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Speaker 1: All see in perspective from DC's top names. This is

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Speaker 1: likely to all being litigated out in the various date

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Speaker 1: around the contort. I don't think that a law that

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Speaker 1: was written before the Civil War should be used to

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Speaker 1: dictate these intimate decisions. Bloomberg found on with Joe Matthew

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Speaker 1: on Bloomberg Radio and Joan Grasso sitting in for Joe

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Speaker 1: Matthew today, and we're going to be talking about a

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Speaker 1: setback to Democrats on redistricting, the Supreme Court using its

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Speaker 1: shadow docket to reinstate a racially gerrymandered congressional map in Louisiana.

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Speaker 1: We'll talk to Supreme Court report a Greg's Store about

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Speaker 1: that and find out what's happening at the Court tomorrow,

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Speaker 1: the last day of the term. There's a battle over

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Speaker 1: redistricting playing out across the country. And yesterday the Supreme Court,

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Speaker 1: without any explanation, reinstated a Republican drawn congressional map in

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Speaker 1: Louisiana that a federal judge had said dilutes the power

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Speaker 1: of black voters, just as the Court had done in

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Speaker 1: a similar case is involving an Alabama map in February.

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Speaker 1: Joining me is Greg Store Bloomberg Supreme Court reporter Greg,

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Speaker 1: Before we get to the Louisiana case, some of us

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Speaker 1: foolishly expected that today would be the last decision day

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Speaker 1: for the court. It only issued two decisions, leaving to

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Speaker 1: controversial cases for tomorrow. Any idea why, Well, the Court

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Speaker 1: has a lot on its play tune, and you know

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Speaker 1: they tend to spread things out a little bit. So

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Speaker 1: we'll end up with three opinion days this week and

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Speaker 1: that's not too unusual for the last day of the

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Speaker 1: Supreme Court term. And tomorrow there's going to be a

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Speaker 1: special ceremony, there will be the newest Justice Ktanti Brown

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Speaker 1: Jackson will be sworn in at noon. That's when Justice

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Speaker 1: Stephen briars retirement takes effect. So Greg, tell us about

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Speaker 1: this Louisiana case, which the court dealt with in its

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Speaker 1: shadow docket, meaning that there weren't the usual arguments before

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Speaker 1: the cord or bree thing schedule. Yeah, as you said,

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Speaker 1: it is very similar to an Alabama case they've already

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Speaker 1: dealt with, and they are going to hear arguments in

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Speaker 1: the Alabama case in the fall. And back when when

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Speaker 1: the similar thing happened in Alabama, a lower court said

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Speaker 1: Alabama needs to have a second heavily black district under

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Speaker 1: the Voting Rights Act. Uh. And the Supreme Court blocked

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Speaker 1: that ruling and said in that case that, uh, it's

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Speaker 1: too close to the election and that we we kind

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Speaker 1: of have this rule that's known as the Purcell principle

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Speaker 1: that dictates that as we get close to an election,

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Speaker 1: federal court shouldn't change the election rules. And that's kind

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Speaker 1: of the explanation that the Court gave at the time

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Speaker 1: there Um Louisiana, similar situation. Louisiana is one third black.

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Speaker 1: It has six congressional districts, and under the Republican drawing map,

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Speaker 1: only one of the districts was going to be majority black.

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Speaker 1: And a similar thing Trold Judge said that violates the

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Speaker 1: Voting Rights Act. You need to draw a map with

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Speaker 1: a second majority black district. Supreme Court then intervened and

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Speaker 1: block that and did not give an explanation. As you said,

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Speaker 1: all right, Greg, thanks so much. We're gonna let you

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Speaker 1: go so you can get ready for those two decisions tomorrow,

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Speaker 1: which you're going to be blockbusters, one on the e

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Speaker 1: p A and one on the remain in Mexico policy.

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Speaker 1: Thanks so much, Greg. That's Bloomberg Supreme Court reporter Greg Store.

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Speaker 1: Joining me now is Derek Muller. He's a professor at

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Speaker 1: the University of Iowa Law School who specializes in election law. So, Derek,

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Speaker 1: Louisiana has six members of Congress, but only one of

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Speaker 1: the districts is majority black, even though blacks make up

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Speaker 1: one third of the state's voters. Isn't it theorily obvious

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Speaker 1: that this Republican drawn map dilutes the votes of blacks

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Speaker 1: in that state? Well, I think the Republicans in this

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Speaker 1: case argued, Look, if you look at how the black

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Speaker 1: vote as are dispersed throughout the state, they're more spread

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Speaker 1: out than you might find in other parts of the

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Speaker 1: country where they might be more concentrated. And so one

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Speaker 1: of the things that the challengers pointed out here is

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Speaker 1: to say, look, when you're drawing a map, one of

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Speaker 1: the things you require is compactness. And if you can't

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Speaker 1: have a compact population, um, you're starting to draw districts

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Speaker 1: on the basis of race. Uh, And that's an improper

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Speaker 1: racial jerrymander. So it's really a battle of expert testimony

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Speaker 1: to try to figure out how much is too much

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Speaker 1: when focusing on attention to race and drawing compact districts.

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Speaker 1: So what's your take on what should be done with

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Speaker 1: this map? I think it's tough. I think both this

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Speaker 1: map and the Alabama map um points some very hard questions.

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Speaker 1: In both cases, the black population has risen significantly and

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Speaker 1: yet additional congressional districts have not been created to give

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Speaker 1: them opportunities. Whereas on the flip side, UM, there's pretty

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Speaker 1: persuasive evidence that when computer simulations are drawn and you

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Speaker 1: input a bunch of neutral criteria in and they simulate

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Speaker 1: ten thousand maps, um, there are zero maps that give

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Speaker 1: you too majority black districts, or in Alabama a second one.

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Speaker 1: So UM. That would suggests then that there's a little

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Speaker 1: bit of a thumb on the scale with a race

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Speaker 1: conscious decision. So underlining the Voting Rights Act is this

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Speaker 1: question about trying to make sure that we have opportunities

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Speaker 1: for black voters, and question is how much we can

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Speaker 1: focus on race in cases like these? Have the courts

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Speaker 1: conservatives generally been hostile to voting rights plaintiffs and to

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Speaker 1: the Voting Rights Act? And so is this order in

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Speaker 1: taking the Alabama case another indication that it's open to

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Speaker 1: weakening the role race may play in drawing voting districts. Yeah,

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Speaker 1: it's sometimes hard with these shadow docort cases. As you

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Speaker 1: point out, is right pointing out about the Purcell principle.

