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

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Speaker 2: From where I'm saying, I could see him like through

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Speaker 2: the window, and then he just kind of turned to

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Speaker 2: my right and then he fired about ten to fifteen shots. Well,

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Speaker 2: when we heard the shots, we kind of just like

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Speaker 2: dropped to the floor and like flung ourselves like into

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Speaker 2: like a corner.

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Speaker 1: Sixteen year old Lyla Sairas had been sitting next to

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Speaker 1: Colt Gray in math class just before the shooting that

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Speaker 1: killed two teachers and two students and injured nine others.

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Speaker 1: The shooting at Georgia's Appalachi High School is the twenty

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Speaker 1: third school shooting this year and the deadliest.

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Speaker 3: In essence, You were charged with four counts of felony murder,

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Speaker 3: as outlined in the state warrants that have been issued

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Speaker 3: against you.

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Speaker 1: Fourteen year old Colt Gray has been charged with four

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Speaker 1: counts of murder. His father is also being prosecuted for

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Speaker 1: the shootings. Colin Gray has been charged with four counts

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Speaker 1: of involuntary manslaughter, two counts of felony murder, and eight

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Speaker 1: counts of cruelty to children. Barrow County District Attorney Brad

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Speaker 1: Smith says there's no broader meaning in bringing charges against

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Speaker 1: the father.

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Speaker 2: I'm not trying to send a message.

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Speaker 3: I'm just trying.

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Speaker 4: To use the tools.

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Speaker 1: Of arsenal to prosecute people for the crown. The commit

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Speaker 1: joining me is Echo Yanka, a professor at the University

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Speaker 1: of Michigan Law School. They charged the father right away.

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Speaker 1: Do you think the speed is because there was sort

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Speaker 1: of a precedent already set in the case against the

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Speaker 1: parents in the Michigan school shooting.

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Speaker 4: You're right to notice the speed at which they charged

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Speaker 4: the father. It is one of the things that shows

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Speaker 4: that we're entering into a new legal world. As you

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Speaker 4: point out, the Ethan Crumley case in Michigan where the

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Speaker 4: parents were convicted, was considered setting and hath breaking. But

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Speaker 4: it doesn't take long for a case that was seen

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Speaker 4: as utterly novel to be in a prosecutor's back pocket

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Speaker 4: and result in charges in just hours in the next

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Speaker 4: set of egregious, horrible cases. But it shows you that

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Speaker 4: what was, you know, completely novel becomes a ready made

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Speaker 4: tool for the next case. I don't know if they

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Speaker 4: charge him so quickly because of some facts they found

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Speaker 4: during the case. Something he said during the interview. And

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Speaker 4: of course, the other feature of the Crumbley case to

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Speaker 4: keep in mind is that the parents of Ethan Crumley

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Speaker 4: were on the run in Detroit for quite some time

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Speaker 4: before the police found them, So perhaps prosecutors had the

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Speaker 4: flight risk in mind. But you're absolutely right. We're in

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Speaker 4: a little bit of a new world when this is

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Speaker 4: something prosecutors think of as a quite ready made tool.

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Speaker 1: Prosecutors charged the father with four counts of involuntary manslaughter,

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Speaker 1: two counts of felony murder, and eight counts of cruelty

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Speaker 1: to children. The prosecutor said the felony murder charges were

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Speaker 1: connected to the child cruelty charges, But don't murder charges

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Speaker 1: against the father seem like a stretch.

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Speaker 4: I do think you're right that these are charges that

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Speaker 4: see yet another step forward in holding parents accountable, to

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Speaker 4: hold that they're directly responsible. Involuntary manslaughter is typically related

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Speaker 4: to somebody's recklessness or negligence that costs these deaths, but

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Speaker 4: second degree murder is a stronger claim that in some

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Speaker 4: sense you killed somebody even without preditation. As you know,

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Speaker 4: George's murder laws are somewhat idiosyncratic, and so those second

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Speaker 4: degree murder charges look to be attached to the idea

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Speaker 4: that his son killed two children, and thus the cruelty

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Speaker 4: charged to children is a second degree murder. But as

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Speaker 4: a general position, it stands for prosecutors being even more

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Speaker 4: aggressive in saying that this father didn't just recklessly lead

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Speaker 4: to this death, but that his actions in some serious

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Speaker 4: way caused these deaths.

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Speaker 1: For involuntary manslaughter, what has to be proven.

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Speaker 4: So typically involuntary manslaughter is attached to either recklessness or

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Speaker 4: more commonly, negligent. So recklessness is the idea that you

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Speaker 4: knew there was a risk of something terrible happening, a

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Speaker 4: substantial and unjustified risk, and you ignored it, and that

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Speaker 4: often grounds manslaughter in some states that can be an

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Speaker 4: involuntary manslaughter. Negligence is the idea that you should have

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Speaker 4: known that there was something that substantial or unjustified risk,

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Speaker 4: and typically that's what grounds involuntary manslaughter.

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Speaker 1: The May of twenty twenty three, the father and son

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Speaker 1: were interviewed in connection with threats to carry out a

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Speaker 1: school shooting, but authorities didn't arrest the teenager then because

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Speaker 1: they couldn't connect him to this online account, and at

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Speaker 1: some point after that interaction, Gray bought his son an

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Speaker 1: AR fifteen style rifle. Do you think that that's going

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Speaker 1: to be the main thrust of the prosecution, You know,

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Speaker 1: you were warned in this conversation.

