Speaker 1: All see in perspective from DC's top names. This is
Speaker 1: likely to all being litigated out in the various date
Speaker 1: around the contort. I don't think that a law that
Speaker 1: was written before the Civil War should be used to
Speaker 1: dictate these intimate decisions. Bloomberg found on with Joe Matthew
Speaker 1: on Bloomberg Radio and Joan Grasso sitting in for Joe
Speaker 1: Matthew today, and we're going to be talking about a
Speaker 1: setback to Democrats on redistricting, the Supreme Court using its
Speaker 1: shadow docket to reinstate a racially gerrymandered congressional map in Louisiana.
Speaker 1: We'll talk to Supreme Court report a Greg's Store about
Speaker 1: that and find out what's happening at the Court tomorrow,
Speaker 1: the last day of the term. There's a battle over
Speaker 1: redistricting playing out across the country. And yesterday the Supreme Court,
Speaker 1: without any explanation, reinstated a Republican drawn congressional map in
Speaker 1: Louisiana that a federal judge had said dilutes the power
Speaker 1: of black voters, just as the Court had done in
Speaker 1: a similar case is involving an Alabama map in February.
Speaker 1: Joining me is Greg Store Bloomberg Supreme Court reporter Greg,
Speaker 1: Before we get to the Louisiana case, some of us
Speaker 1: foolishly expected that today would be the last decision day
Speaker 1: for the court. It only issued two decisions, leaving to
Speaker 1: controversial cases for tomorrow. Any idea why, Well, the Court
Speaker 1: has a lot on its play tune, and you know
Speaker 1: they tend to spread things out a little bit. So
Speaker 1: we'll end up with three opinion days this week and
Speaker 1: that's not too unusual for the last day of the
Speaker 1: Supreme Court term. And tomorrow there's going to be a
Speaker 1: special ceremony, there will be the newest Justice Ktanti Brown
Speaker 1: Jackson will be sworn in at noon. That's when Justice
Speaker 1: Stephen briars retirement takes effect. So Greg, tell us about
Speaker 1: this Louisiana case, which the court dealt with in its
Speaker 1: shadow docket, meaning that there weren't the usual arguments before
Speaker 1: the cord or bree thing schedule. Yeah, as you said,
Speaker 1: it is very similar to an Alabama case they've already
Speaker 1: dealt with, and they are going to hear arguments in
Speaker 1: the Alabama case in the fall. And back when when
Speaker 1: the similar thing happened in Alabama, a lower court said
Speaker 1: Alabama needs to have a second heavily black district under
Speaker 1: the Voting Rights Act. Uh. And the Supreme Court blocked
Speaker 1: that ruling and said in that case that, uh, it's
Speaker 1: too close to the election and that we we kind
Speaker 1: of have this rule that's known as the Purcell principle
Speaker 1: that dictates that as we get close to an election,
Speaker 1: federal court shouldn't change the election rules. And that's kind
Speaker 1: of the explanation that the Court gave at the time
Speaker 1: there Um Louisiana, similar situation. Louisiana is one third black.
Speaker 1: It has six congressional districts, and under the Republican drawing map,
Speaker 1: only one of the districts was going to be majority black.
Speaker 1: And a similar thing Trold Judge said that violates the
Speaker 1: Voting Rights Act. You need to draw a map with
Speaker 1: a second majority black district. Supreme Court then intervened and
Speaker 1: block that and did not give an explanation. As you said,
Speaker 1: all right, Greg, thanks so much. We're gonna let you
Speaker 1: go so you can get ready for those two decisions tomorrow,
Speaker 1: which you're going to be blockbusters, one on the e
Speaker 1: p A and one on the remain in Mexico policy.
Speaker 1: Thanks so much, Greg. That's Bloomberg Supreme Court reporter Greg Store.
Speaker 1: Joining me now is Derek Muller. He's a professor at
Speaker 1: the University of Iowa Law School who specializes in election law. So, Derek,
Speaker 1: Louisiana has six members of Congress, but only one of
Speaker 1: the districts is majority black, even though blacks make up
Speaker 1: one third of the state's voters. Isn't it theorily obvious
Speaker 1: that this Republican drawn map dilutes the votes of blacks
Speaker 1: in that state? Well, I think the Republicans in this
Speaker 1: case argued, Look, if you look at how the black
Speaker 1: vote as are dispersed throughout the state, they're more spread
Speaker 1: out than you might find in other parts of the
Speaker 1: country where they might be more concentrated. And so one
Speaker 1: of the things that the challengers pointed out here is
Speaker 1: to say, look, when you're drawing a map, one of
Speaker 1: the things you require is compactness. And if you can't
Speaker 1: have a compact population, um, you're starting to draw districts
Speaker 1: on the basis of race. Uh, And that's an improper
Speaker 1: racial jerrymander. So it's really a battle of expert testimony
Speaker 1: to try to figure out how much is too much
Speaker 1: when focusing on attention to race and drawing compact districts.