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Speaker 1: When the court says, let's not change the rules too

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Speaker 1: close in time to the election, and the filing deadline

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Speaker 1: is next week or the petition deadline begins next week

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Speaker 1: in in Louisiana, UM, So that that's not a merits question.

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Speaker 1: That's just saying we want to hold serve and keep

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Speaker 1: things in place and and keep things running ahead of

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Speaker 1: the next election. This is all sort of fallout from

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Speaker 1: COVID and the census data getting delayed and and pushing

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Speaker 1: a lot of redistroutine decisions later. So you can think

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Speaker 1: maybe the Court is making its decisions on that front.

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Speaker 1: But then there's no question that it's it's perhaps peaking

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Speaker 1: at the merits and some justices are much more persuaded

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Speaker 1: than on the merits um. You know that there's too

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Speaker 1: much focus on race and a couple of these maps,

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Speaker 1: that courts have been too aggressive and trying to draw

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Speaker 1: these districts for majority black voters, things like that, and

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Speaker 1: uh that that maybe the majority of the court is

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Speaker 1: going to say, you know what, we're going to trim

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Speaker 1: back the Voting Rights Act a little bit in some

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Speaker 1: ways that it's done in a handful of cases of

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Speaker 1: the last decade, TIM Voting Rights Act back a little bit.

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Speaker 1: They've already trimmed the Voting Rights to Act a lot,

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Speaker 1: haven't they. So I think this is why I think

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Speaker 1: it's all relative. When I think about Shelby County versus

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Speaker 1: Holder In. That was a real jolt to this system,

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Speaker 1: right determining that uh, Southern jurisdictions in particular no sub

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Speaker 1: or no longer subject to pre clearance. And that's a

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Speaker 1: lot of states, um, dealing with some pretty significant, um,

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Speaker 1: you know, decisions that for decades, every election law had

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Speaker 1: to go through approval from the Department of Justice. Um,

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Speaker 1: this is really kind of an evidentiary question. What kind

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Speaker 1: of evidence do you have to put on to demonstrate

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Speaker 1: compactness of district? What kind of evidence do you have

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Speaker 1: to show in terms of a majority black population, terms

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Speaker 1: of citizen voting age population, in terms of uh, just

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Speaker 1: a numerical majority, whatever it might be. So um, to

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Speaker 1: the extent that we're fighting over one congressional district in

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Speaker 1: these two states, Um, you know, I think, and in

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Speaker 1: some respects it could be much more minor a jolt

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Speaker 1: the system than something like Shelby County versus Holder, But

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Speaker 1: it certainly reflects a trend from the Court to view

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Speaker 1: the Voting Rights Act in a much more narrow fashion

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Speaker 1: than than plaintiffs have been have been trying to litigate

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Speaker 1: for decades. And this is one area where Chief Justice

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Speaker 1: John Roberts is united with his conservative mates there on

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Speaker 1: the Court. Right, he was in the vanguard of the

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Speaker 1: Court that rolled back the Voting Rights Act. Right. So

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Speaker 1: I think Chief Justice Roberts comes out of uh some

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Speaker 1: of the Reagan administration's positions and the Voting Rights Act

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Speaker 1: and some skepticism about the breadth of its implementation in

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Speaker 1: the late eighties UM. And I think that's come through

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Speaker 1: in his Shelby County decision UM using the majority in

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Speaker 1: Bernovitch a couple of terms ago dealing with a related

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Speaker 1: interpretation of Section two of the Voting Rights Act. So

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Speaker 1: so Chief Justice Roberts has been pretty consistent siding with

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Speaker 1: the more conservative view of the Voting Rights Act of

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Speaker 1: over the last decade. We've talked months ago about the

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Speaker 1: number of cases over elections across the country. Have you

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Speaker 1: seen those being resolved or are they still moving along

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Speaker 1: in the court system. I mean, many of these cases

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Speaker 1: are sort of being resolved, UM, at least some of

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Speaker 1: the smaller ones dealing with ballot access and resolving some

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Speaker 1: questions about who's eligible for the ballot or UH some

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Speaker 1: party fights about who can appear on the ballot. But

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Speaker 1: other ones, like in Texas or Georgia's major election bills,

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Speaker 1: these things are slow. They're they're very slowly making their

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Speaker 1: way through the system. UM, you have significant issues. You

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Speaker 1: have UM, a lot of parties, including a lot of interveners,

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Speaker 1: a lot of public interest groups who want to participate

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Speaker 1: in these UH. In this litigation, UM, there's significant expert

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Speaker 1: testimony to demonstrate what kinds of effects the changing of

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Speaker 1: drop box locations or the effect of certain kinds of

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Speaker 1: absentee voting rules might have. So in those major cases,

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Speaker 1: these are slow and they have not moved very far recently.

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Speaker 1: So so it's a law on process to see them

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Speaker 1: percolate up through the court system. One issue that I

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Speaker 1: always found fascinating and concerning is the way some states

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Speaker 1: were trying to take away power from the independent arbiters

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Speaker 1: let's say the secretary of State and find it, you know,

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Speaker 1: more in the lower level administrators that might be more

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Speaker 1: um biased in favor of one party or another. Is

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Speaker 1: that a problem? Well, I think the states have sort

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Speaker 1: of had a variety of approaches UM. So, so some

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Speaker 1: of the problems have actually arisen maybe in the reverse

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Speaker 1: where local discretion is being taken away with more uniform

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Speaker 1: rules at the statewide level, and local officials say, well,

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Speaker 1: we need that discretion, we need some of the judgment

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Speaker 1: calls to be made UM. In other places, so George

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Speaker 1: is among them. UM. There are certain canvassing boards where

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Speaker 1: you take away the secretary of state's role and you

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Speaker 1: replace them with a legislature appointed at it to that position.