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Speaker 4: Yeah, it sounds like, you know, much like the cases

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Speaker 4: we've seen that came before. It's these sort of horrible

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Speaker 4: and gut wrenching facts, the fact that give you a

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Speaker 4: feeling as though a parent not only ignored a child

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Speaker 4: who was crying out from mental health help, not only

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Speaker 4: ignored a child who is fascinated with violence and school

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Speaker 4: shootings in particular, but instead of steering this child away

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Speaker 4: from these kinds of things or securing your weapons, you

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Speaker 4: have parents in both cases, but in particular in this

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Speaker 4: great case, who not only metaphorical but quite literally put

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Speaker 4: the gun in the child's hands, goes and buys them

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Speaker 4: the weapon and arms them. And it's those kind of

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Speaker 4: gregious facts that lead prosecutors to eventually seek direct responsibility. Now,

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Speaker 4: I'll say, in many parts of the country, one of

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Speaker 4: the reasons we really care about trying people in front

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Speaker 4: of jurys is that different communities will have very different

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Speaker 4: relationships to these moments. So there are just lots of

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Speaker 4: communities where a father buying a gun and taking their

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Speaker 4: son hunting seems like a perfectly ordinary part of the

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Speaker 4: communal experience, and in other communities this is close to unthinkable.

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Speaker 4: And so I don't think the facts are without anything

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Speaker 4: for a defense lawyer to point out. But when you

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Speaker 4: have a child who's so troubled, who's so fascinated with violence,

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Speaker 4: it's not surprising that we all are outraged when a father,

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Speaker 4: instead of making sure guns are away, arms the child

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Speaker 4: with essentially a rifle that's made for war.

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Speaker 1: And during that interaction with authorities, the father, Colin Gray,

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Speaker 1: told the investigators that he was teaching his son about

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Speaker 1: firearms and safety and how to hunt, and that if

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Speaker 1: he found out that his son was the one involved

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Speaker 1: in that online threat, he would basely safeguard the guns.

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Speaker 1: Is that something the defense might point to, especially in

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Speaker 1: a state like Georgia where there's a lot of hunting.

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Speaker 4: No, absolutely, Look, I mean I teach cases where courts

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Speaker 4: come to very different decisions because they're very different communal

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Speaker 4: norms on what counts as negligence with a gun. You know,

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Speaker 4: one of the cases is a Georgia case where the

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Speaker 4: judge says Georgia, we have a long and proud history

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Speaker 4: of hunting. You know, I grew up in a community

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Speaker 4: where there are very different feelings about guns. But you know,

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Speaker 4: with some families for whom one of the proud moments

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Speaker 4: was when the children went on the first hunting experience

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Speaker 4: with dad. So different communities are going to feel differently.

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Speaker 4: You know, the dad tweeted out something like it was

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Speaker 4: one of the happiest moments or proudest moments when his

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Speaker 4: son finally shot a deer. That being said, when you

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Speaker 4: know that your son is this troubled or this fascinated

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Speaker 4: with violence. You know, every parent knows when a child says, well,

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Speaker 4: I didn't do it. It's one thing for prosecutors to

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Speaker 4: not be in a position to say I can prove

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Speaker 4: something beyond a reasonable doubt. It's quite another thing for

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Speaker 4: a parent to just take at face value a child

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Speaker 4: saying that it wasn't me when we have reason to worry.

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Speaker 4: It can lead to this kind of utterly tragic result.

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Speaker 1: In the Crumbly case, there was a lot of evidence

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Speaker 1: that the parents ignored their son's deteriorating mental health. In

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Speaker 1: the case of Colt Gray, there also seems to have

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Speaker 1: been contact between the family and the school about his

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Speaker 1: mental health, but the facts are very unclear at this point.

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Speaker 1: Doesn't it get tricky when a case involves a parent's

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Speaker 1: knowledge of their child's mental health struggles and how they

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Speaker 1: address that.

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Speaker 4: Yeah, I mean, look, one of the things that's hard

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Speaker 4: about these cases is though this particular case is so

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Speaker 4: devastating in its result, we all feel it's obvious what

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Speaker 4: should have happened. It's also true that, you know, lots

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Speaker 4: of kids go through lots of troubled periods, and many

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Speaker 4: parents try their best, and I struggle with how to

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Speaker 4: answer this myself. Look, even among trained psychiatrists, they will

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Speaker 4: tell you that it's very hard to predict when a

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Speaker 4: patient is actually going to resort to violence, when there's

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Speaker 4: a gap between fixation, fascination, mental health issues, and actual action.

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Speaker 4: And so I think there are a lot of parents

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Speaker 4: out there who are going to worry that they'll be

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Speaker 4: held responsible for what their troubled child does. That being said,

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Speaker 4: you know, part of what drives these cases is that

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Speaker 4: there are particularly egregious facts. So, for example, when this

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Speaker 4: mother took him in seeking mental health help, apparently, and

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Speaker 4: we're all finding out the facts but her notes said

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Speaker 4: something like he should have been in therapy for months now.

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Speaker 4: He deeply needs help. And so it's those facts on

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Speaker 4: the ground that parents themselves did see or could have

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Speaker 4: seen this coming. Indeed, the latest reporting shows that when

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Speaker 4: he texted her, she immediately called the school if she

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Speaker 4: was afraid that he was going to resort to violence.

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Speaker 4: So it is absolutely true that parents worry that they

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Speaker 4: can't always see the future, but in some cases when

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Speaker 4: they did, it's going to be much harder to deny

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Speaker 4: the prosecution's indictment that you could have prevented this.

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Speaker 1: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 1: this conversation with University of Michigan Law School professor Eko Yanka.

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Speaker 1: We'll talk about new information at the mother of fourteen

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Speaker 1: year old Colt Gray called the Georgia High School about

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Speaker 1: thirty minutes before the shooting to warn the staff of

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Speaker 1: an extreme emergency involving her son. I'm June Grosso and

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Speaker 1: you're listening to Bloomberg for the second time a parent

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Speaker 1: is being prosecuted for a school shooting by his child.

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Speaker 1: The shooting at Georgia's Appalachi High School last week is

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Speaker 1: the tw twenty third school shooting this year and the deadliest.