Speaker 1: So what's your take on what should be done with
Speaker 1: this map? I think it's tough. I think both this
Speaker 1: map and the Alabama map um points some very hard questions.
Speaker 1: In both cases, the black population has risen significantly and
Speaker 1: yet additional congressional districts have not been created to give
Speaker 1: them opportunities. Whereas on the flip side, UM, there's pretty
Speaker 1: persuasive evidence that when computer simulations are drawn and you
Speaker 1: input a bunch of neutral criteria in and they simulate
Speaker 1: ten thousand maps, um, there are zero maps that give
Speaker 1: you too majority black districts, or in Alabama a second one.
Speaker 1: So UM. That would suggests then that there's a little
Speaker 1: bit of a thumb on the scale with a race
Speaker 1: conscious decision. So underlining the Voting Rights Act is this
Speaker 1: question about trying to make sure that we have opportunities
Speaker 1: for black voters, and question is how much we can
Speaker 1: focus on race in cases like these? Have the courts
Speaker 1: conservatives generally been hostile to voting rights plaintiffs and to
Speaker 1: the Voting Rights Act? And so is this order in
Speaker 1: taking the Alabama case another indication that it's open to
Speaker 1: weakening the role race may play in drawing voting districts. Yeah,
Speaker 1: it's sometimes hard with these shadow docort cases. As you
Speaker 1: point out, is right pointing out about the Purcell principle.
Speaker 1: When the court says, let's not change the rules too
Speaker 1: close in time to the election, and the filing deadline
Speaker 1: is next week or the petition deadline begins next week
Speaker 1: in in Louisiana, UM, So that that's not a merits question.
Speaker 1: That's just saying we want to hold serve and keep
Speaker 1: things in place and and keep things running ahead of
Speaker 1: the next election. This is all sort of fallout from
Speaker 1: COVID and the census data getting delayed and and pushing
Speaker 1: a lot of redistroutine decisions later. So you can think
Speaker 1: maybe the Court is making its decisions on that front.
Speaker 1: But then there's no question that it's it's perhaps peaking
Speaker 1: at the merits and some justices are much more persuaded
Speaker 1: than on the merits um. You know that there's too
Speaker 1: much focus on race and a couple of these maps,
Speaker 1: that courts have been too aggressive and trying to draw
Speaker 1: these districts for majority black voters, things like that, and
Speaker 1: uh that that maybe the majority of the court is
Speaker 1: going to say, you know what, we're going to trim
Speaker 1: back the Voting Rights Act a little bit in some
Speaker 1: ways that it's done in a handful of cases of
Speaker 1: the last decade, TIM Voting Rights Act back a little bit.
Speaker 1: They've already trimmed the Voting Rights to Act a lot,
Speaker 1: haven't they. So I think this is why I think
Speaker 1: it's all relative. When I think about Shelby County versus
Speaker 1: Holder In. That was a real jolt to this system,
Speaker 1: right determining that uh, Southern jurisdictions in particular no sub
Speaker 1: or no longer subject to pre clearance. And that's a
Speaker 1: lot of states, um, dealing with some pretty significant, um,
Speaker 1: you know, decisions that for decades, every election law had
Speaker 1: to go through approval from the Department of Justice. Um,
Speaker 1: this is really kind of an evidentiary question. What kind
Speaker 1: of evidence do you have to put on to demonstrate
Speaker 1: compactness of district? What kind of evidence do you have
Speaker 1: to show in terms of a majority black population, terms
Speaker 1: of citizen voting age population, in terms of uh, just
Speaker 1: a numerical majority, whatever it might be. So um, to
Speaker 1: the extent that we're fighting over one congressional district in
Speaker 1: these two states, Um, you know, I think, and in
Speaker 1: some respects it could be much more minor a jolt
Speaker 1: the system than something like Shelby County versus Holder, But
Speaker 1: it certainly reflects a trend from the Court to view
Speaker 1: the Voting Rights Act in a much more narrow fashion
Speaker 1: than than plaintiffs have been have been trying to litigate
Speaker 1: for decades. And this is one area where Chief Justice
Speaker 1: John Roberts is united with his conservative mates there on
Speaker 1: the Court. Right, he was in the vanguard of the
Speaker 1: Court that rolled back the Voting Rights Act. Right. So
Speaker 1: I think Chief Justice Roberts comes out of uh some
Speaker 1: of the Reagan administration's positions and the Voting Rights Act