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Speaker 1: But again it's only one vote on the panel, and

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Speaker 1: it's something the legislature picks in advance. And so we'll

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Speaker 1: see in the future if anything happens with that kind

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Speaker 1: of personnel selection. UM. So far, we haven't seen a

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Speaker 1: lot of dramatic changes UM. In terms of the administration.

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Speaker 1: There have been some kerfuffles in places like New Mexico

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Speaker 1: and Colorado with some some election deniers, if you will,

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Speaker 1: election skeptics, Muddy Derek will have to leave it there.

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Speaker 1: I really appreciate your insights. We'll talk again. I'm sure

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Speaker 1: that's Derek Muller, professor at the University University of Iowa

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Speaker 1: Law School. This is Bloomberg Sound On on Bloomberg Radio.

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Speaker 1: I'm Jim Grasso, sitting in for Joe Matthew. Now that

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Speaker 1: the Supreme Court has wiped out the constitutional right to abortion,

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Speaker 1: the battle over abortion rights has shifted to the states

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Speaker 1: and state courts in particular Killer There have been a

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Speaker 1: flurry of lawsuits over state abortion bands, focusing on state

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Speaker 1: constitutions in at least eleven states. One of those states

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Speaker 1: is Wisconsin, where Democratic Governor Tony Evers vowed to fight

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Speaker 1: over an anti abortion law on the books for over

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Speaker 1: one seventy years. That's now technically the law again. I

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Speaker 1: don't think that a law that was written before the

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Speaker 1: Civil War or before women secured the right to vote,

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Speaker 1: should be used to dictate these intimate decisions on reproductive

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Speaker 1: health and abortion rights. Activists did win temporary rulings allowing

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Speaker 1: abortions to resume in Louisiana, Texas, and Utah. But I

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Speaker 1: emphasized the word temporary because the full hearings are yet

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Speaker 1: to come. Joining me is Rachel Riboucher, the interim Dean

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Speaker 1: of Temple University Beasley School of Law, and the James E.

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Speaker 1: Beasley Professor of Law. Rebecca does the strategy in these

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Speaker 1: lawsuits depend on the state institutions and whether, for example,

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Speaker 1: a right to privacy is embedded in them. It does.

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Speaker 1: It absolutely depends on the provisions of a state constitution,

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Speaker 1: and those provisions can range from privacy protections, the quality protections,

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Speaker 1: liberty protections, autonomy protections. That it truly depends on the

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Speaker 1: clause at issue in the state constitution and how those

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Speaker 1: how state courts have interpreted that language in the past.

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Speaker 1: These cases are at the lower court levels right now,

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Speaker 1: they're eventually going to go up to the state supreme courts.

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Speaker 1: And state supreme courts in many of these states with

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Speaker 1: restrictive abortion laws are dominated by justices who are Republicans

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Speaker 1: or were appointed by Republicans. In many states, they have

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Speaker 1: to stand for election. So is it likely that they'll

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Speaker 1: take the step to protect abortion rights? So again, I

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Speaker 1: think we might see it's holding that state constitution state

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Speaker 1: supreme courts do not protect a state abortion right. Um,

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Speaker 1: but we might be surprised. I think the place to

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Speaker 1: look is what is the constitutional jurisprudence of that state.

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Speaker 1: How recently has the court interpreted that provision? Has it

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Speaker 1: been applied to the rights UH, contraception, UH, intimacy, relationships, parenting,

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Speaker 1: a cluster of relational and intimate rights that might have

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Speaker 1: also been provided protection under a state constitution. There's a

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Speaker 1: lot of nuance here, and it will depend on what

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Speaker 1: the Supreme Court in that state has said in the

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Speaker 1: past and how it has interpreted those constitutional provisions in

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Speaker 1: its in their prior rulings. You know, it seems like

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Speaker 1: going to the courts there, the landscape is unestablished. What's

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Speaker 1: going to happen here, and it's probably not the best way,

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Speaker 1: but it may be the only way right now. Is

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Speaker 1: there anything the president can do by executive action or

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Speaker 1: something else to maintain the right to abortion in these states?

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Speaker 1: So I think you're right. I think the reason you

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Speaker 1: see a flurry of litigation at the state level is

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Speaker 1: because that is UH for litigators, the most immediate way

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Speaker 1: to enjoy new bands on abortion UH new bans on

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Speaker 1: abortion that states are passing in the wake of Friday's

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Speaker 1: jobs decision. But the federal government does have powers at

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Speaker 1: its disposal through executive orders, even the more UH probably

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Speaker 1: controversial measure of declaring a public health emergency. The executive

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Speaker 1: can marshal the powers of federal agencies that have expertise

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Speaker 1: in various areas of healthcare provision UH and financial support

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Speaker 1: in interpreting federal law. Is that could that could make

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Speaker 1: a difference, or that that that might impact upon abortion.

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Speaker 1: There's even a suggestion that the federal government could set

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Speaker 1: aside land, you know, lease land, or do it on

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Speaker 1: army bases and set up federal abortion clinics in these states.

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Speaker 1: But everything seems to depend on, you know, the will

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Speaker 1: of the Biden administration, and do you question whether the

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Speaker 1: will is really really there. I think the federal lands

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Speaker 1: proposal is certainly a novel one hasn't been tested, and

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Speaker 1: from what I understand, there are real and serious concerns

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Speaker 1: about the logistical difficulties of providing that care and the

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Speaker 1: legal objections that will soon be raised. But certainly it

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Speaker 1: is a proposal that the Biden administration UH has the

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Speaker 1: expertise and UH know how to try or to try

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Speaker 1: to figure out how to mitigate those risks or solve

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Speaker 1: those problems, But as you say, it's a question of will,

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Speaker 1: of whether or not some risk of pursuing a proposal

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Speaker 1: like that are worth taking. Well, because we knew this

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Speaker 1: was coming for a while. We certainly knew it since

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Speaker 1: the draft opinion was leaked, and you know, there were

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Speaker 1: things that the Biden administration could have put into motion

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Speaker 1: and just didn't just waited, and it seems like it's

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Speaker 1: still waiting, you know, it's it's I did listen to

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Speaker 1: the statement of Secretary Sarah Head of the HHS helping

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Speaker 1: Human Services yesterday, and there does seem to be thinking

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Speaker 1: at the level of the y in new Biden administration

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Speaker 1: about what steps they could take um but those steps,

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Speaker 1: of course have not been taken yet. And I think

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Speaker 1: that there is a strong argument to make that the

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Speaker 1: Biden administration could do an audit and inventory of what

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Speaker 1: are the available measures, what are the available powers of

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Speaker 1: different federal agencies, federal bodies, uh, And there were there's

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Speaker 1: where we could peep in action, and there we might

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Speaker 1: have seen a little bit more planning. All right, Well,

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Speaker 1: we'll see what happens. Thanks so much, Rachel. That's Rachel

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Speaker 1: Boucher of Temple University. Beasley School of Law, coming upward

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Speaker 1: and be talking about the case against former President Donald Trump.