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Speaker 1: Two students and two teachers were killed and nine others

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Speaker 1: were injured. Fourteen year old Colt Gray has been charged

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Speaker 1: with four counts of felony murder, and his father, Colin Gray,

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Speaker 1: has been charged with four counts of involuntary manslaughter, two

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Speaker 1: counts of second degree felony murder, and eight counts of

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Speaker 1: cruelty to children. I've been talking to Echo Yanka, a

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Speaker 1: professor at the University of Michigan Law School. You followed

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Speaker 1: the Crumbly case in Michigan where both parents were found

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Speaker 1: guilty of four counts of involuntary manslaughter. Did the parents

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Speaker 1: have more warning signs about their son in that case?

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Speaker 4: That's one of the things we're all waiting to find out.

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Speaker 4: And you know, you mentioned earlier that this father was

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Speaker 4: arrested quite quickly, So I think one of the things

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Speaker 4: that we're going to see developed at trial is not

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Speaker 4: only what was the reported incident beforehand where he posted

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Speaker 4: about school shootings, how much was he fascinated with school shooting,

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Speaker 4: how much the parents have reason to know about his

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Speaker 4: fixation with violence, and frankly, what kinds of things did

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Speaker 4: they discover in their investigation or in their interview with

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Speaker 4: him that would lead to such quick charges. And so

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Speaker 4: you know, alongside the rest of the country, I'll be

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Speaker 4: waiting to find out exactly who knew, what went, what

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Speaker 4: did he say?

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Speaker 1: And now you mentioned the mother called the school to

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Speaker 1: warn them about her son. Apparently the conversation was ten

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Speaker 1: minutes in, about a half hour before the shooting. I'm

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Speaker 1: wondering if a possible defense will be well, the school

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Speaker 1: didn't act quickly enough.

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Speaker 4: Yeah, I don't think that'll be much of a defense

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Speaker 4: for him at his criminal trial, especially because he's not

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Speaker 4: the new acted. From what the reporting is now, it

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Speaker 4: seems like a horrible set of missed opportunities. A school

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Speaker 4: counselor went to see if he was there, tacon him

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Speaker 4: for another child with a similar name, and took a

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Speaker 4: backpack of the wrong child. So it's all these sort

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Speaker 4: of horrible miss moments after miss moments that lead to

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Speaker 4: the death of four people. I do think the real

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Speaker 4: question will be whether or not those moments play into

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Speaker 4: further civil liability for the school. As you know, in

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Speaker 4: the Oxford shooting in Michigan, the Oxford school system was

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Speaker 4: eventually not found liable for any negligence on their part criminally,

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Speaker 4: but that doesn't settle the question whether or not those

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Speaker 4: individual parents and injured people will think that the school

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Speaker 4: missed its own duties to protect them.

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Speaker 1: What I thought that the prosecutor declined to say if

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Speaker 1: the father had any gunlocks or other mechanisms to secure

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Speaker 1: the firearms inside the home. But Georgia has no law

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Speaker 1: requiring safe storage.

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Speaker 4: Look, I would say one of the things about these

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Speaker 4: cases is that all of us who are either criminal

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Speaker 4: law practitioners or teachers, are fascinated with how the law

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Speaker 4: is going respond, how criminal law is going to respond

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Speaker 4: to this question of whether or not you're liable for

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Speaker 4: somebody that else's actions. But for those of us when

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Speaker 4: we're thinking of ourselves as citizens and parents, the question

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Speaker 4: should be much less abstract. The question is not whether

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Speaker 4: or not this particular father is liable. I care about

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Speaker 4: that insofar as I care about the way criminal law works.

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Speaker 4: But as a parent, if we care about protecting our children,

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Speaker 4: it's clear to me that what needs to happen is

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Speaker 4: the way we treat our society that's saturated in guns.

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Speaker 4: What do we think about gun regulation, what do we

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Speaker 4: think about red flag laws and what do we think

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Speaker 4: about safe storage laws? In Michigan, it was only after

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Speaker 4: the Crumbley shooting that we passed the first set of

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Speaker 4: gun regulations, including safe storage laws, in or decades. So

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Speaker 4: his heartbreaking is this particular cases, and whatever one thinks

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Speaker 4: about what should happen to this father, It seems to

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Speaker 4: me a kind of hopeless mission to think that we're

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Speaker 4: going to solve this never ending social problem with school

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Speaker 4: shootings by prosecuting one parent at a time.

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Speaker 1: Critics say it's a misguided effort to make parents escapegoats

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Speaker 1: while lawmakers fail to pass legislation to reduce gun violence.

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Speaker 1: The lawyer representing Jennifer Crumbly on her appeal said it's

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Speaker 1: shifting blame onto parents in the absence of states passing legislation.

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Speaker 4: I think that's right. I mean, look, I think in

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Speaker 4: some sense these are not the exact same question. I

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Speaker 4: am cautious about the way in which we treat every

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Speaker 4: social problem as though as a criminal law problem. But

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Speaker 4: I don't pretend to have an easy answer about whether

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Speaker 4: or not parents who are so grossly negligent or so

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Speaker 4: close should be held liable. You know, it goes against

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Speaker 4: a long standing criminal law principle that you're not responsible,

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Speaker 4: barring of very few exceptions for accomplished liability or felony murder.

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Speaker 4: That the principle that I taught just last week week

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Speaker 4: to my criminal law students in their first week is

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Speaker 4: that you're not responsible for the actions of others. But yes,

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Speaker 4: extraordinary cases are going to push that intuition. The real

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Speaker 4: point is exactly what you said. Setting that aside whether

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Speaker 4: or not you think this parent should be culpable, it's

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Speaker 4: obvious to me this is not how we're going to

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Speaker 4: solve the problem. And if legislators are going to think

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Speaker 4: that we have our anger seated by essentially, you know,

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Speaker 4: blaming one parent at a time, or bringing the hammer

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Speaker 4: down on one parent at time, locking up a parent

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Speaker 4: here a parent there, while forever telling us that we'll

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Speaker 4: think about gun regulation in some other time, then we're

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Speaker 4: going to keep visiting these tragedies.

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Speaker 1: Many people thought that the Michigan case would be an

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Speaker 1: example and would make parents more aware, but apparently not.