Speaker 1: and some skepticism about the breadth of its implementation in
Speaker 1: the late eighties UM. And I think that's come through
Speaker 1: in his Shelby County decision UM using the majority in
Speaker 1: Bernovitch a couple of terms ago dealing with a related
Speaker 1: interpretation of Section two of the Voting Rights Act. So
Speaker 1: so Chief Justice Roberts has been pretty consistent siding with
Speaker 1: the more conservative view of the Voting Rights Act of
Speaker 1: over the last decade. We've talked months ago about the
Speaker 1: number of cases over elections across the country. Have you
Speaker 1: seen those being resolved or are they still moving along
Speaker 1: in the court system. I mean, many of these cases
Speaker 1: are sort of being resolved, UM, at least some of
Speaker 1: the smaller ones dealing with ballot access and resolving some
Speaker 1: questions about who's eligible for the ballot or UH some
Speaker 1: party fights about who can appear on the ballot. But
Speaker 1: other ones, like in Texas or Georgia's major election bills,
Speaker 1: these things are slow. They're they're very slowly making their
Speaker 1: way through the system. UM, you have significant issues. You
Speaker 1: have UM, a lot of parties, including a lot of interveners,
Speaker 1: a lot of public interest groups who want to participate
Speaker 1: in these UH. In this litigation, UM, there's significant expert
Speaker 1: testimony to demonstrate what kinds of effects the changing of
Speaker 1: drop box locations or the effect of certain kinds of
Speaker 1: absentee voting rules might have. So in those major cases,
Speaker 1: these are slow and they have not moved very far recently.
Speaker 1: So so it's a law on process to see them
Speaker 1: percolate up through the court system. One issue that I
Speaker 1: always found fascinating and concerning is the way some states
Speaker 1: were trying to take away power from the independent arbiters
Speaker 1: let's say the secretary of State and find it, you know,
Speaker 1: more in the lower level administrators that might be more
Speaker 1: um biased in favor of one party or another. Is
Speaker 1: that a problem? Well, I think the states have sort
Speaker 1: of had a variety of approaches UM. So, so some
Speaker 1: of the problems have actually arisen maybe in the reverse
Speaker 1: where local discretion is being taken away with more uniform
Speaker 1: rules at the statewide level, and local officials say, well,
Speaker 1: we need that discretion, we need some of the judgment
Speaker 1: calls to be made UM. In other places, so George
Speaker 1: is among them. UM. There are certain canvassing boards where
Speaker 1: you take away the secretary of state's role and you
Speaker 1: replace them with a legislature appointed at it to that position.
Speaker 1: But again it's only one vote on the panel, and
Speaker 1: it's something the legislature picks in advance. And so we'll
Speaker 1: see in the future if anything happens with that kind
Speaker 1: of personnel selection. UM. So far, we haven't seen a
Speaker 1: lot of dramatic changes UM. In terms of the administration.
Speaker 1: There have been some kerfuffles in places like New Mexico
Speaker 1: and Colorado with some some election deniers, if you will,
Speaker 1: election skeptics, Muddy Derek will have to leave it there.
Speaker 1: I really appreciate your insights. We'll talk again. I'm sure
Speaker 1: that's Derek Muller, professor at the University University of Iowa
Speaker 1: Law School. This is Bloomberg Sound On on Bloomberg Radio.
Speaker 1: I'm Jim Grasso, sitting in for Joe Matthew. Now that
Speaker 1: the Supreme Court has wiped out the constitutional right to abortion,
Speaker 1: the battle over abortion rights has shifted to the states
Speaker 1: and state courts in particular Killer There have been a
Speaker 1: flurry of lawsuits over state abortion bands, focusing on state
Speaker 1: constitutions in at least eleven states. One of those states
Speaker 1: is Wisconsin, where Democratic Governor Tony Evers vowed to fight
Speaker 1: over an anti abortion law on the books for over
Speaker 1: one seventy years. That's now technically the law again. I
Speaker 1: don't think that a law that was written before the
Speaker 1: Civil War or before women secured the right to vote,
Speaker 1: should be used to dictate these intimate decisions on reproductive
Speaker 1: health and abortion rights. Activists did win temporary rulings allowing
Speaker 1: abortions to resume in Louisiana, Texas, and Utah. But I
Speaker 1: emphasized the word temporary because the full hearings are yet
Speaker 1: to come. Joining me is Rachel Riboucher, the interim Dean
Speaker 1: of Temple University Beasley School of Law, and the James E.