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Speaker 1: It's growing stronger, but will he be prosecuted? It was

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Speaker 1: the most dramatic testimony at the January six committee hearings,

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Speaker 1: perhaps the most dramatic and congressional history. Cassidy Hutchinson, formerly

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Speaker 1: an assistant to White House Chief of Staff Mark Meadows,

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Speaker 1: portrayed of violent and out of control Donald Trump at

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Speaker 1: the center of a plot to overturn the election. Hutchinson

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Speaker 1: testified that she was in the White House on January

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Speaker 1: six and recalled White House Council Pat Sippoloni coming to

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Speaker 1: Meadows office as rioters arrived at the Capitol, saying they

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Speaker 1: needed to speak to Trump, something to the effect of Mark,

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Speaker 1: something needs to be done for people are going to

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Speaker 1: die in the blood is going to be on your

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Speaker 1: acting hands. This is getting out of control. I'm going

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Speaker 1: down there. So what's next from the Justice Department, if anything?

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Speaker 1: Joining me is Donald Ayer, adjunct professor at Georgetown Law.

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Speaker 1: He served as Deputy Attorney General and Principal Deputy Solicitor

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Speaker 1: General under President George H. W. Bush. So it seems

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Speaker 1: clear that the January six Committee is laying at a

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Speaker 1: roadmap for the prosecution of former President Trump. How far

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Speaker 1: do you think Cassidy Hutchinson's testimony moved the ball forward.

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Speaker 1: I think it moved the ball forward a good way. UM.

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Speaker 1: I think you know, one of the things we learned

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Speaker 1: is that folks on the upper levels Trump's group, certainly

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Speaker 1: Giuliani certainly meadows probably Trump, but we don't know for sure.

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Speaker 1: We're involved early on, certainly buy early January, very much

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Speaker 1: involved in planning the events of January six. Um. We

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Speaker 1: know that people in the White House, UM and others

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Speaker 1: expected the risk of violence. Um. Uh. Some were very

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Speaker 1: concerned about it. Some like Rudy Giuliani, thought it was

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Speaker 1: going to be a great day. UM. We know that

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Speaker 1: we learned that that on on the day January six,

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Speaker 1: President Trump was um, specifically and concretely aware that the

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Speaker 1: folks there had weapons. UM. And you know, his reaction,

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Speaker 1: as everybody has now heard, was to want to take

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Speaker 1: away the magnetometers because they weren't there to hurt him.

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Speaker 1: So they people with guns and other things could come

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Speaker 1: on in and be present for the cameras when he

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Speaker 1: gave his speech. UM. And then of course we we

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Speaker 1: we learned that there was apparently some sort of virtual

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Speaker 1: physical alter k shan um. But the more important point

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Speaker 1: was the dispute was about the fact that Donald Trump

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Speaker 1: after the speech wanted to go to Capitol Hill with

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Speaker 1: his demonstrators, who he knew had weapons. For what purpose

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Speaker 1: one can only imagine. So it's an awful lot of information,

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Speaker 1: But the biggest thing to keep in mind is that

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Speaker 1: all of the evidence, the other of the evidence from

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Speaker 1: the other hearings of different episodes as part of this saga,

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Speaker 1: this saga conspiracy to overturn the election um that evidence

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Speaker 1: has to all be seen together. And the biggest single

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Speaker 1: point about it all is that, maybe surprisingly uh, for

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Speaker 1: those who might have thought Trump might be kind of

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Speaker 1: around the edges, he is the main actor in everything.

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Speaker 1: He is the driving force who insists on going forward

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Speaker 1: when his own people, many many many of them that

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Speaker 1: many different settings, are saying, don't do it. It's terrible,

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Speaker 1: it's going to be a disaster. But he bowls ahead

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Speaker 1: at time and again, and he's the one doing it.

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Speaker 1: So the Attorney General Merrick Garland appears to be very cautious.

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Speaker 1: What are some of the factors that will go into

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Speaker 1: a decision about whether or not to prosecute Trump. Well,

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Speaker 1: there's the guidelines that guide the department, and they're I'm

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Speaker 1: sure they're emblazoned in his in his brain, and I

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Speaker 1: know he's focused on them, and they're they're the obvious things,

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Speaker 1: the leading factors of the obvious things. You have to

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Speaker 1: look at the nature and the character of the conduct

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Speaker 1: of the wrongdoing, and how serious is it and how

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Speaker 1: big a deal? What priority should we give it? Well,

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Speaker 1: here we have conduct designed to overturn our electoral process

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Speaker 1: and essentially make it nonfunctional. Couldn't have a more serious crime.

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Speaker 1: The second factor, right near the top of the list

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Speaker 1: is deterrence important Here is there reason to think that

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Speaker 1: other people might be doing this? Do we need to

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Speaker 1: have an important prosecution or more than one to deter

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Speaker 1: people from this conduct? Well, we know that people all

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Speaker 1: over the country are plotting to do something similar in

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Speaker 1: states are enacting laws to allow them to do something

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Speaker 1: similar in four So deterrence is is an urgent consideration.