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Speaker 4: I mean, the criminal law will never solve all our problems.

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Speaker 4: And again I tend to think we overly use the

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Speaker 4: criminal law, but it's not that it has no role.

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Speaker 4: Criminal law can have a sanctioning effect, it can have

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Speaker 4: some de terrems effect. Maybe somewhere there are some parents

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Speaker 4: who are more careful than they were beforehand. But if

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Speaker 4: we want to solve the underlying problem, we should do

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Speaker 4: the best we can with our regulatory law. If we

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Speaker 4: want people to lock up their guns, what we should

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Speaker 4: do is simply require them to lock up their guns.

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Speaker 4: Even if that's not a perfect solution, it truly beats

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Speaker 4: trying to prosecute one parent at a time.

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Speaker 1: Now, I want to churn to the sun for a moment.

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Speaker 1: Because he's fourteen, he's being charged as an adult. I

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Speaker 1: often wonder what's the point of the juvenile justice system,

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Speaker 1: and teenagers are almost always charged as adults when there's

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Speaker 1: a murder or a similar really serious crime.

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Speaker 4: Yeah, you're absolutely right. We have long decided that we

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Speaker 4: don't truly believe in the juvenile part of our juvenile

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Speaker 4: justice system. That is to say, our essential nationalide stand

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Speaker 4: is that you'll be trying is a juvenal just so

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Speaker 4: long as the crime isn't important enough that we want

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Speaker 4: to try you as an adult, which is a weird

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Speaker 4: way to relate to the juvenile justice system. If the

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Speaker 4: point is when you're young there is a certain way

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Speaker 4: in which you're not fully responsible, then that's true for

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Speaker 4: serious crimes as well. But overall, it is a symptom

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Speaker 4: of that which we've been discussing. It's a symptom of

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Speaker 4: us constantly aiming our criminal law at every social problem.

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Speaker 1: And being charged as an adult rather than a juvenile.

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Speaker 1: Is a game changer, isn't it. It changes everything from

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Speaker 1: the process to the prison time.

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Speaker 4: It's just a whole different ballgame, right. It means potential

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Speaker 4: sentence after sentence of sentence. In this case, as the

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Speaker 4: judge reminded him, he's not eligible because he's a juvenile

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Speaker 4: for the death penalty, but almost everything else is on

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Speaker 4: the table, almost everything else. Look, I mean, what he

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Speaker 4: did was just devastating. But you know, when I see

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Speaker 4: fourteen year old playing, I just think there's so many

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Speaker 4: things they do that are so obviously irrational. You know,

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Speaker 4: there's a real question do we really think there are

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Speaker 4: children and thus not fully responsible, or do we just

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Speaker 4: mean something like songs we're not sufficiently angry, we'll pretend

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Speaker 4: you're a kid. We throw it out of the window

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Speaker 4: when it's angry, making enough.

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Speaker 1: Yeah, the prosecutors here decided right away that they were

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Speaker 1: going to try him as an adult, perhaps fearing the

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Speaker 1: backlash if he's convicted and not sentenced to a long

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Speaker 1: time in prison. The prosecutor also said that he wasn't

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Speaker 1: trying to send out a message by charging the father.

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Speaker 1: I would hope that prosecutors would use every tool in

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Speaker 1: their arsenal to hold people accountable for crimes that they commit.

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Speaker 1: Is that believable that he's not trying to send out

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Speaker 1: a message.

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Speaker 4: The one way in which I'm sympathetic is prosecutors are

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Speaker 4: people too, and they live in these communities, and they

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Speaker 4: are heartbroken and devastated when these things happen as well,

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Speaker 4: And so I believe that when a prosecutor looks at

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Speaker 4: something like this, they are, like all of us, outraged.

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Speaker 4: Think I want to hold some of the accountable. But no. Ultimately,

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Speaker 4: of course, part of what prosecutors do is use the

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Speaker 4: law as a tool for sending a message to what

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Speaker 4: they believe is unacceptable behavior, what they believe their community

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Speaker 4: wants to hold as a line of accountability, and even

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Speaker 4: what they think matters for their own use of the

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Speaker 4: law and even their own ambitions for the law and

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Speaker 4: their own careers. So I don't think he's necessarily cynical

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Speaker 4: or lying, but it's too much to believe that a

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Speaker 4: prosecutor wouldn't think that this kind of immediately nationwide visible

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Speaker 4: case wouldn't send a message.

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Speaker 1: Any final thoughts echo.

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Speaker 4: You know one last thing, And I thought about this

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Speaker 4: a lot during the Crumbley case. Again, I understand why

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Speaker 4: prosecutor would want to hold parents like this accountable. If

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Speaker 4: I'm perfectly honest, I'm a parent. I don't know what

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Speaker 4: I would do if I were a prosecutor in this position,

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Speaker 4: whether or not I would also want to press charges.

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Speaker 4: But I do think we shouldn't be so cavalier about

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Speaker 4: what it means to hold parents accountable for the behavior

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Speaker 4: of their children. And in particular, as we saw with

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Speaker 4: one precedent affecting a sister state, what will mean when

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Speaker 4: the next case is not as dramatic or not as

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Speaker 4: exceptional and not as egregious, and prosecutors still use these

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Speaker 4: tools to prosecute a case. And what people should really

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Speaker 4: realize is that often when prosecutors do this, it's not

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Speaker 4: nearly so much in the public eye. The overwhelming majority

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Speaker 4: of our cas is something like ninety five percent are

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Speaker 4: leap bargains, and those cases never attract the kind of

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Speaker 4: attention that these sensational cases do. And so every time

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Speaker 4: we empower prosecutors to threaten people with further criminal liability,

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Speaker 4: we're also giving them the power to exact a huge

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Speaker 4: number of guilty pleas that will never see a jury

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Speaker 4: or a reporter.