Speaker 1: Beasley Professor of Law. Rebecca does the strategy in these
Speaker 1: lawsuits depend on the state institutions and whether, for example,
Speaker 1: a right to privacy is embedded in them. It does.
Speaker 1: It absolutely depends on the provisions of a state constitution,
Speaker 1: and those provisions can range from privacy protections, the quality protections,
Speaker 1: liberty protections, autonomy protections. That it truly depends on the
Speaker 1: clause at issue in the state constitution and how those
Speaker 1: how state courts have interpreted that language in the past.
Speaker 1: These cases are at the lower court levels right now,
Speaker 1: they're eventually going to go up to the state supreme courts.
Speaker 1: And state supreme courts in many of these states with
Speaker 1: restrictive abortion laws are dominated by justices who are Republicans
Speaker 1: or were appointed by Republicans. In many states, they have
Speaker 1: to stand for election. So is it likely that they'll
Speaker 1: take the step to protect abortion rights? So again, I
Speaker 1: think we might see it's holding that state constitution state
Speaker 1: supreme courts do not protect a state abortion right. Um,
Speaker 1: but we might be surprised. I think the place to
Speaker 1: look is what is the constitutional jurisprudence of that state.
Speaker 1: How recently has the court interpreted that provision? Has it
Speaker 1: been applied to the rights UH, contraception, UH, intimacy, relationships, parenting,
Speaker 1: a cluster of relational and intimate rights that might have
Speaker 1: also been provided protection under a state constitution. There's a
Speaker 1: lot of nuance here, and it will depend on what
Speaker 1: the Supreme Court in that state has said in the
Speaker 1: past and how it has interpreted those constitutional provisions in
Speaker 1: its in their prior rulings. You know, it seems like
Speaker 1: going to the courts there, the landscape is unestablished. What's
Speaker 1: going to happen here, and it's probably not the best way,
Speaker 1: but it may be the only way right now. Is
Speaker 1: there anything the president can do by executive action or
Speaker 1: something else to maintain the right to abortion in these states?
Speaker 1: So I think you're right. I think the reason you
Speaker 1: see a flurry of litigation at the state level is
Speaker 1: because that is UH for litigators, the most immediate way
Speaker 1: to enjoy new bands on abortion UH new bans on
Speaker 1: abortion that states are passing in the wake of Friday's
Speaker 1: jobs decision. But the federal government does have powers at
Speaker 1: its disposal through executive orders, even the more UH probably
Speaker 1: controversial measure of declaring a public health emergency. The executive
Speaker 1: can marshal the powers of federal agencies that have expertise
Speaker 1: in various areas of healthcare provision UH and financial support
Speaker 1: in interpreting federal law. Is that could that could make
Speaker 1: a difference, or that that that might impact upon abortion.
Speaker 1: There's even a suggestion that the federal government could set
Speaker 1: aside land, you know, lease land, or do it on
Speaker 1: army bases and set up federal abortion clinics in these states.
Speaker 1: But everything seems to depend on, you know, the will
Speaker 1: of the Biden administration, and do you question whether the
Speaker 1: will is really really there. I think the federal lands
Speaker 1: proposal is certainly a novel one hasn't been tested, and
Speaker 1: from what I understand, there are real and serious concerns
Speaker 1: about the logistical difficulties of providing that care and the
Speaker 1: legal objections that will soon be raised. But certainly it
Speaker 1: is a proposal that the Biden administration UH has the
Speaker 1: expertise and UH know how to try or to try
Speaker 1: to figure out how to mitigate those risks or solve
Speaker 1: those problems, But as you say, it's a question of will,
Speaker 1: of whether or not some risk of pursuing a proposal
Speaker 1: like that are worth taking. Well, because we knew this
Speaker 1: was coming for a while. We certainly knew it since
Speaker 1: the draft opinion was leaked, and you know, there were
Speaker 1: things that the Biden administration could have put into motion
Speaker 1: and just didn't just waited, and it seems like it's
Speaker 1: still waiting, you know, it's it's I did listen to
Speaker 1: the statement of Secretary Sarah Head of the HHS helping
Speaker 1: Human Services yesterday, and there does seem to be thinking
Speaker 1: at the level of the y in new Biden administration
Speaker 1: about what steps they could take um but those steps,
Speaker 1: of course have not been taken yet. And I think
Speaker 1: that there is a strong argument to make that the
Speaker 1: Biden administration could do an audit and inventory of what
Speaker 1: are the available measures, what are the available powers of
Speaker 1: different federal agencies, federal bodies, uh, And there were there's
Speaker 1: where we could peep in action, and there we might
Speaker 1: have seen a little bit more planning. All right, Well,
Speaker 1: we'll see what happens. Thanks so much, Rachel. That's Rachel
Speaker 1: Boucher of Temple University. Beasley School of Law, coming upward
Speaker 1: and be talking about the case against former President Donald Trump.
