreme Court 215 00:11:57,320 --> 00:12:01,160 Speaker 1: reporter Greg Storre. We'll talk more about pencils. A federal 216 00:12:01,280 --> 00:12:04,440 Speaker 1: judge in that state made a ruling just today on 217 00:12:04,640 --> 00:12:09,040 Speaker 1: overseas ballots. You're listening to Bloomberg. The election is less 218 00:12:09,080 --> 00:12:11,800 Speaker 1: than a week away, and we've seen a flurry of 219 00:12:11,920 --> 00:12:15,440 Speaker 1: last minute decisions from state and federal courts across the 220 00:12:15,520 --> 00:12:20,600 Speaker 1: country in cases challenging voting rules. In the pivotal swing 221 00:12:20,640 --> 00:12:24,720 Speaker 1: state of Pennsylvania, just today, a federal judge threw out 222 00:12:24,760 --> 00:12:28,839 Speaker 1: a challenge brought by six of the state's Republican lawmakers 223 00:12:28,840 --> 00:12:32,880 Speaker 1: over overseas voting. The Republicans wanted to make state election 224 00:12:33,040 --> 00:12:38,360 Speaker 1: officials institute new checks to confirm the eligibility and identity 225 00:12:38,520 --> 00:12:42,840 Speaker 1: of soldiers, sailors, and others who vote from overseas, but 226 00:12:43,040 --> 00:12:46,640 Speaker 1: federal Judge Christopher Connor said he agreed with the defendants 227 00:12:46,880 --> 00:12:50,360 Speaker 1: Secretary of State Al Schmidt and one of his top deputies, 228 00:12:50,679 --> 00:12:53,120 Speaker 1: who argued there were no grounds to sue and that 229 00:12:53,200 --> 00:12:56,520 Speaker 1: the case was launched too late and too close to 230 00:12:56,600 --> 00:13:00,760 Speaker 1: election day. I've been talking to Bloomberg Supreme Court reporter store. 231 00:13:01,120 --> 00:13:04,120 Speaker 1: There are so many election cases going on in Pennsylvania 232 00:13:04,280 --> 00:13:07,320 Speaker 1: it's hard to keep track of them. But another fight 233 00:13:07,440 --> 00:13:10,719 Speaker 1: is over whether mail in ballots will count if the 234 00:13:10,840 --> 00:13:14,720 Speaker 1: voter didn't put the right date on the envelope. I 235 00:13:14,840 --> 00:13:19,280 Speaker 1: believe that the latest decision was that mail in ballots 236 00:13:19,440 --> 00:13:23,280 Speaker 1: without the correct date will not be counted. Is that 237 00:13:23,360 --> 00:13:26,600 Speaker 1: decision also at the Supreme Court. I'm confused as to 238 00:13:26,600 --> 00:13:27,920 Speaker 1: what stage that's at. 239 00:13:28,280 --> 00:13:30,480 Speaker 2: That is not yet at the Supreme Court. It is 240 00:13:30,520 --> 00:13:34,600 Speaker 2: still percolating. I don't know precisely the state of play 241 00:13:34,679 --> 00:13:37,679 Speaker 2: in that one, but it is an issue that has 242 00:13:37,800 --> 00:13:40,960 Speaker 2: been very controversial and it may well end up at 243 00:13:41,000 --> 00:13:44,240 Speaker 2: the Supreme Court if, particularly if Pennsylvania is so close 244 00:13:44,280 --> 00:13:45,800 Speaker 2: that those ballots might matter. 245 00:13:46,160 --> 00:13:49,000 Speaker 1: I'm thinking about Bush figor again, Greg. If one state 246 00:13:49,080 --> 00:13:51,720 Speaker 1: is so so close and there are these issues, I 247 00:13:51,760 --> 00:13:54,160 Speaker 1: feel like the Supreme Court might get involved in this. 248 00:13:54,320 --> 00:13:56,880 Speaker 1: All the experts say no, But I have this nagging feeling. 249 00:13:56,920 --> 00:13:59,920 Speaker 1: Greg tell us, because a lot of people probably don't 250 00:14:00,160 --> 00:14:03,600 Speaker 1: know about this Electoral Count Reform Act, tell us about that. 251 00:14:04,080 --> 00:14:07,480 Speaker 2: Yes. So this is the law that Congress passed in 252 00:14:07,559 --> 00:14:10,680 Speaker 2: twenty twenty two, largely in response to what happened in 253 00:14:10,720 --> 00:14:16,319 Speaker 2: twenty twenty and the efforts by Donald Trump to get 254 00:14:16,559 --> 00:14:19,280 Speaker 2: Mike Pence, who as Vice president was presiding over the 255 00:14:19,320 --> 00:14:22,880 Speaker 2: counting of electoral votes, to get him to take steps 256 00:14:22,920 --> 00:14:26,280 Speaker 2: to essentially override the will of the voters, and the 257 00:14:26,280 --> 00:14:30,840 Speaker 2: Electoral Count Reform Act, which was basically a compromise between 258 