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Speaker 1: Thank you much for being on the show. That's Professor

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Speaker 1: Eko Yanka of the University of Michigan Law School coming

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Speaker 1: up next. Conservative Supreme Court justices are less likely to

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Speaker 1: explain their recusals. I'm June Grosso and you're listening to Bloomberg.

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Speaker 1: There's been a lot of scrutiny on the Supreme Court

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Speaker 1: justice's recusing themselves, or rather failing to recuse themselves. Last term,

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Speaker 1: Justice's Clarence Thomas and Samuel Alito were criticized for failing

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Speaker 1: to recuse themselves from the controversial presidential immunity case despite

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Speaker 1: calls to recuse because of Thomas's wife's support for the

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Speaker 1: push to overturn the election results and because flags flown

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Speaker 1: at Alito's homes allegedly suggested sympathy for those efforts. And

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Speaker 1: now a review by Bloomberg Law, shows that the conservative justices,

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Speaker 1: unlike their liberal colleagues, routinely declined to explain why they

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Speaker 1: recused themselves from cases joining me is Bloomberg Law. Supreme

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Speaker 1: Court reporter Kimberly Strawbridge Robinson, who's looked at the numbers. So,

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Speaker 1: Kimberly tell us about the difference between the conservative justices

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Speaker 1: and the liberal justices when it comes to explaining their accusals.

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Speaker 5: Yeah, So, I think it really goes back to a

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Speaker 5: lot of the ethics scandals that have been in the

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Speaker 5: news a lot, and sort of the pressure that the

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Speaker 5: public had on the Supreme Court to issue a binding

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Speaker 5: code of conduct. I think people were surprised to learn

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Speaker 5: that the Supreme Court was not subject to sort of

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Speaker 5: binding rules like other federal judges. And so last year,

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Speaker 5: in November of twenty twenty three, the justices, you know,

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Speaker 5: they issued a code of conduct, but they were clear

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Speaker 5: that these are rules that are not new, that they're

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Speaker 5: ones that they've been following. But since then we've been seeing,

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Speaker 5: you know, this distinction between liberal justices and conservative justices,

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Speaker 5: where presumably everybody's following the rules, but the liberal justices

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Speaker 5: will explain the reasons why they're recusing from cases, whereas

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Speaker 5: none of the conservative justices have and so, you know,

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Speaker 5: these are really short explanations and maybe a sentence that

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Speaker 5: just sort of says something general like previous work experience.

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Speaker 5: But you know, it is really a stark line between

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Speaker 5: the democratically appointed justices and the revov caan appoint to justices.

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Speaker 1: Once the Supreme Court has taken a case and it's

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Speaker 1: going to oral argument, you don't often see a recusal.

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Speaker 1: Then when do you usually see the most recusals?

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Speaker 5: You're right, and so there's only one case for next

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Speaker 5: term so far where there's a justice recuse. Those are

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Speaker 5: few and far between because of the problems of you know,

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Speaker 5: possibly having an evenly split court so that the court

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Speaker 5: can't actually decide the question that it agreed to decide.

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Speaker 5: But most of the refusals, the vast majority of them,

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Speaker 5: come whenever the parties ask the justices to hear the case.

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Speaker 5: Typically when they deny those requests. They have thousands every year,

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Speaker 5: they deny most of them, and that's where we see

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Speaker 5: the overwhelming when joy of recusals come in.

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Speaker 1: Are most of the recusals because of prior work experience

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Speaker 1: of the justices for example, well, Elena Kagan worked on

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Speaker 1: the case when she was a solicitor general, so.

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Speaker 5: Most of them are for their previous work experience. And

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Speaker 5: I think you mentioned Justice Kagan. It's really remarkable that,

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Speaker 5: you know, she's been on the court so long now

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Speaker 5: and she's still having recuses on cases where she was

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Speaker 5: the solicitor general, just because you know, it's almost every

437
00:25:28,000 --> 00:25:31,840
Speaker 5: litigation that was involving the federal government that she sort

438
00:25:31,880 --> 00:25:34,960
Speaker 5: of needs to sit it out. So you know, she's

439
00:25:35,040 --> 00:25:36,760
Speaker 5: sort of an outlier there. But a lot of the

440
00:25:36,800 --> 00:25:40,480
Speaker 5: other justices who were you know, appellate court judges, you know,

441
00:25:40,560 --> 00:25:43,400
Speaker 5: we see them from time to time having to recuse,

442
00:25:43,480 --> 00:25:46,359
Speaker 5: and then you know it comes less so as they

443
00:25:46,400 --> 00:25:49,240
Speaker 5: sit on the bench for longer and longer, and so

444
00:25:49,359 --> 00:25:52,600
Speaker 5: that's you know a majority of the recusals, but particularly

445
00:25:52,640 --> 00:25:55,400
Speaker 5: when it comes to Justice Alito, he has a lot

446
00:25:55,440 --> 00:25:58,480
Speaker 5: of recusals because he's one of the only justices to

447
00:25:58,600 --> 00:26:01,960
Speaker 5: own individual stock. So we'll see him, you know, occasionally

448
00:26:02,000 --> 00:26:05,520
Speaker 5: recused because he owns stock, and interestingly also see him

449
00:26:05,520 --> 00:26:08,600
Speaker 5: when he's recused if the justices do decide to take

450
00:26:08,640 --> 00:26:11,040
Speaker 5: us a case, he sometimes sells the stock so that

451
00:26:11,080 --> 00:26:12,800
Speaker 5: he can then come back on the case.

452
00:26:13,560 --> 00:26:17,680
Speaker 1: Reporters and court insiders can sort of figure out most

453
00:26:17,720 --> 00:26:21,840
Speaker 1: of the time why a justice is recusing, right, yeah, I.