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Speaker 1: And the third factor on the list, near the top

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Speaker 1: of the list of things that the guidelines say they're

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Speaker 1: supposed to think about, is the culpability of the individual

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Speaker 1: who you're considering filing charges against and all of this

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Speaker 1: evidence that we've just been talking about from all of

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Speaker 1: these hearings, and certainly the evidence from this hearing point

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Speaker 1: at Donald Trump as the most culpable person who is

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Speaker 1: doing most of the acts that are driving this whole

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Speaker 1: complicated codetas scheme that that we've watched unfold on the

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Speaker 1: other side, on the other side, you have some things

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Speaker 1: that are not in the guidelines because I don't think

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Speaker 1: we've been considered, which is, do we want to prosecute

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Speaker 1: a former president of the United States? A first in history? Right?

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Speaker 1: That's true, And you also have the factor of, um G,

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Speaker 1: is there a chance he'd get off? And that's certainly

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Speaker 1: a consideration that that actually the likelihood of prevailing is

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Speaker 1: It's another important thing that's in the Justice Department guidelines.

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Speaker 1: Um But I think you know and and this is

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Speaker 1: the judgment that Garlands, that Merrick Garland is going to

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Speaker 1: have to make. But I think that at the end

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Speaker 1: of the day, when you look down the road at

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Speaker 1: the consequences of not holding accountable the conducts here, particularly

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Speaker 1: where the evidence at this point and we don't have

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Speaker 1: all the evidence yet, but we have an awful lot

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Speaker 1: of it where the evidence points very directly at Donald

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Speaker 1: Trump as the prime mover, as the principal person who

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Speaker 1: acted even though numerous people told him you should, and

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Speaker 1: even though he plainly knew because he was told time

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Speaker 1: and again that he really hadn't won the election, there

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Speaker 1: was no serious fraud and he had lost. So you know,

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Speaker 1: I know everyone is um is. Everyone who's thinking about

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Speaker 1: this is quite concerned, and they wonder why Merrick Garland

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Speaker 1: and why the Department hasn't moved sooner. Well, I think

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Speaker 1: it's entirely right that the department be moving gradually, that

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Speaker 1: would be moving carefully. And the other thing I'll say

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Speaker 1: is that one of the things that Merrick Garland has

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Speaker 1: done that is so important after what we saw under

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Speaker 1: the Attorney generalship of William Barr, where he politicized numerous

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Speaker 1: ways over the two years of his term the department,

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Speaker 1: and he used it time and again. People remember the

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Speaker 1: boiler report that he whitewashed. People remember intervening in criminal cases.

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Speaker 1: People remember a lot of things that he did discussing

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Speaker 1: ongoing investigations. We're going to have to leave it. We'll

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Speaker 1: have to leave it there. There's more of testimony, more

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Speaker 1: hearings to come. Thank you so much. That's Donald Ayre

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Speaker 1: of Georgetown Law School. Coming up next. We're going to

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Speaker 1: be talking about what's happening at the Supreme Court. Who's

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Speaker 1: in charge. This is Bloomberg sound On on Bloomberg Radio.

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Speaker 1: Over the span of less than a week, we've seen

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Speaker 1: bombshell Supreme Court rulings on guns, abortion, and religion, where

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Speaker 1: the court's conservative super majority has ignored precedent and rewritten

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Speaker 1: the law. Last Thursday, the Court expanded gun rights, nullifying

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Speaker 1: the laws in New York and other states. Last Friday,

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Speaker 1: the court wiped out the constitutional right to abortion, nullifying

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Speaker 1: the rights of women in about half the states. And

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Speaker 1: on Monday, the Court up ended the law Church and State,

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Speaker 1: nullifying the protections of students religious freedoms. It's not often

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Speaker 1: you hear the governor of a state call out the

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00:26:58,359 --> 00:27:02,080
Speaker 1: Supreme Court as politicized and vow to get around a ruling.

433
00:27:02,280 --> 00:27:05,760
Speaker 1: But that's just what New York Governor Hathy Kathy Hokel did.

434
00:27:06,440 --> 00:27:08,959
Speaker 1: No matter what the Supreme Court things, they can do,

435
00:27:09,160 --> 00:27:15,160
Speaker 1: New Yorkers, you are protected protected from concealed weapons, protected

436
00:27:15,240 --> 00:27:17,800
Speaker 1: from concealed weapons in our subways, in our schools, and

437
00:27:17,840 --> 00:27:23,040
Speaker 1: places like this. Each decision fractured the Court along ideological lines,

438
00:27:23,359 --> 00:27:27,119
Speaker 1: with the liberal justices with no power except to protest

439
00:27:27,240 --> 00:27:32,280
Speaker 1: and dissent. Joinie me are Bloomberg Politics contributors Rick Davis

440
00:27:32,520 --> 00:27:36,920
Speaker 1: and Jennie Sheen Zano, So, Genie, many of us were

441
00:27:37,000 --> 00:27:40,879
Speaker 1: surprised by these rulings. Some were shocked. But should we

442
00:27:40,960 --> 00:27:44,520
Speaker 1: have been didn't the new justices do just what they

443
00:27:44,560 --> 00:27:48,240
Speaker 1: were chosen to do? They did in June, just listening

444
00:27:48,240 --> 00:27:50,760
Speaker 1: to you described the last few days, it's it's what

445
00:27:50,880 --> 00:27:54,359
Speaker 1: a stunning term it has been. Yeah, it's hard to

446
00:27:54,400 --> 00:27:57,399
Speaker 1: even comprehend at this point, but they did tell us

447
00:27:57,440 --> 00:27:59,480
Speaker 1: they forecast what they were going to do. We knew

448
00:27:59,480 --> 00:28:03,080
Speaker 1: it because of the release of the draft decision in

449
00:28:03,200 --> 00:28:06,720
Speaker 1: terms of at least the Mississippi case. And of course

450
00:28:06,880 --> 00:28:10,280
Speaker 1: this is the culmination of decades and decades of work

451
00:28:10,560 --> 00:28:13,600
Speaker 1: by people on the right, the Federalist Society and others.