00:14:30,880 --> 00:14:34,280 Speaker 2: the parties. You know, in this time of closely divided government, 259 00:14:34,520 --> 00:14:37,360 Speaker 2: it's hard to get anything through. But among the things, 260 00:14:37,440 --> 00:14:42,560 Speaker 2: this law clarified that the vice president has only a 261 00:14:42,560 --> 00:14:46,600 Speaker 2: ceremonial role in the counting of electoral votes, that the 262 00:14:46,680 --> 00:14:52,200 Speaker 2: vice president can actually refuse to certify the result. It 263 00:14:52,240 --> 00:14:55,280 Speaker 2: does some other things as well. It sets a firm 264 00:14:55,360 --> 00:15:00,440 Speaker 2: deadline for states to submit their certified results to Congress. 265 00:15:00,480 --> 00:15:03,720 Speaker 2: It had previously been a little bit fuzzy. It was 266 00:15:03,880 --> 00:15:07,280 Speaker 2: sort of a soft deadline. And it also raises a 267 00:15:07,360 --> 00:15:10,280 Speaker 2: threshold for lawmakers who want to object to the results 268 00:15:10,280 --> 00:15:13,080 Speaker 2: from some state. And if you recall, in twenty twenty, 269 00:15:13,320 --> 00:15:16,440 Speaker 2: it took only one member of Congress to object to 270 00:15:16,480 --> 00:15:20,520 Speaker 2: the results, and now you'd have to have twenty percent 271 00:15:20,600 --> 00:15:25,000 Speaker 2: in each chamber. So that law is, you know, mostly 272 00:15:25,080 --> 00:15:29,640 Speaker 2: designed to avoid people trying to overturn the results during 273 00:15:29,680 --> 00:15:33,400 Speaker 2: the counting of electoral votes, or to eliminate the kind 274 00:15:33,440 --> 00:15:38,600 Speaker 2: of chaos and controversy that happened four years ago. It 275 00:15:38,640 --> 00:15:41,440 Speaker 2: may also create along the way some legal issues that 276 00:15:41,480 --> 00:15:43,240 Speaker 2: are a little hard to foresee now, you know, some 277 00:15:43,280 --> 00:15:45,600 Speaker 2: things that maybe aren't clear i haven't been tested in 278 00:15:45,640 --> 00:15:49,360 Speaker 2: the courts. That often happens with new laws. But it 279 00:15:49,440 --> 00:15:52,320 Speaker 2: might also in the hopes of people who supported it, 280 00:15:52,600 --> 00:15:55,920 Speaker 2: to sort of reduce the opportunity for controversies. 281 00:15:56,640 --> 00:16:01,640 Speaker 1: You know, as we were discussing, there are lawsuits in 282 00:16:01,760 --> 00:16:06,440 Speaker 1: a lot of the swing states, Pennsylvania's ballot rules, Georgia's 283 00:16:06,480 --> 00:16:11,120 Speaker 1: certification requirements, and these lawsuits are sort of coming up 284 00:16:11,120 --> 00:16:15,280 Speaker 1: the ladder and after the election. I mean, could they 285 00:16:15,280 --> 00:16:18,440 Speaker 1: become issues that the Supreme Court will deal with? 286 00:16:18,880 --> 00:16:24,080 Speaker 2: Yeah, they could. There are cases out there where both 287 00:16:24,120 --> 00:16:26,680 Speaker 2: sides have sort of tested out their arguments, they've been 288 00:16:26,920 --> 00:16:31,280 Speaker 2: accepted or rejected by lower courts, and there's at least 289 00:16:31,320 --> 00:16:35,160 Speaker 2: the possibility that that would give one side or the 290 00:16:35,200 --> 00:16:37,760 Speaker 2: other sort of a quick avenue to the Supreme Court. 291 00:16:37,880 --> 00:16:40,800 Speaker 2: So mentioned to start off talking about Bush v. Gore 292 00:16:40,880 --> 00:16:44,000 Speaker 2: and how that particular case didn't actually get to the 293 00:16:44,040 --> 00:16:48,920 Speaker 2: Supreme Court until just a few days before the December 294 00:16:48,960 --> 00:16:52,960 Speaker 2: twelfth deadline. And now that sort of thing could happen again, 295 00:16:53,000 --> 00:16:55,480 Speaker 2: because states do have these procedures where you can challenge 296 00:16:55,280 --> 00:16:58,800 Speaker 2: the results if you're loser by a very close margin. 297 00:16:58,840 --> 00:17:01,680 Speaker 2: But there's also the possibility that, you know, a pre 298 00:17:01,800 --> 00:17:05,680 Speaker 2: existing case could get to the Supreme Court and affect 299 00:17:05,920 --> 00:17:09,360 Speaker 2: what happens before a state certifies its results. 