454
00:26:21,840 --> 00:26:23,560
Speaker 5: Mean with a little digging. You know, some of the

455
00:26:23,640 --> 00:26:26,760
Speaker 5: commentary that the justices have given about refusals is that,

456
00:26:27,040 --> 00:26:30,320
Speaker 5: you know, it's obvious why a justice is recusing, and

457
00:26:30,400 --> 00:26:33,040
Speaker 5: I guess to them, and you know, the insiders who

458
00:26:33,119 --> 00:26:35,760
Speaker 5: are familiar with all their stockholdings and you know where

459
00:26:35,840 --> 00:26:38,600
Speaker 5: they sit on courts previous to the Supreme Court, it

460
00:26:38,640 --> 00:26:42,280
Speaker 5: can be somewhat obvious, but it does oftentimes take some digging.

461
00:26:42,640 --> 00:26:45,680
Speaker 5: Particularly you know, there was a case last term where

462
00:26:45,720 --> 00:26:49,520
Speaker 5: just As Thomas recused himself and you know, he didn't

463
00:26:49,520 --> 00:26:52,399
Speaker 5: provide an explanation, but it was involving one of his

464
00:26:52,520 --> 00:26:55,240
Speaker 5: former clerks, and so you know, that's something that an

465
00:26:55,280 --> 00:26:58,399
Speaker 5: insider might find obvious. But you know, any member of

466
00:26:58,440 --> 00:27:01,359
Speaker 5: the public who doesn't watch these things as carefully wouldn't

467
00:27:01,400 --> 00:27:04,920
Speaker 5: really know. So that's where the explanations come in Handy the.

468
00:27:04,920 --> 00:27:09,800
Speaker 1: Conflict with a former job or stock it's pretty obvious,

469
00:27:09,880 --> 00:27:13,600
Speaker 1: but there's this catch all that requires a justice to

470
00:27:13,680 --> 00:27:18,159
Speaker 1: disqualify if their impartiality might reasonably be questioned.

471
00:27:18,720 --> 00:27:21,840
Speaker 5: Yeah, and this is where it gets sticky, and I

472
00:27:21,840 --> 00:27:24,919
Speaker 5: don't think it's really unique to judges or lawyers. But

473
00:27:25,040 --> 00:27:27,840
Speaker 5: whenever we're asked to sort of, you know, gauge how

474
00:27:27,880 --> 00:27:30,560
Speaker 5: biased we might be, we have a pretty bad measure

475
00:27:30,640 --> 00:27:33,840
Speaker 5: for that. And the rules are not very clear, and

476
00:27:34,119 --> 00:27:37,199
Speaker 5: it's up to each individual justice to decide, you know,

477
00:27:37,240 --> 00:27:40,680
Speaker 5: whether this hypothetical reasonable person who knows all of these

478
00:27:40,800 --> 00:27:45,080
Speaker 5: facts might think that they are biased and should recuse themselves.

479
00:27:45,200 --> 00:27:47,359
Speaker 5: But it is really where the tricky ones come up,

480
00:27:47,400 --> 00:27:50,280
Speaker 5: and I think where some of these explanations would be

481
00:27:50,359 --> 00:27:51,360
Speaker 5: most helpful.

482
00:27:51,920 --> 00:27:55,439
Speaker 1: Also when they refuse to recuse themselves. You don't know

483
00:27:55,480 --> 00:27:56,080
Speaker 1: why either.

484
00:27:56,720 --> 00:27:59,000
Speaker 5: That's right, And actually people I talk to, you know,

485
00:27:59,040 --> 00:28:01,480
Speaker 5: some watchdog group said that it actually might be more

486
00:28:01,600 --> 00:28:05,720
Speaker 5: useful or more public interests for justices to explain when

487
00:28:05,720 --> 00:28:08,760
Speaker 5: they decide not to recuse. And we have seen, you know,

488
00:28:08,840 --> 00:28:12,359
Speaker 5: a few times, very few and far between, over the

489
00:28:12,400 --> 00:28:16,439
Speaker 5: decades where justice has explained their recusal, but typically that

490
00:28:16,680 --> 00:28:20,400
Speaker 5: or their reasons for not refusing Justice. Scalia famously did

491
00:28:20,400 --> 00:28:23,600
Speaker 5: so in a case involving than Vice President tick Cheney.

492
00:28:23,960 --> 00:28:26,679
Speaker 5: But again those are very rare, and you know, some

493
00:28:26,720 --> 00:28:28,440
Speaker 5: people that I talked to said that there are some

494
00:28:28,600 --> 00:28:32,000
Speaker 5: danger with providing really robust explanations like that.

495
00:28:32,800 --> 00:28:36,239
Speaker 1: Will you explain that, because in the statement with the

496
00:28:36,280 --> 00:28:41,120
Speaker 1: Ethics Code about recusals, it said explanations can be ill

497
00:28:41,160 --> 00:28:46,440
Speaker 1: advised in certain instances. Examples include circumstances that might encourage

498
00:28:46,440 --> 00:28:50,880
Speaker 1: strategic behavior by lawyers who may seek to prompt recusals

499
00:28:50,920 --> 00:28:52,160
Speaker 1: in future cases.

500
00:28:53,240 --> 00:28:56,840
Speaker 5: Sure, well, I think you know, from speaking to ethics experts,

501
00:28:56,880 --> 00:28:58,800
Speaker 5: I think what they're trying to get out there is

502
00:28:58,800 --> 00:29:02,920
Speaker 5: this idea that if one justice refuses because they have

503
00:29:03,000 --> 00:29:07,000
Speaker 5: this particular relationship with someone, then it sort of provides

504
00:29:07,000 --> 00:29:09,520
Speaker 5: a precedence for all the other justices, whether or not

505
00:29:09,560 --> 00:29:13,200
Speaker 5: they agree that recusal is required there, and they're sort

506
00:29:13,200 --> 00:29:16,440
Speaker 5: of held to that standard, even though refusal decisions are

507
00:29:16,520 --> 00:29:19,840
Speaker 5: supposed to be made by the individual justices themselves. And

508
00:29:19,880 --> 00:29:22,440
Speaker 5: so there's sort of a danger with setting a precedent

509
00:29:22,520 --> 00:29:26,120
Speaker 5: that not everybody agrees with, and you know, the chance

510
00:29:26,200 --> 00:29:30,240
Speaker 5: that a lawyer who's acting zealously for their client will

511
00:29:30,240 --> 00:29:33,520
Speaker 5: seek to use that refusal decisions to sort of get

512
00:29:33,560 --> 00:29:36,480
Speaker 5: a leg up in the case to get a particular justice,

513
00:29:36,480 --> 00:29:39,120
Speaker 5: whether it be conservative or libal kicked off the case

514
00:29:39,160 --> 00:29:41,520
Speaker 5: to give their clients a better shot at a good outcome.