Speaker 1: It's growing stronger, but will he be prosecuted? It was
Speaker 1: the most dramatic testimony at the January six committee hearings,
Speaker 1: perhaps the most dramatic and congressional history. Cassidy Hutchinson, formerly
Speaker 1: an assistant to White House Chief of Staff Mark Meadows,
Speaker 1: portrayed of violent and out of control Donald Trump at
Speaker 1: the center of a plot to overturn the election. Hutchinson
Speaker 1: testified that she was in the White House on January
Speaker 1: six and recalled White House Council Pat Sippoloni coming to
Speaker 1: Meadows office as rioters arrived at the Capitol, saying they
Speaker 1: needed to speak to Trump, something to the effect of Mark,
Speaker 1: something needs to be done for people are going to
Speaker 1: die in the blood is going to be on your
Speaker 1: acting hands. This is getting out of control. I'm going
Speaker 1: down there. So what's next from the Justice Department, if anything?
Speaker 1: Joining me is Donald Ayer, adjunct professor at Georgetown Law.
Speaker 1: He served as Deputy Attorney General and Principal Deputy Solicitor
Speaker 1: General under President George H. W. Bush. So it seems
Speaker 1: clear that the January six Committee is laying at a
Speaker 1: roadmap for the prosecution of former President Trump. How far
Speaker 1: do you think Cassidy Hutchinson's testimony moved the ball forward.
Speaker 1: I think it moved the ball forward a good way. UM.
Speaker 1: I think you know, one of the things we learned
Speaker 1: is that folks on the upper levels Trump's group, certainly
Speaker 1: Giuliani certainly meadows probably Trump, but we don't know for sure.
Speaker 1: We're involved early on, certainly buy early January, very much
Speaker 1: involved in planning the events of January six. Um. We
Speaker 1: know that people in the White House, UM and others
Speaker 1: expected the risk of violence. Um. Uh. Some were very
Speaker 1: concerned about it. Some like Rudy Giuliani, thought it was
Speaker 1: going to be a great day. UM. We know that
Speaker 1: we learned that that on on the day January six,
Speaker 1: President Trump was um, specifically and concretely aware that the
Speaker 1: folks there had weapons. UM. And you know, his reaction,
Speaker 1: as everybody has now heard, was to want to take
Speaker 1: away the magnetometers because they weren't there to hurt him.
Speaker 1: So they people with guns and other things could come
Speaker 1: on in and be present for the cameras when he
Speaker 1: gave his speech. UM. And then of course we we
Speaker 1: we learned that there was apparently some sort of virtual
Speaker 1: physical alter k shan um. But the more important point
Speaker 1: was the dispute was about the fact that Donald Trump
Speaker 1: after the speech wanted to go to Capitol Hill with
Speaker 1: his demonstrators, who he knew had weapons. For what purpose
Speaker 1: one can only imagine. So it's an awful lot of information,
Speaker 1: But the biggest thing to keep in mind is that
Speaker 1: all of the evidence, the other of the evidence from
Speaker 1: the other hearings of different episodes as part of this saga,
Speaker 1: this saga conspiracy to overturn the election um that evidence
Speaker 1: has to all be seen together. And the biggest single
Speaker 1: point about it all is that, maybe surprisingly uh, for
Speaker 1: those who might have thought Trump might be kind of
Speaker 1: around the edges, he is the main actor in everything.
Speaker 1: He is the driving force who insists on going forward
Speaker 1: when his own people, many many many of them that
Speaker 1: many different settings, are saying, don't do it. It's terrible,
Speaker 1: it's going to be a disaster. But he bowls ahead
Speaker 1: at time and again, and he's the one doing it.
Speaker 1: So the Attorney General Merrick Garland appears to be very cautious.
Speaker 1: What are some of the factors that will go into
Speaker 1: a decision about whether or not to prosecute Trump. Well,
Speaker 1: there's the guidelines that guide the department, and they're I'm
Speaker 1: sure they're emblazoned in his in his brain, and I
Speaker 1: know he's focused on them, and they're they're the obvious things,
Speaker 1: the leading factors of the obvious things. You have to
Speaker 1: look at the nature and the character of the conduct
Speaker 1: of the wrongdoing, and how serious is it and how
Speaker 1: big a deal? What priority should we give it? Well,
Speaker 1: here we have conduct designed to overturn our electoral process
Speaker 1: and essentially make it nonfunctional. Couldn't have a more serious crime.