300 00:17:09,560 --> 00:17:11,640 Speaker 1: Every time I talk to you, I think I mentioned 301 00:17:11,680 --> 00:17:13,800 Speaker 1: that confidence in the Supreme Court is that an all 302 00:17:13,840 --> 00:17:17,680 Speaker 1: time low, sinking, sinking, sinking, And a new Pew Research 303 00:17:18,040 --> 00:17:21,440 Speaker 1: Center poll shows that only twenty percent of voters are 304 00:17:21,520 --> 00:17:24,960 Speaker 1: highly confident the Supreme Court would be politically neutral in 305 00:17:25,040 --> 00:17:29,880 Speaker 1: any election case. Might that affect their desire to get 306 00:17:29,920 --> 00:17:31,440 Speaker 1: involved in an election case? 307 00:17:32,080 --> 00:17:35,760 Speaker 2: I think it almost certainly is affecting their desire. I 308 00:17:35,760 --> 00:17:39,560 Speaker 2: think it's pretty clear that they would prefer not deciding 309 00:17:39,760 --> 00:17:43,000 Speaker 2: this case, not doing something, not having another bushby Gore. 310 00:17:44,280 --> 00:17:47,959 Speaker 2: Whether that's actually enough to make the difference is another question. 311 00:17:48,560 --> 00:17:51,480 Speaker 2: You know, ultimately, so many things the Supreme Court does 312 00:17:51,760 --> 00:17:55,119 Speaker 2: or matters of discretion that you know, even Bush v. 313 00:17:55,240 --> 00:17:59,720 Speaker 2: Gore was a case where the Court didn't actually have 314 00:17:59,800 --> 00:18:03,000 Speaker 2: to take it. But what we've heard from members of 315 00:18:03,000 --> 00:18:06,040 Speaker 2: the majority in the aftermath was they felt like it 316 00:18:06,200 --> 00:18:09,439 Speaker 2: was their rule at this moment of real chaos and 317 00:18:09,520 --> 00:18:12,480 Speaker 2: confusion and controversy that had gone on for weeks, to 318 00:18:12,560 --> 00:18:15,520 Speaker 2: provide some certainty. And you know, at this stage it's 319 00:18:15,520 --> 00:18:18,359 Speaker 2: impossible to say for sure whether this desire not to 320 00:18:18,359 --> 00:18:22,399 Speaker 2: get involved will be overridden by their sense, which may 321 00:18:22,480 --> 00:18:23,840 Speaker 2: or may not be the same as your sense or 322 00:18:23,840 --> 00:18:26,080 Speaker 2: my sense, but their sense that they are needed to 323 00:18:26,119 --> 00:18:30,639 Speaker 2: come in and create a final decision that you know, 324 00:18:30,760 --> 00:18:33,200 Speaker 2: they would hope would be accepted by the country. 325 00:18:33,400 --> 00:18:35,800 Speaker 1: Do you think that we'll hear this week about whether 326 00:18:35,800 --> 00:18:38,680 Speaker 1: they're going to take the Virginia and Pennsylvania cases. 327 00:18:39,440 --> 00:18:43,440 Speaker 2: I think we will almost certainly hear something about those cases. 328 00:18:44,000 --> 00:18:46,719 Speaker 2: I would not use the word take, because these are 329 00:18:46,760 --> 00:18:49,840 Speaker 2: probably just going to be orders that say, you know, 330 00:18:50,000 --> 00:18:52,760 Speaker 2: either Virginia can purge these names in the voting list, 331 00:18:52,880 --> 00:18:56,320 Speaker 2: or they can't, you know, and it may be you know, 332 00:18:56,320 --> 00:18:58,840 Speaker 2: in order that says these folks can or cannot cast 333 00:18:58,880 --> 00:19:02,320 Speaker 2: those provisional ballots, or as I said, requiring officials to 334 00:19:02,640 --> 00:19:05,320 Speaker 2: segregate the battles so they can decide it later. I 335 00:19:05,320 --> 00:19:07,920 Speaker 2: think we will get something from them, if it is 336 00:19:08,040 --> 00:19:10,439 Speaker 2: not likely to be because nobody is asking for it 337 00:19:10,440 --> 00:19:12,960 Speaker 2: at this point. One of these cases where they schedule 338 00:19:13,040 --> 00:19:15,800 Speaker 2: arguments and you know, actually issue a big ruling on 339 00:19:15,840 --> 00:19:17,600 Speaker 2: the merits no time for that. 340 00:19:18,880 --> 00:19:23,000 Speaker 1: Election days coming. Thanks so much, Greg, my pleasure. We 341 00:19:23,080 --> 00:19:27,840 Speaker 1: will see how this all plays out shortly. That's Bloomberg 342 00:19:27,880 --> 00:19:30,840 Speaker 1: Supreme Court reporter Greg Store. Coming up next on the 343 00:19:30,880 --> 00:19:34,159 Speaker 1: Bloomberg Law Show, We're going to be talking about the 344 00:19:34,240 --> 00:19:39,720 Speaker 1: Court's shift to analyzing cases based on history and tradition. 