452
00:28:13,600 --> 00:28:16,520
Speaker 1: So we shouldn't have been surprised. And yet, as somebody

453
00:28:16,520 --> 00:28:19,399
Speaker 1: who teaches the court and watches it almost as carefully,

454
00:28:19,440 --> 00:28:21,520
Speaker 1: not quite as you do, June, I have to say,

455
00:28:21,640 --> 00:28:24,560
Speaker 1: looking at these two decisions back to back the Bruin

456
00:28:24,600 --> 00:28:28,040
Speaker 1: and then the Mississippi decisions last Thursday and Friday. It

457
00:28:28,119 --> 00:28:30,399
Speaker 1: has been just stunning to see it all come to

458
00:28:30,440 --> 00:28:33,720
Speaker 1: fruition so quickly in black and white, if only because

459
00:28:33,760 --> 00:28:37,720
Speaker 1: Amy Coney Barrett just ascended the bench about a year ago,

460
00:28:37,800 --> 00:28:40,440
Speaker 1: so you know, it is quite quick to see this

461
00:28:40,720 --> 00:28:43,160
Speaker 1: what seems like a race to the right and a

462
00:28:43,440 --> 00:28:48,040
Speaker 1: you know, a progressive rather a conservative court really really

463
00:28:48,080 --> 00:28:51,120
Speaker 1: focused on fulfilling its mission decades in the making. And

464
00:28:51,120 --> 00:28:53,720
Speaker 1: then there was a religion decision on Monday, which people

465
00:28:53,760 --> 00:28:56,520
Speaker 1: didn't even pay that much attention to because it's expected

466
00:28:56,560 --> 00:28:59,160
Speaker 1: at this point that the Court is going to rule

467
00:28:59,160 --> 00:29:02,440
Speaker 1: in favor of religion rights. Americans confidence in the Court

468
00:29:02,480 --> 00:29:05,320
Speaker 1: has hit a new low. This is according to a Gallipo.

469
00:29:05,480 --> 00:29:09,600
Speaker 1: Before these decisions, only of Americans say they have confidence

470
00:29:09,640 --> 00:29:13,120
Speaker 1: in the Court. That's the drop of eleven percentage points

471
00:29:13,120 --> 00:29:15,720
Speaker 1: in the last year. Now. Rick Joseph Aldo said in

472
00:29:15,760 --> 00:29:19,560
Speaker 1: the abortion decision that the majority wasn't concerned with public opinion,

473
00:29:20,240 --> 00:29:23,280
Speaker 1: but should they be, Oh, of course they should be.

474
00:29:23,400 --> 00:29:25,160
Speaker 1: Uh June, I mean, this is one of the things

475
00:29:25,240 --> 00:29:28,920
Speaker 1: that creates legitimacy amongst institutions, right, I mean It may

476
00:29:28,920 --> 00:29:30,800
Speaker 1: have been an eleven point drop in last year, but

477
00:29:30,840 --> 00:29:33,560
Speaker 1: it's been down from up as high as sixty percent.

478
00:29:33,760 --> 00:29:35,640
Speaker 1: I mean, when you have a court that has that

479
00:29:35,720 --> 00:29:38,880
Speaker 1: kind of confidence with the American public, then then it

480
00:29:38,960 --> 00:29:41,920
Speaker 1: is more likely to be a lot abiding American public.

481
00:29:41,960 --> 00:29:47,160
Speaker 1: But if the court only has approval rating, uh, who's

482
00:29:47,200 --> 00:29:50,520
Speaker 1: going to stand by and watch the court rule and think, oh, well,

483
00:29:50,560 --> 00:29:53,360
Speaker 1: that's the majority of the American public. Who who agrees

484
00:29:53,400 --> 00:29:56,080
Speaker 1: with that? So it's it is a credibility problem, and

485
00:29:56,080 --> 00:29:57,720
Speaker 1: I think this Court has to do more in the

486
00:29:57,800 --> 00:30:02,400
Speaker 1: public domain to re established. The institution is something that

487
00:30:02,440 --> 00:30:06,960
Speaker 1: Americans trust. But Jennie, instead of a living constitution that

488
00:30:07,120 --> 00:30:10,800
Speaker 1: evolves to expand liberties and equality, the Court now appears

489
00:30:10,840 --> 00:30:14,360
Speaker 1: to be relying on a dead constitution history only approach.

490
00:30:14,800 --> 00:30:17,600
Speaker 1: I'm wondering what future Supreme Court arguments are going to be,

491
00:30:17,680 --> 00:30:20,440
Speaker 1: Like your honor, in the eighteen hundreds, there were no

492
00:30:20,560 --> 00:30:23,960
Speaker 1: privacy rights or miranda rights, so we shouldn't have them now.

493
00:30:24,120 --> 00:30:27,520
Speaker 1: I mean, the Court is on this path now, they

494
00:30:27,560 --> 00:30:30,400
Speaker 1: are on this path. In my view, it it is

495
00:30:31,080 --> 00:30:34,520
Speaker 1: a misreading of history, of political history. It is a

496
00:30:34,600 --> 00:30:38,480
Speaker 1: misreading of what the framers intended and the problem for

497
00:30:38,520 --> 00:30:41,600
Speaker 1: the Court as an institution in terms of legitimacy, as

498
00:30:41,600 --> 00:30:44,080
Speaker 1: you and Rick were just talking about, is it's those

499
00:30:44,120 --> 00:30:46,680
Speaker 1: times when the Court gets either ahead or behind of

500
00:30:46,720 --> 00:30:50,320
Speaker 1: the country in a significant way that they lose legitimacy.

501
00:30:50,680 --> 00:30:54,239
Speaker 1: Dread Scott plus e versus Ferguson and Coora Matsu And

502
00:30:54,280 --> 00:30:56,240
Speaker 1: of course what led to the switch and time that

503
00:30:56,320 --> 00:31:00,240
Speaker 1: Save nine when they were overturning the the f It's

504
00:31:00,360 --> 00:31:05,000
Speaker 1: by the Roosevelt administration to address the worst economic crisis

505
00:31:05,000 --> 00:31:07,800
Speaker 1: of the early twentieth century. Those are the times when

506
00:31:07,800 --> 00:31:10,760
Speaker 1: the Court has lost legitimacy. It's struggled to come back

507
00:31:10,800 --> 00:31:13,360
Speaker 1: after that. And I fear this is where they are

508
00:31:13,360 --> 00:31:15,880
Speaker 1: headed again, because no matter how they want to read

509
00:31:15,920 --> 00:31:20,720
Speaker 1: the Constitution theoretically, the reality is we are in. The