Speaker 1: The second factor, right near the top of the list
Speaker 1: is deterrence important Here is there reason to think that
Speaker 1: other people might be doing this? Do we need to
Speaker 1: have an important prosecution or more than one to deter
Speaker 1: people from this conduct? Well, we know that people all
Speaker 1: over the country are plotting to do something similar in
Speaker 1: states are enacting laws to allow them to do something
Speaker 1: similar in four So deterrence is is an urgent consideration.
Speaker 1: And the third factor on the list, near the top
Speaker 1: of the list of things that the guidelines say they're
Speaker 1: supposed to think about, is the culpability of the individual
Speaker 1: who you're considering filing charges against and all of this
Speaker 1: evidence that we've just been talking about from all of
Speaker 1: these hearings, and certainly the evidence from this hearing point
Speaker 1: at Donald Trump as the most culpable person who is
Speaker 1: doing most of the acts that are driving this whole
Speaker 1: complicated codetas scheme that that we've watched unfold on the
Speaker 1: other side, on the other side, you have some things
Speaker 1: that are not in the guidelines because I don't think
Speaker 1: we've been considered, which is, do we want to prosecute
Speaker 1: a former president of the United States? A first in history? Right?
Speaker 1: That's true, And you also have the factor of, um G,
Speaker 1: is there a chance he'd get off? And that's certainly
Speaker 1: a consideration that that actually the likelihood of prevailing is
Speaker 1: It's another important thing that's in the Justice Department guidelines.
Speaker 1: Um But I think you know and and this is
Speaker 1: the judgment that Garlands, that Merrick Garland is going to
Speaker 1: have to make. But I think that at the end
Speaker 1: of the day, when you look down the road at
Speaker 1: the consequences of not holding accountable the conducts here, particularly
Speaker 1: where the evidence at this point and we don't have
Speaker 1: all the evidence yet, but we have an awful lot
Speaker 1: of it where the evidence points very directly at Donald
Speaker 1: Trump as the prime mover, as the principal person who
Speaker 1: acted even though numerous people told him you should, and
Speaker 1: even though he plainly knew because he was told time
Speaker 1: and again that he really hadn't won the election, there
Speaker 1: was no serious fraud and he had lost. So you know,
Speaker 1: I know everyone is um is. Everyone who's thinking about
Speaker 1: this is quite concerned, and they wonder why Merrick Garland
Speaker 1: and why the Department hasn't moved sooner. Well, I think
Speaker 1: it's entirely right that the department be moving gradually, that
Speaker 1: would be moving carefully. And the other thing I'll say
Speaker 1: is that one of the things that Merrick Garland has
Speaker 1: done that is so important after what we saw under
Speaker 1: the Attorney generalship of William Barr, where he politicized numerous
Speaker 1: ways over the two years of his term the department,
Speaker 1: and he used it time and again. People remember the
Speaker 1: boiler report that he whitewashed. People remember intervening in criminal cases.
Speaker 1: People remember a lot of things that he did discussing
Speaker 1: ongoing investigations. We're going to have to leave it. We'll
Speaker 1: have to leave it there. There's more of testimony, more
Speaker 1: hearings to come. Thank you so much. That's Donald Ayre
Speaker 1: of Georgetown Law School. Coming up next. We're going to
Speaker 1: be talking about what's happening at the Supreme Court. Who's
Speaker 1: in charge. This is Bloomberg sound On on Bloomberg Radio.
Speaker 1: Over the span of less than a week, we've seen
Speaker 1: bombshell Supreme Court rulings on guns, abortion, and religion, where
Speaker 1: the court's conservative super majority has ignored precedent and rewritten
Speaker 1: the law. Last Thursday, the Court expanded gun rights, nullifying
Speaker 1: the laws in New York and other states. Last Friday,
Speaker 1: the court wiped out the constitutional right to abortion, nullifying
Speaker 1: the rights of women in about half the states. And
Speaker 1: on Monday, the Court up ended the law Church and State,
Speaker 1: nullifying the protections of students religious freedoms. It's not often
Speaker 1: you hear the governor of a state call out the
Speaker 1: Supreme Court as politicized and vow to get around a ruling.
Speaker 1: But that's just what New York Governor Hathy Kathy Hokel did.