345 00:19:40,160 --> 00:19:43,560 Speaker 1: It's an approach that even has judges going to libraries 346 00:19:43,600 --> 00:19:47,800 Speaker 1: to check on historical data. You might say it's a 347 00:19:47,920 --> 00:19:52,560 Speaker 1: new alway of looking at constitutional questions. The Supreme Court 348 00:19:52,760 --> 00:19:56,959 Speaker 1: super conservative majority is now relying more and more on 349 00:19:57,200 --> 00:20:01,720 Speaker 1: history and tradition to analyze issue, whether it's abortion rights, 350 00:20:01,840 --> 00:20:05,639 Speaker 1: gun rights, or free speech rights and it has judges 351 00:20:05,680 --> 00:20:09,639 Speaker 1: and lawyers alike saying it's making their jobs more difficult. 352 00:20:10,320 --> 00:20:13,640 Speaker 1: Joining me is Lydio Wheeler Bloomberg Laws, Supreme Court reporter 353 00:20:13,880 --> 00:20:18,120 Speaker 1: who's written about this. Lydia explain the history and tradition, 354 00:20:19,040 --> 00:20:23,520 Speaker 1: test analysis, focus, whatever you might call it of the 355 00:20:23,520 --> 00:20:25,640 Speaker 1: conservative Supreme Court justices. 356 00:20:26,000 --> 00:20:29,760 Speaker 3: So, the Court's conservatives six to three majority has been 357 00:20:29,840 --> 00:20:35,359 Speaker 3: turning to history and tradition to settle basically constitutional questions. 358 00:20:35,440 --> 00:20:39,600 Speaker 3: So we saw them cite centuries old treaties. When the 359 00:20:39,640 --> 00:20:44,320 Speaker 3: Court overturned abortion rights, they pointed to English history dating 360 00:20:44,400 --> 00:20:47,640 Speaker 3: back to the late sixteen hundreds when they allowed more 361 00:20:47,680 --> 00:20:51,160 Speaker 3: guns to be carried in public. And they looked at 362 00:20:51,200 --> 00:20:55,160 Speaker 3: state practices from the founding era of our country when 363 00:20:55,200 --> 00:20:58,600 Speaker 3: they rejected a free speech challenge just last term to 364 00:20:58,720 --> 00:21:03,480 Speaker 3: trademark restriction. So you know, they're constantly taking what they 365 00:21:03,520 --> 00:21:06,840 Speaker 3: call an originalist theory to decide these cases. 366 00:21:07,480 --> 00:21:11,399 Speaker 1: Can you pinpoint when this started? Because the late Justice 367 00:21:11,640 --> 00:21:16,840 Speaker 1: antonin Scalia, conservative icon promoted this originalist theory. But I 368 00:21:16,880 --> 00:21:19,359 Speaker 1: remember one interview where he didn't even think it was 369 00:21:19,400 --> 00:21:21,440 Speaker 1: going to take off the way it has. He said 370 00:21:21,480 --> 00:21:23,440 Speaker 1: something like, well, this will be something law students will 371 00:21:23,440 --> 00:21:27,000 Speaker 1: be talking about when did it become so important that 372 00:21:27,080 --> 00:21:30,199 Speaker 1: even the liberal justices are having to use it. 373 00:21:30,560 --> 00:21:33,080 Speaker 3: So we really saw it in a gun rights case 374 00:21:33,359 --> 00:21:36,960 Speaker 3: known as the United States versus Brashemi. That was a 375 00:21:37,000 --> 00:21:41,600 Speaker 3: decision last term, you know, considering the legality of a 376 00:21:41,680 --> 00:21:45,080 Speaker 3: law that banned firearms for those subjects to a domestic 377 00:21:45,160 --> 00:21:48,800 Speaker 3: violence restraining order. But even prior to Bohemi, we really 378 00:21:48,840 --> 00:21:51,440 Speaker 3: saw it in the Bruin case that was another gun 379 00:21:51,520 --> 00:21:55,119 Speaker 3: rights law, you know, that was asking about where you 380 00:21:55,200 --> 00:21:58,800 Speaker 3: can carry guns in public or not, and so the 381 00:21:58,840 --> 00:22:02,480 Speaker 3: court really relied on history and tradition it's to determine 382 00:22:02,520 --> 00:22:06,240 Speaker 3: these constitutional questions. But it's not just in gun rights 383 00:22:06,280 --> 00:22:08,600 Speaker 3: cases that we're seeing it now. It's really carrying over 384 00:22:08,920 --> 00:22:14,119 Speaker 3: into all sorts of other disputes mostly related to constitutional questions. 