510
00:31:20,800 --> 00:31:24,320
Speaker 1: reality is we do have weapons of mass destruction out

511
00:31:24,360 --> 00:31:26,240
Speaker 1: on the street. In terms of these a R fifty

512
00:31:26,280 --> 00:31:29,400
Speaker 1: seven's going into schools. We have women who need a

513
00:31:29,520 --> 00:31:32,720
Speaker 1: right to privacy to seek medical care. And so when

514
00:31:32,720 --> 00:31:34,920
Speaker 1: the Court gets in a position where it is not

515
00:31:35,040 --> 00:31:38,160
Speaker 1: understanding the time in which it's living, it does itself

516
00:31:38,280 --> 00:31:42,840
Speaker 1: political damage because this is illegal but also a political institution. Rick,

517
00:31:43,000 --> 00:31:46,680
Speaker 1: Democrats never seem to care enough about the Supreme Court

518
00:31:46,800 --> 00:31:50,479
Speaker 1: when they're voting, unlike Republicans. Will it be any different

519
00:31:50,640 --> 00:31:54,440
Speaker 1: in the midterms, particularly the abortion ruling. Will it impact

520
00:31:54,520 --> 00:31:56,280
Speaker 1: voting or is it going to be you know, it's

521
00:31:56,320 --> 00:31:59,560
Speaker 1: just the economy stupid, you know, I think it could

522
00:31:59,600 --> 00:32:05,040
Speaker 1: impact the elections in the sense of driving vote Democrats

523
00:32:05,080 --> 00:32:08,440
Speaker 1: have had an intensity problem. Uh, And this is a reminder,

524
00:32:09,240 --> 00:32:13,520
Speaker 1: a very blatant reminder that elections have consequences. That that

525
00:32:13,520 --> 00:32:16,080
Speaker 1: that that the court they have now that are rendering

526
00:32:16,120 --> 00:32:19,200
Speaker 1: decisions that they disagree with as Democrats, is as a

527
00:32:19,240 --> 00:32:23,080
Speaker 1: result of a political decision that Americans may install Donald

528
00:32:23,080 --> 00:32:27,120
Speaker 1: Trump president United States. And so that could actually be

529
00:32:27,200 --> 00:32:30,280
Speaker 1: a motivating factor for for Democrats in the mid term. Uh.

530
00:32:30,400 --> 00:32:34,280
Speaker 1: The downside is, uh, it's also exciting for Republicans who

531
00:32:34,320 --> 00:32:37,720
Speaker 1: are the beneficiary of these decisions to say, look at

532
00:32:37,800 --> 00:32:39,880
Speaker 1: we're actually finally getting what we want out of the

533
00:32:39,920 --> 00:32:42,680
Speaker 1: Supreme Court because we turned out to vote and won

534
00:32:42,680 --> 00:32:46,920
Speaker 1: an election. So, Jenny, it's still called the Roberts call

535
00:32:47,000 --> 00:32:49,760
Speaker 1: because the Court, because he is the Chief Justice. But

536
00:32:49,880 --> 00:32:52,600
Speaker 1: you know, you read article after article talking about how

537
00:32:52,880 --> 00:32:56,200
Speaker 1: he's lost control. I mean, and you know, we have

538
00:32:56,280 --> 00:32:59,000
Speaker 1: to really acknowledge the fact that he may have gotten

539
00:32:59,040 --> 00:33:03,640
Speaker 1: to overturning eventually, but not right away because he's an incrementalist,

540
00:33:04,320 --> 00:33:08,560
Speaker 1: so the other Conservatives are moving so quickly. Is there

541
00:33:08,560 --> 00:33:12,240
Speaker 1: anything he can do. He's in a tough position. I know,

542
00:33:12,400 --> 00:33:14,960
Speaker 1: I've been looking at some of these articles, and to

543
00:33:15,000 --> 00:33:17,600
Speaker 1: your point, there's been many talking about how he's lost control.

544
00:33:17,640 --> 00:33:20,080
Speaker 1: I think that's a bit of an overstatement. You know,

545
00:33:20,360 --> 00:33:23,440
Speaker 1: he gained control in terms of becoming the this the

546
00:33:23,600 --> 00:33:26,720
Speaker 1: swing vote on the court in so he's had that

547
00:33:26,840 --> 00:33:29,360
Speaker 1: control for exactly two years, even though he's been Chief

548
00:33:29,400 --> 00:33:32,760
Speaker 1: Justice since so five. So it's been a quick a

549
00:33:32,800 --> 00:33:34,920
Speaker 1: wink that he's had control in terms of being the

550
00:33:34,960 --> 00:33:38,680
Speaker 1: most important voice on the court in terms of dictating decisions.

551
00:33:38,760 --> 00:33:42,680
Speaker 1: That said, his incremental you know, ability to move the

552
00:33:42,720 --> 00:33:45,960
Speaker 1: court incrementally, that probably has been lost until in the

553
00:33:46,240 --> 00:33:49,520
Speaker 1: nless we see some personnel change on the court, or

554
00:33:49,560 --> 00:33:51,840
Speaker 1: if somebody has a change of mind or a change

555
00:33:51,840 --> 00:33:53,760
Speaker 1: of heart. But I do think it's a bit of

556
00:33:53,760 --> 00:33:56,120
Speaker 1: an overstatement to say he's lost the court. A chief

557
00:33:56,200 --> 00:33:58,920
Speaker 1: justice is a first among equals, but it's really the

558
00:33:58,960 --> 00:34:01,239
Speaker 1: swing vote that had the power on the court. And

559
00:34:01,280 --> 00:34:03,480
Speaker 1: he doesn't have that. He had it for two years.