Speaker 1: No matter what the Supreme Court things, they can do,
Speaker 1: New Yorkers, you are protected protected from concealed weapons, protected
Speaker 1: from concealed weapons in our subways, in our schools, and
Speaker 1: places like this. Each decision fractured the Court along ideological lines,
Speaker 1: with the liberal justices with no power except to protest
Speaker 1: and dissent. Joinie me are Bloomberg Politics contributors Rick Davis
Speaker 1: and Jennie Sheen Zano, So, Genie, many of us were
Speaker 1: surprised by these rulings. Some were shocked. But should we
Speaker 1: have been didn't the new justices do just what they
Speaker 1: were chosen to do? They did in June, just listening
Speaker 1: to you described the last few days, it's it's what
Speaker 1: a stunning term it has been. Yeah, it's hard to
Speaker 1: even comprehend at this point, but they did tell us
Speaker 1: they forecast what they were going to do. We knew
Speaker 1: it because of the release of the draft decision in
Speaker 1: terms of at least the Mississippi case. And of course
Speaker 1: this is the culmination of decades and decades of work
Speaker 1: by people on the right, the Federalist Society and others.
Speaker 1: So we shouldn't have been surprised. And yet, as somebody
Speaker 1: who teaches the court and watches it almost as carefully,
Speaker 1: not quite as you do, June, I have to say,
Speaker 1: looking at these two decisions back to back the Bruin
Speaker 1: and then the Mississippi decisions last Thursday and Friday. It
Speaker 1: has been just stunning to see it all come to
Speaker 1: fruition so quickly in black and white, if only because
Speaker 1: Amy Coney Barrett just ascended the bench about a year ago,
Speaker 1: so you know, it is quite quick to see this
Speaker 1: what seems like a race to the right and a
Speaker 1: you know, a progressive rather a conservative court really really
Speaker 1: focused on fulfilling its mission decades in the making. And
Speaker 1: then there was a religion decision on Monday, which people
Speaker 1: didn't even pay that much attention to because it's expected
Speaker 1: at this point that the Court is going to rule
Speaker 1: in favor of religion rights. Americans confidence in the Court
Speaker 1: has hit a new low. This is according to a Gallipo.
Speaker 1: Before these decisions, only of Americans say they have confidence
Speaker 1: in the Court. That's the drop of eleven percentage points
Speaker 1: in the last year. Now. Rick Joseph Aldo said in
Speaker 1: the abortion decision that the majority wasn't concerned with public opinion,
Speaker 1: but should they be, Oh, of course they should be.
Speaker 1: Uh June, I mean, this is one of the things
Speaker 1: that creates legitimacy amongst institutions, right, I mean It may
Speaker 1: have been an eleven point drop in last year, but
Speaker 1: it's been down from up as high as sixty percent.
Speaker 1: I mean, when you have a court that has that
Speaker 1: kind of confidence with the American public, then then it
Speaker 1: is more likely to be a lot abiding American public.
Speaker 1: But if the court only has approval rating, uh, who's
Speaker 1: going to stand by and watch the court rule and think, oh, well,
Speaker 1: that's the majority of the American public. Who who agrees
Speaker 1: with that? So it's it is a credibility problem, and
Speaker 1: I think this Court has to do more in the
Speaker 1: public domain to re established. The institution is something that
Speaker 1: Americans trust. But Jennie, instead of a living constitution that
Speaker 1: evolves to expand liberties and equality, the Court now appears
Speaker 1: to be relying on a dead constitution history only approach.
Speaker 1: I'm wondering what future Supreme Court arguments are going to be,
Speaker 1: Like your honor, in the eighteen hundreds, there were no
Speaker 1: privacy rights or miranda rights, so we shouldn't have them now.
Speaker 1: I mean, the Court is on this path now, they
Speaker 1: are on this path. In my view, it it is
Speaker 1: a misreading of history, of political history. It is a
Speaker 1: misreading of what the framers intended and the problem for
Speaker 1: the Court as an institution in terms of legitimacy, as
Speaker 1: you and Rick were just talking about, is it's those
Speaker 1: times when the Court gets either ahead or behind of
Speaker 1: the country in a significant way that they lose legitimacy.