385 00:22:14,560 --> 00:22:18,400 Speaker 1: And do the justices even agree on exactly what it is? 386 00:22:18,440 --> 00:22:22,760 Speaker 1: Because in Raheemi, which you mentioned, there were five concurrences 387 00:22:22,800 --> 00:22:25,200 Speaker 1: and it was an eight to one decision and each 388 00:22:25,960 --> 00:22:28,560 Speaker 1: justice seemed to want to explain their idea of what 389 00:22:28,600 --> 00:22:28,919 Speaker 1: it is. 390 00:22:29,920 --> 00:22:33,520 Speaker 3: Yeah, we are seeing a lot of separate writings in cases. 391 00:22:34,280 --> 00:22:38,159 Speaker 3: You know, we saw specifically in Rahimi where each Justice 392 00:22:38,200 --> 00:22:40,520 Speaker 3: is kind of trying to figure it out and explain 393 00:22:40,600 --> 00:22:42,840 Speaker 3: their own approach to this. So there is a lot 394 00:22:42,880 --> 00:22:45,760 Speaker 3: of disagreement on the court, and we're hearing from lower 395 00:22:45,800 --> 00:22:48,879 Speaker 3: court judges that this is causing confusion for them and 396 00:22:48,960 --> 00:22:53,080 Speaker 3: that this history and tradition kind of analysis has actually 397 00:22:53,080 --> 00:22:54,399 Speaker 3: made their job a lot harder. 398 00:22:54,680 --> 00:22:57,160 Speaker 1: And you write that some lower court judges are going 399 00:22:57,160 --> 00:23:00,280 Speaker 1: to the library to do their own historical research. 400 00:23:00,760 --> 00:23:01,000 Speaker 2: Yeah. 401 00:23:01,040 --> 00:23:04,480 Speaker 3: Absolutely so. We heard from Judge Pamela Harris, she is 402 00:23:04,520 --> 00:23:07,920 Speaker 3: an Obama appointee on the Virginia based Fourth Circuit Court 403 00:23:07,920 --> 00:23:10,800 Speaker 3: of Appeals, and she said that, yes, you know, judges 404 00:23:10,880 --> 00:23:12,760 Speaker 3: have to go to the library now to do their 405 00:23:12,800 --> 00:23:16,160 Speaker 3: own historical research. And you know, I heard her speak 406 00:23:16,200 --> 00:23:19,080 Speaker 3: at a law conference in September and she was really 407 00:23:19,240 --> 00:23:22,360 Speaker 3: lamenting the fact that judges now have to go back 408 00:23:22,480 --> 00:23:26,360 Speaker 3: in time, she said, and become historians. And short of that, 409 00:23:26,520 --> 00:23:29,000 Speaker 3: she said, you know that she's finding it very very 410 00:23:29,119 --> 00:23:32,520 Speaker 3: challenging to do her job and that this has actually 411 00:23:32,600 --> 00:23:37,200 Speaker 3: raised some practical questions about how she should approach her decision. 412 00:23:37,920 --> 00:23:40,399 Speaker 1: It must be really time consuming. 413 00:23:41,600 --> 00:23:45,160 Speaker 3: Yeah, absolutely, so that's something even conservative judges are saying. 414 00:23:45,240 --> 00:23:48,200 Speaker 3: You know, I heard from David Strass, he's a Trump 415 00:23:48,200 --> 00:23:51,199 Speaker 3: appointee on the Missouri based Ace Circuit Court. You know, 416 00:23:51,280 --> 00:23:53,960 Speaker 3: he said he's not, you know, more challenging to do 417 00:23:54,000 --> 00:23:56,320 Speaker 3: this kind of work, but he is acknowledging that it 418 00:23:56,600 --> 00:23:58,879 Speaker 3: takes longer, you know, and that to go and do 419 00:23:58,960 --> 00:24:01,840 Speaker 3: this kind of research, it's taking him longer to write 420 00:24:01,880 --> 00:24:04,840 Speaker 3: his opinions. And you know, Pamela Harris who was on 421 00:24:04,880 --> 00:24:07,879 Speaker 3: this panel with Judge Struck, she said that, you know, 422 00:24:08,040 --> 00:24:11,199 Speaker 3: it's raising questions for her about if she wants to 423 00:24:11,359 --> 00:24:14,480 Speaker 3: join a colleague's opinion, you know, because it's a three 424 00:24:14,560 --> 00:24:17,440 Speaker 3: judge panel that is hearing this appeal. And if her 425 00:24:17,480 --> 00:24:21,280 Speaker 3: colleague who's writing the majority, did their own historical research, 426 00:24:21,320 --> 00:24:23,640 Speaker 3: she was asking, does that mean she has to kind 427 00:24:23,640 --> 00:24:26,880 Speaker 3: of go back and also do her own historical research 428 00:24:26,960 --> 00:24:29,639 Speaker 3: to back check them. So those are the kind of 429 00:24:29,680 --> 00:24:32,399 Speaker 3: practical questions. You know, even judges are saying, what do 430 00:24:32,440 --> 00:24:32,960 Speaker 3: we do here? 431 00:24:33,600 --> 00:24:37,600 Speaker 1: Is anybody saying, yes, this is terrific. Let's go back 432 00:24:37,640 --> 00:24:41,960 Speaker 1: to the sixteen and seventeen hundreds when society and technology 433 00:24:42,000 --> 00:24:44,600 Speaker 1: and everything else was so different. Let's go back to 434 00:24:44,680 --> 00:24:48,640 Speaker 1: find our opinion today. Does anyone really love this test? 435 00:24:48,920 --> 00:24:51,320 Speaker 3: It seems like some members of the court do like it, 436 00:24:51,840 --> 00:24:55,399 Speaker 3: and you know, they view the Constitution as it should 437 00:24:55,440 --> 00:24:58,320 Speaker 3: be interpreted as the way it was written when it 438 00:24:58,440 --> 00:25:01,800 Speaker 3: was adopted in the seven eventeen hundreds, and so we 439 00:25:01,840 --> 00:25:04,280 Speaker 3: are seeing time and time again they're returning to this, 440 00:25:04,640 --> 00:25:07,440 Speaker 3: and we are seeing that this is something that law 441 00:25:07,480 --> 00:25:10,000 Speaker 3: schools kind of are behind the curve on and are 442 00:25:10,160 --> 00:25:13,359 Speaker 3: just now starting to think, Okay, maybe we need to 443 00:25:13,400 --> 00:25:17,600 Speaker 3: start offering some classes and training, you know, our students 444 00:25:17,680 --> 00:25:19,639 Speaker 3: on kind of this originalist theory. 445 00:25:20,359 --> 00:25:22,840 Speaker 1: What does this mean as far as the kinds of 446 00:25:23,000 --> 00:25:26,119 Speaker 1: clerks that judges are looking for nowadays. 447 00:25:26,560 --> 00:25:28,720 Speaker 3: Yeah, So it really seems like that any clerk who 448 00:25:28,760 --> 00:25:32,240 Speaker 3: has this experience in this historical research kind of has 449 00:25:32,240 --> 00:25:35,119 Speaker 3: a leg up when they're applying for clerkships. So I 450 00:25:35,200 --> 00:25:38,960 Speaker 3: chatted with Esha Nan. She's at Stanford Supreme Court Litigation 451 00:25:39,040 --> 00:25:42,760 Speaker 3: Clinic and she's also on the law school's Clerkship committee, 452 00:25:42,800 --> 00:25:45,560 Speaker 3: and she said that she's seen students kind of get 453 00:25:45,560 --> 00:25:48,640 Speaker 3: an advantage if they have this experience or a background 454 00:25:48,680 --> 00:25:52,320 Speaker 3: in historical research. She said that judges are definitely interested 455 00:25:52,400 --> 00:25:55,560 Speaker 3: and perk up when they hear that that experience is, 456 00:25:55,680 --> 00:25:58,600 Speaker 3: you know, on that student's resume when they're hiring for 457 00:25:58,720 --> 00:26:01,399 Speaker 3: future clerks, because it is taking them a lot of 458 00:26:01,440 --> 00:26:04,000 Speaker 3: time to do their own historical research. So you know, 459 00:26:04,080 --> 00:26:07,640 Speaker 3: there are kind of are looking potentially at clerks who 460 00:26:07,760 --> 00:26:10,280 Speaker 3: already have experience doing this to make the process maybe 461 00:26:10,280 --> 00:26:11,000 Speaker 3: go a little smoother. 462 00:26:11,720 --> 00:26:15,679 Speaker 1: Are any of these judges concerned that this is just 463 00:26:15,720 --> 00:26:18,439 Speaker 1: going to become overwhelming? I mean, they're supposed to be 464 00:26:18,440 --> 00:26:21,679 Speaker 1: interpreting the law and not interpreting history, according to what 465 00:26:21,760 --> 00:26:23,360 Speaker 1: we were taught in law school. 466 00:26:24,000 --> 00:26:26,399 Speaker 3: So that was you know, Judge Harris on the Fourth Circuit, 467 00:26:26,480 --> 00:26:28,800 Speaker 3: you know, she had a lot of concerns about this 468 00:26:29,000 --> 00:26:31,720 Speaker 3: and about if she's doing it right. And because that's 469 00:26:31,800 --> 00:26:34,280 Speaker 3: one thing that even you know, attorneys that argue before 470 00:26:34,280 --> 00:26:37,160 Speaker 3: the court regularly say is difficult. So I chatted with 471 00:26:37,320 --> 00:26:41,920 Speaker 3: one lawyer who said that this analysis is tough because 472 00:26:42,160 --> 00:26:44,800 Speaker 3: there can be so much material to come through. You know. 473 00:26:44,880 --> 00:26:47,520 Speaker 3: He said that you sometimes might have to go back, 474 00:26:47,760 --> 00:26:49,800 Speaker 3: you know and look at state and federal laws that 475 00:26:49,880 --> 00:26:53,240 Speaker 3: are hundreds of years old and go back in time 476 00:26:53,400 --> 00:26:55,959 Speaker 3: that far. So, yeah, it is something that judges are 477 00:26:55,960 --> 00:26:59,920 Speaker 3: saying are difficult. You know, my colleagues, Suzanne Moniac reported 478 00:27:00,080 --> 00:27:03,720 Speaker 3: that some law schools are actually getting pressured to teach 479 00:27:03,880 --> 00:27:07,439 Speaker 3: this originalist theory. Like I mentioned before, it's the theory 480 00:27:07,480 --> 00:27:11,200 Speaker 3: that the Constitution should be interpreted as it was understood 481 00:27:11,200 --> 00:27:13,880 Speaker 3: at the time that it was adopted in seventeen eighty eight. 