560
00:34:03,520 --> 00:34:06,560
Speaker 1: He doesn't have it right now. Rick. So, there are

561
00:34:06,600 --> 00:34:09,279
Speaker 1: things that can be done about the Supreme Court. It

562
00:34:09,320 --> 00:34:13,200
Speaker 1: can be increased in sized, it can be stripped of

563
00:34:13,239 --> 00:34:17,040
Speaker 1: its jurisdiction over certain issues. It can it can be

564
00:34:17,080 --> 00:34:21,239
Speaker 1: required to have a supermajority on certain issues. So, but

565
00:34:21,640 --> 00:34:24,920
Speaker 1: will anything be done? It seems as if Joe Biden

566
00:34:25,560 --> 00:34:29,560
Speaker 1: his administration is not willing to even consider any steps

567
00:34:29,600 --> 00:34:33,399
Speaker 1: moving any legislation this way. Yeah, it's it's a little

568
00:34:33,440 --> 00:34:36,719
Speaker 1: interesting because, um, this has been an administration is for

569
00:34:36,800 --> 00:34:38,640
Speaker 1: a swung for the fences on a lot of issues

570
00:34:38,680 --> 00:34:41,480
Speaker 1: where they didn't necessarily have even their base of their

571
00:34:41,480 --> 00:34:45,080
Speaker 1: party in the Senate on board and in the House

572
00:34:45,080 --> 00:34:48,719
Speaker 1: in some cases. But this is a practical consideration. They

573
00:34:48,800 --> 00:34:50,560
Speaker 1: do not have the votes in the Senate to make

574
00:34:50,560 --> 00:34:53,279
Speaker 1: any kind of structural change to the Supreme Court. You

575
00:34:53,320 --> 00:34:56,000
Speaker 1: need sixty votes. They don't even have the fifty senators

576
00:34:56,000 --> 00:34:58,960
Speaker 1: on the Democratic Caucus willing to tow the line on this.

577
00:34:59,160 --> 00:35:02,560
Speaker 1: And so it's a it's a it's an academic conversation

578
00:35:02,680 --> 00:35:06,799
Speaker 1: until there are significant changes in the electoral landscape. And

579
00:35:07,239 --> 00:35:09,920
Speaker 1: right now, I mean Republicans probably have as much an

580
00:35:09,960 --> 00:35:12,279
Speaker 1: advantage as Democrats due to try to get to that

581
00:35:12,360 --> 00:35:16,480
Speaker 1: magic sixty number on anything dealing with the courts. You know, Genie,

582
00:35:16,480 --> 00:35:19,560
Speaker 1: what surprised me recently is you didn't used to hear

583
00:35:19,600 --> 00:35:24,120
Speaker 1: talk about impeaching justices, but lately since there has been

584
00:35:24,640 --> 00:35:31,040
Speaker 1: talk about how Justice uh Justice Kavanaugh, you know, allegedly

585
00:35:31,239 --> 00:35:35,440
Speaker 1: will say Lie did his confirmation hearing, Susan centator Susan

586
00:35:35,480 --> 00:35:38,480
Speaker 1: Collins says he told her something different about Row. We

587
00:35:38,600 --> 00:35:41,920
Speaker 1: heard Neil Gorsitch and we basically all the justices at

588
00:35:41,920 --> 00:35:45,239
Speaker 1: their confirmation hearings have said that Row was settled precedent.

589
00:35:45,960 --> 00:35:48,880
Speaker 1: So what about this? What do you make of the

590
00:35:48,960 --> 00:35:52,440
Speaker 1: talk about impeaching a justice, Not that it would ever happen,

591
00:35:52,480 --> 00:35:55,960
Speaker 1: but just the fact that the talk is happening. Yeah,

592
00:35:56,040 --> 00:35:58,800
Speaker 1: it's been striking to me. Um. You know, I don't

593
00:35:58,840 --> 00:36:02,439
Speaker 1: believe that these are inpeachable offenses myself. I think they'd

594
00:36:02,440 --> 00:36:04,839
Speaker 1: have a very hard time making that case. I do

595
00:36:04,960 --> 00:36:10,040
Speaker 1: think it comes from a sense of frustration, particularly amongst Democrats, understandably,

596
00:36:10,400 --> 00:36:12,839
Speaker 1: and I think one thing Democrats have to be very

597
00:36:12,880 --> 00:36:17,160
Speaker 1: careful of is this sort of disjointed response. You know,

598
00:36:17,320 --> 00:36:19,880
Speaker 1: I thought the response might be a bit more coherent.

599
00:36:20,320 --> 00:36:23,120
Speaker 1: It's been a bit disjointed. So you hear a lot

600
00:36:23,160 --> 00:36:25,640
Speaker 1: of fundraising, a lot of get out the vote, but

601
00:36:26,200 --> 00:36:29,279
Speaker 1: from the base you hear a frustration, particularly young people

602
00:36:29,320 --> 00:36:31,759
Speaker 1: who I talked to a lot, who say, we did

603
00:36:31,800 --> 00:36:34,839
Speaker 1: get out to vote, we did elect Democrats and we're

604
00:36:34,920 --> 00:36:38,840
Speaker 1: still here. So they really want a coherent approach to

605
00:36:38,960 --> 00:36:41,920
Speaker 1: this from the administration, from Democrats, and that's one thing

606
00:36:41,960 --> 00:36:45,279
Speaker 1: I hope they sort of get behind um again. I

607
00:36:45,320 --> 00:36:47,719
Speaker 1: haven't heard that coherent approach yet, and I think it's

608
00:36:47,719 --> 00:36:51,160
Speaker 1: a danger for Democrats. But in terms of impeachment, I

609
00:36:51,160 --> 00:36:53,560
Speaker 1: don't think these are impeachable offenses. I do think it's

610
00:36:53,600 --> 00:36:57,480
Speaker 1: a time for us to revisit how the Senate Judiciary

611
00:36:57,480 --> 00:36:59,919
Speaker 1: Committee and Senates whole gives advice and consent on these

612
00:37:00,040 --> 00:37:04,239
Speaker 1: confirmations and these nominations. It's been so interesting. Thanks so

613
00:37:04,360 --> 00:37:07,640
Speaker 1: much both of you for joining me here. That's Bloomberg

614
00:37:07,680 --> 00:37:12,759
Speaker 1: Politics contributors Rick Davis and Jeanie Janzano. And that's it

615
00:37:12,880 --> 00:37:16,040
Speaker 1: for this edition of Sound On. Joe Matthew will be back.

616
00:37:16,120 --> 00:37:20,239
Speaker 1: I'm June Grosso coming up Daybreak Asia. This is Bloomberg,