515
00:29:41,920 --> 00:29:43,400
Speaker 1: Are recusals increasing?

516
00:29:43,760 --> 00:29:45,880
Speaker 5: You know, we haven't seen a big difference in the

517
00:29:46,000 --> 00:29:49,000
Speaker 5: number of recusals. I mean, again, you know, prior work

518
00:29:49,080 --> 00:29:51,920
Speaker 5: is going to provide a big bulk of them. There's

519
00:29:52,000 --> 00:29:54,920
Speaker 5: really very little that the justices can do. The one

520
00:29:54,920 --> 00:29:56,880
Speaker 5: where there's a potential for it to go down would

521
00:29:56,920 --> 00:30:00,000
Speaker 5: be in stocks. But again, most of the justices don't

522
00:30:00,200 --> 00:30:04,800
Speaker 5: individual stocks. It's really mostly Justice Alito. But you know, overall,

523
00:30:05,040 --> 00:30:07,960
Speaker 5: the numbers haven't really been affected. It's still really early

524
00:30:08,080 --> 00:30:10,920
Speaker 5: since the Supreme Court adopted it's code of conduct. But

525
00:30:11,080 --> 00:30:13,080
Speaker 5: you know, people I talked to said that's not surprising

526
00:30:13,440 --> 00:30:16,240
Speaker 5: because the Justice is emphasized that they've always been doing this.

527
00:30:16,400 --> 00:30:19,400
Speaker 5: They've always been following these rules for recusals. They just

528
00:30:19,440 --> 00:30:21,880
Speaker 5: put it down on paper so that people knew that

529
00:30:21,920 --> 00:30:24,400
Speaker 5: they were bound by something and not sort of going

530
00:30:24,400 --> 00:30:26,840
Speaker 5: out there willing lilly and making these decisions without any

531
00:30:26,880 --> 00:30:27,560
Speaker 5: sort of standard.

532
00:30:27,800 --> 00:30:31,080
Speaker 1: Do you know which justice has recused the least and

533
00:30:31,120 --> 00:30:32,400
Speaker 1: which the most.

534
00:30:32,440 --> 00:30:35,120
Speaker 5: Well, you know, Justice Thomas seems to be the one

535
00:30:35,120 --> 00:30:37,800
Speaker 5: who has recused the least. I think that makes a

536
00:30:37,840 --> 00:30:39,560
Speaker 5: lot of sense though, based on some of the stuff

537
00:30:39,560 --> 00:30:42,400
Speaker 5: we're talking about here. He doesn't own any private stock

538
00:30:42,440 --> 00:30:45,400
Speaker 5: that would require him to just qualify himself. And it's

539
00:30:45,440 --> 00:30:47,560
Speaker 5: been a really long time since you was a judge,

540
00:30:47,600 --> 00:30:49,720
Speaker 5: so a lot of those cases just aren't in the

541
00:30:49,760 --> 00:30:53,800
Speaker 5: federal system anymore. So Justice Thomas really does recuse a

542
00:30:53,840 --> 00:30:57,320
Speaker 5: lot less frequently than some of the other justices, but

543
00:30:57,440 --> 00:31:00,280
Speaker 5: also Chief Justice Roberts doesn't refuse a lot of either.

544
00:31:00,640 --> 00:31:02,360
Speaker 5: You know, a lot of his cases seem to work

545
00:31:02,400 --> 00:31:04,120
Speaker 5: their way through the course, and really where we see

546
00:31:04,200 --> 00:31:06,720
Speaker 5: him getting recused to moost is people will name him

547
00:31:06,880 --> 00:31:09,680
Speaker 5: as a party in the case, and then obviously you

548
00:31:09,720 --> 00:31:10,640
Speaker 5: didn't hear that case.

549
00:31:10,760 --> 00:31:13,200
Speaker 1: And what about the justice who have the most recusals.

550
00:31:13,560 --> 00:31:15,760
Speaker 5: You know, we talked a little bit about Justice Kayane.

551
00:31:15,880 --> 00:31:18,560
Speaker 5: She has a lot because of sort of the realities

552
00:31:18,600 --> 00:31:21,680
Speaker 5: of her job that she touched almost every case that

553
00:31:21,760 --> 00:31:24,120
Speaker 5: ran through the federal system for time that she was

554
00:31:24,120 --> 00:31:27,000
Speaker 5: a Solicitor General, and those cases last a long time.

555
00:31:27,400 --> 00:31:29,560
Speaker 5: And then what we really see it's sort of a

556
00:31:29,600 --> 00:31:33,160
Speaker 5: bit as I mentioned before, where it'll sort of peter

557
00:31:33,240 --> 00:31:35,280
Speaker 5: out the longer that the justices are on the court.

558
00:31:35,360 --> 00:31:37,240
Speaker 5: So right now, you know, you have a lot of

559
00:31:37,320 --> 00:31:40,480
Speaker 5: refusals from the newer justices just Jackson and Barrett and

560
00:31:40,520 --> 00:31:43,320
Speaker 5: Cavanaugh and Gorsic, and not as many from the ones

561
00:31:43,320 --> 00:31:45,400
Speaker 5: who have been there a long time. But over time

562
00:31:45,720 --> 00:31:47,720
Speaker 5: those will also sort of tend to peter out.