482 00:27:14,320 --> 00:27:17,640 Speaker 3: And one conservative appeals clerk judge actually a mults Apar 483 00:27:18,320 --> 00:27:21,480 Speaker 3: the Ohio based sic circuit. He urged donors in a 484 00:27:21,520 --> 00:27:24,160 Speaker 3: recent speech at a Heritage event. You know, he said 485 00:27:24,200 --> 00:27:26,560 Speaker 3: to donors that you should withhold your support for law 486 00:27:26,600 --> 00:27:31,280 Speaker 3: schools until they actually start hiring ideologically diverse teachers and 487 00:27:31,400 --> 00:27:34,800 Speaker 3: start teaching this originalist theory, you know, because he said 488 00:27:34,840 --> 00:27:39,000 Speaker 3: that judges need clerks and attorneys who were equipped with 489 00:27:39,119 --> 00:27:42,440 Speaker 3: this understanding of this theory of law. And he said 490 00:27:42,440 --> 00:27:46,280 Speaker 3: that judges are just overworked and lack the time to 491 00:27:46,359 --> 00:27:48,560 Speaker 3: kind of pour over these historical texts. 492 00:27:48,720 --> 00:27:52,840 Speaker 1: Well, I remember that Justice Scalia and Justice Stephen Bryer 493 00:27:53,000 --> 00:27:57,359 Speaker 1: used to appear together to talk about the Constitution, and 494 00:27:57,600 --> 00:28:01,439 Speaker 1: it was Justice Scalia advanced in the originalist theory and 495 00:28:01,680 --> 00:28:06,200 Speaker 1: Justice Bryer advancing the living constitution theory. You don't hear 496 00:28:06,320 --> 00:28:09,840 Speaker 1: much talk about the living Constitution anymore on the Court. 497 00:28:09,920 --> 00:28:13,160 Speaker 1: I think even Justice Kagan said at one point, we're 498 00:28:13,200 --> 00:28:14,160 Speaker 1: all originalists. 499 00:28:14,160 --> 00:28:17,439 Speaker 3: Now, yeah, I think that is a byproduct of the 500 00:28:17,440 --> 00:28:20,760 Speaker 3: fact that we have a six three conservative majority on 501 00:28:20,800 --> 00:28:24,720 Speaker 3: the Court, and so, you know, the liberal wing is 502 00:28:24,800 --> 00:28:27,280 Speaker 3: at a disadvantage here. If they want to or if 503 00:28:27,320 --> 00:28:30,040 Speaker 3: they have that view of the Constitution, you know, they 504 00:28:30,640 --> 00:28:33,720 Speaker 3: I think, to seed ground or maybe fine common ground. 505 00:28:34,000 --> 00:28:37,360 Speaker 3: They have to kind of look at this historical analysis 506 00:28:37,400 --> 00:28:40,960 Speaker 3: themselves and try to find the path forward, you know, 507 00:28:41,240 --> 00:28:42,600 Speaker 3: working within that framework. 508 00:28:43,240 --> 00:28:46,840 Speaker 1: I was looking at the Supreme Court calendar for next month, 509 00:28:47,320 --> 00:28:50,400 Speaker 1: and I have to say I wasn't very excited with 510 00:28:50,520 --> 00:28:54,400 Speaker 1: the cases there, besides election issues that may be coming up, 511 00:28:54,560 --> 00:28:57,400 Speaker 1: which I spoke to Greg Store about. I mean, how 512 00:28:57,400 --> 00:29:01,440 Speaker 1: would you characterize this term from what we've seen so far. 513 00:29:02,520 --> 00:29:05,080 Speaker 3: Yeah, So attorneys we talked to, you know, at the 514 00:29:05,120 --> 00:29:07,880 Speaker 3: start of the Supreme Court term really said that this 515 00:29:08,040 --> 00:29:11,480 Speaker 3: is going to be lacking in the number of blockbusters 516 00:29:11,480 --> 00:29:14,200 Speaker 3: that the Court is hearing right off the bat, and 517 00:29:14,320 --> 00:29:17,360 Speaker 3: actually a lot of these cases for the first couple 518 00:29:17,320 --> 00:29:19,200 Speaker 3: of months are going to be what he described as 519 00:29:19,280 --> 00:29:22,320 Speaker 3: kind of the beaten potatoes type cases that we typically see. 520 00:29:22,360 --> 00:29:26,440 Speaker 3: You know, they're digging into complicated statutory questions over laws, 521 00:29:26,560 --> 00:29:31,520 Speaker 3: and so a little bit more drier of the subject areas. 522 00:29:31,560 --> 00:29:35,040 Speaker 3: But you know, the Court is still taking action on 523 00:29:35,080 --> 00:29:39,200 Speaker 3: its emergency docket. Just yesterday we saw that the Supreme 524 00:29:39,240 --> 00:29:43,320 Speaker 3: Court agreed to stop of ruling from the Fifth Circuit 525 00:29:43,360 --> 00:29:47,560 Speaker 3: from taking effect that found the enforcement provisions of a 526 00:29:47,600 --> 00:29:52,240 Speaker 3: federal anti doping horse racing law unconstitutional. So the Court, 527 00:29:52,320 --> 00:29:55,920 Speaker 3: you know, stayed that decision from the Fifth Circuit, which 528 00:29:55,960 --> 00:29:59,080 Speaker 3: really came down against a federal law known as the 529 00:29:59,160 --> 00:30:02,560 Speaker 3: Horse Racing int Gerty and Safety Act. And the Justices 530 00:30:02,640 --> 00:30:06,360 Speaker 3: put that decision on hold while they consider whether to 531 00:30:06,440 --> 00:30:10,000 Speaker 3: hear the dispute over you in this case. And you know, 532 00:30:10,040 --> 00:30:13,880 Speaker 3: that's a law that actually empowers a private organization known 533 00:30:13,880 --> 00:30:17,160 Speaker 3: as the horse Racing Integrity and Safety Authority to set 534 00:30:17,200 --> 00:30:21,600 Speaker 3: in enforced rules for the industry. And the Fifth Circuit said, well, 535 00:30:21,720 --> 00:30:26,160 Speaker 3: those enforcement provisions violates what's called the private non delegation doctrine, 536 00:30:26,440 --> 00:30:29,320 Speaker 3: which is a legal principle that says that a private 537 00:30:29,440 --> 00:30:34,760 Speaker 3: entity may wield government power only if it functions subordinately 538 00:30:34,880 --> 00:30:39,080 Speaker 3: to the agency with authority in surveillance over it. So 539 00:30:39,480 --> 00:30:43,719 Speaker 3: they said that this is a law, these enforcement provisions 540 00:30:43,840 --> 00:30:48,280 Speaker 3: are unconstitutional, and the Supreme Court has already stepped in 541 00:30:48,320 --> 00:30:50,480 Speaker 3: to say, oh wait, we're going to put that on hold. Well, 542 00:30:50,480 --> 00:30:52,440 Speaker 3: we consider whether to hear this case or not. 543 00:30:52,760 --> 00:30:56,640 Speaker 1: The Fifth Circuit being the most conservative circuit in the 544 00:30:56,760 --> 00:31:00,720 Speaker 1: country that often sort of pushes the envelope the law 545 00:31:01,080 --> 00:31:05,960 Speaker 1: with novel theories, and the Supreme Court last term in particular, 546 00:31:06,720 --> 00:31:10,320 Speaker 1: had to use the term put them in place by 547 00:31:10,400 --> 00:31:13,440 Speaker 1: reversing a lot of their decisions. Are you keeping track 548 00:31:13,480 --> 00:31:16,800 Speaker 1: of how many Fifth Circuit cases the Supreme Court is 549 00:31:16,840 --> 00:31:19,640 Speaker 1: hearing this term. I haven't counted them up yet. 550 00:31:19,880 --> 00:31:22,960 Speaker 3: My colleague has a spreadsheet and she was just looking 551 00:31:23,000 --> 00:31:25,000 Speaker 3: at them the other day, and it is it is 552 00:31:25,120 --> 00:31:28,760 Speaker 3: quite a few, actually, But we haven't done the comparison 553 00:31:28,840 --> 00:31:31,960 Speaker 3: yet to past terms, but it looks like there are 554 00:31:32,240 --> 00:31:34,840 Speaker 3: a lot of the certain cases already popping up, so 555 00:31:34,920 --> 00:31:36,560 Speaker 3: that's going to be something to watch for sure. 556 00:31:36,880 --> 00:31:40,360 Speaker 1: Okay, thanks so much, Lydia. That's Bloomberg Law Supreme Court 557 00:31:40,400 --> 00:31:43,320 Speaker 1: reporter Lydia Wheeler, and that's it for this edition of 558 00:31:43,320 --> 00:31:46,360 Speaker 1: the Bloomberg Law Podcast. Remember you can always get the 559 00:31:46,440 --> 00:31:49,400 Speaker 1: latest legal news by subscribing and listening to the show 560 00:31:49,520 --> 00:31:53,520 Speaker 1: on Apple Podcasts. Spotify and at Bloomberg dot com, slash 561 00:31:53,560 --> 00:31:58,040 Speaker 1: podcast slash Law. I'm June Grosso and this is Bloomberg