563
00:31:48,080 --> 00:31:53,720
Speaker 1: Chief Justice Roberts when the Alito flag Flat boys going on, said,

564
00:31:53,760 --> 00:31:57,400
Speaker 1: you know, it's up to the individual justices to recuse themselves.

565
00:31:57,400 --> 00:31:59,920
Speaker 1: That's a decision they make, but you and your store

566
00:32:00,000 --> 00:32:03,080
Speaker 1: I already said, there are some state supreme courts that

567
00:32:03,160 --> 00:32:06,880
Speaker 1: have different mechanisms for recusal.

568
00:32:07,480 --> 00:32:11,080
Speaker 5: Right, And not only different mechanisms for you know, all

569
00:32:11,120 --> 00:32:13,200
Speaker 5: of their judges, but also for the judges that sit

570
00:32:13,320 --> 00:32:16,000
Speaker 5: on the highest courts in their states so are sort

571
00:32:16,040 --> 00:32:20,080
Speaker 5: of similarly situated to US Supreme Court justices. And there

572
00:32:20,120 --> 00:32:22,479
Speaker 5: are a handful of states that do different things. In

573
00:32:22,560 --> 00:32:24,800
Speaker 5: Texas was one of the ones that was brought up

574
00:32:24,800 --> 00:32:27,640
Speaker 5: a lot to me, you can refer the decision to

575
00:32:27,680 --> 00:32:29,960
Speaker 5: the full court so that you kind of get everybody

576
00:32:29,960 --> 00:32:32,520
Speaker 5: else's perspective on it. And one thing that I think

577
00:32:32,720 --> 00:32:35,840
Speaker 5: Watchdrug groups were saying was that, you know, maybe that

578
00:32:35,960 --> 00:32:38,280
Speaker 5: isn't a good fit for the US Supreme Court, but

579
00:32:38,320 --> 00:32:40,720
Speaker 5: it's not something that they should just dismiss out of hand.

580
00:32:40,720 --> 00:32:43,040
Speaker 5: They should at least look into it and see what

581
00:32:43,520 --> 00:32:46,200
Speaker 5: the dangers are, see what the experience has been like

582
00:32:46,240 --> 00:32:47,240
Speaker 5: in those other states.

583
00:32:47,560 --> 00:32:52,280
Speaker 1: The legislation and the Democrats who want binding ethics codes.

584
00:32:52,840 --> 00:32:55,960
Speaker 1: Is it because as far as recusals they want more

585
00:32:56,000 --> 00:32:58,760
Speaker 1: transparency or is there another reason.

586
00:33:00,000 --> 00:33:02,280
Speaker 5: I think it's in large part because of the transparency

587
00:33:02,280 --> 00:33:06,360
Speaker 5: I think, particularly when it comes to things like providing explanations,

588
00:33:06,400 --> 00:33:08,360
Speaker 5: just making it a little bit easier for the public

589
00:33:08,400 --> 00:33:10,440
Speaker 5: to know. But you know, I also think it has

590
00:33:10,480 --> 00:33:12,920
Speaker 5: a lot to do with, you know, sort of bringing

591
00:33:12,920 --> 00:33:15,479
Speaker 5: back public confidence in the court. You know, the Supreme

592
00:33:15,480 --> 00:33:19,560
Speaker 5: Court has had historically low public confidence numbers as of late,

593
00:33:19,680 --> 00:33:21,960
Speaker 5: and you know that's really a big deal for the

594
00:33:21,960 --> 00:33:24,720
Speaker 5: Supreme Court, which you know famously doesn't have a way

595
00:33:24,760 --> 00:33:27,560
Speaker 5: to enforce any of its judgments except through sort of

596
00:33:27,560 --> 00:33:29,280
Speaker 5: the good will of the people. So I think a

597
00:33:29,280 --> 00:33:31,000
Speaker 5: lot of people see it as a good steps to

598
00:33:31,040 --> 00:33:33,560
Speaker 5: sort of getting some more goodwill with the public.

599
00:33:33,880 --> 00:33:35,960
Speaker 1: And it's been quite a few years now that we've

600
00:33:35,960 --> 00:33:39,680
Speaker 1: been saying this year is historically low approval. It just

601
00:33:39,760 --> 00:33:40,680
Speaker 1: keeps going down.

602
00:33:40,880 --> 00:33:44,040
Speaker 5: So we'll see it does and we'll see if the

603
00:33:44,160 --> 00:33:48,320
Speaker 5: adoption of the Code of Conduct does anything to increase

604
00:33:48,360 --> 00:33:51,920
Speaker 5: that public confidence and sort of what the justices decide

605
00:33:51,920 --> 00:33:53,920
Speaker 5: to do themselves that might increase it. There's been a

606
00:33:53,960 --> 00:33:57,640
Speaker 5: number of justices recently, particularly as they're going around promoting

607
00:33:57,640 --> 00:33:59,360
Speaker 5: their books, who have talked about this and who have

608
00:33:59,640 --> 00:34:03,120
Speaker 5: said that they think an enforceable code would be desirable.

609
00:34:03,240 --> 00:34:05,720
Speaker 5: So I guess we'll wait and see what happens next.

610
00:34:06,120 --> 00:34:08,600
Speaker 1: Thanks so much, Kimberly, always a pleasure to have you on.

611
00:34:09,239 --> 00:34:13,960
Speaker 1: That's Bloomberg Law. Supreme Court reporter Kimberly Strawbridge Robinson and

612
00:34:14,000 --> 00:34:16,480
Speaker 1: that's it for this edition of the Bloomberg Law Podcast.

613
00:34:16,840 --> 00:34:19,200
Speaker 1: Remember you can always get the latest legal news by

614
00:34:19,239 --> 00:34:23,080
Speaker 1: subscribing and listening to the show on Apple Podcasts, Spotify,

615
00:34:23,360 --> 00:34:27,200
Speaker 1: and at Bloomberg dot com, slash podcast, Slash Law. I'm

616
00:34:27,280 --> 00:34:29,719
Speaker 1: June Grosso and this is Bloomberg