Speaker 1: Dread Scott plus e versus Ferguson and Coora Matsu And
Speaker 1: of course what led to the switch and time that
Speaker 1: Save nine when they were overturning the the f It's
Speaker 1: by the Roosevelt administration to address the worst economic crisis
Speaker 1: of the early twentieth century. Those are the times when
Speaker 1: the Court has lost legitimacy. It's struggled to come back
Speaker 1: after that. And I fear this is where they are
Speaker 1: headed again, because no matter how they want to read
Speaker 1: the Constitution theoretically, the reality is we are in. The
Speaker 1: reality is we do have weapons of mass destruction out
Speaker 1: on the street. In terms of these a R fifty
Speaker 1: seven's going into schools. We have women who need a
Speaker 1: right to privacy to seek medical care. And so when
Speaker 1: the Court gets in a position where it is not
Speaker 1: understanding the time in which it's living, it does itself
Speaker 1: political damage because this is illegal but also a political institution. Rick,
Speaker 1: Democrats never seem to care enough about the Supreme Court
Speaker 1: when they're voting, unlike Republicans. Will it be any different
Speaker 1: in the midterms, particularly the abortion ruling. Will it impact
Speaker 1: voting or is it going to be you know, it's
Speaker 1: just the economy stupid, you know, I think it could
Speaker 1: impact the elections in the sense of driving vote Democrats
Speaker 1: have had an intensity problem. Uh, And this is a reminder,
Speaker 1: a very blatant reminder that elections have consequences. That that
Speaker 1: that that the court they have now that are rendering
Speaker 1: decisions that they disagree with as Democrats, is as a
Speaker 1: result of a political decision that Americans may install Donald
Speaker 1: Trump president United States. And so that could actually be
Speaker 1: a motivating factor for for Democrats in the mid term. Uh.
Speaker 1: The downside is, uh, it's also exciting for Republicans who
Speaker 1: are the beneficiary of these decisions to say, look at
Speaker 1: we're actually finally getting what we want out of the
Speaker 1: Supreme Court because we turned out to vote and won
Speaker 1: an election. So, Jenny, it's still called the Roberts call
Speaker 1: because the Court, because he is the Chief Justice. But
Speaker 1: you know, you read article after article talking about how
Speaker 1: he's lost control. I mean, and you know, we have
Speaker 1: to really acknowledge the fact that he may have gotten
Speaker 1: to overturning eventually, but not right away because he's an incrementalist,
Speaker 1: so the other Conservatives are moving so quickly. Is there
Speaker 1: anything he can do. He's in a tough position. I know,
Speaker 1: I've been looking at some of these articles, and to
Speaker 1: your point, there's been many talking about how he's lost control.
Speaker 1: I think that's a bit of an overstatement. You know,
Speaker 1: he gained control in terms of becoming the this the
Speaker 1: swing vote on the court in so he's had that
Speaker 1: control for exactly two years, even though he's been Chief
Speaker 1: Justice since so five. So it's been a quick a
Speaker 1: wink that he's had control in terms of being the
Speaker 1: most important voice on the court in terms of dictating decisions.
Speaker 1: That said, his incremental you know, ability to move the
Speaker 1: court incrementally, that probably has been lost until in the
Speaker 1: nless we see some personnel change on the court, or
Speaker 1: if somebody has a change of mind or a change
Speaker 1: of heart. But I do think it's a bit of
Speaker 1: an overstatement to say he's lost the court. A chief
Speaker 1: justice is a first among equals, but it's really the
Speaker 1: swing vote that had the power on the court. And
Speaker 1: he doesn't have that. He had it for two years.
Speaker 1: He doesn't have it right now. Rick. So, there are
Speaker 1: things that can be done about the Supreme Court. It
Speaker 1: can be increased in sized, it can be stripped of
Speaker 1: its jurisdiction over certain issues. It can it can be
Speaker 1: required to have a supermajority on certain issues. So, but
Speaker 1: will anything be done? It seems as if Joe Biden
Speaker 1: his administration is not willing to even consider any steps
Speaker 1: moving any legislation this way. Yeah, it's it's a little
Speaker 1: interesting because, um, this has been an administration is for
Speaker 1: a swung for the fences on a lot of issues
Speaker 1: where they didn't necessarily have even their base of their
Speaker 1: party in the Senate on board and in the House
Speaker 1: in some cases. But this is a practical consideration. They
Speaker 1: do not have the votes in the Senate to make
Speaker 1: any kind of structural change to the Supreme Court. You
Speaker 1: need sixty votes. They don't even have the fifty senators
Speaker 1: on the Democratic Caucus willing to tow the line on this.
Speaker 1: And so it's a it's a it's an academic conversation
Speaker 1: until there are significant changes in the electoral landscape. And
Speaker 1: right now, I mean Republicans probably have as much an
Speaker 1: advantage as Democrats due to try to get to that
Speaker 1: magic sixty number on anything dealing with the courts. You know, Genie,
Speaker 1: what surprised me recently is you didn't used to hear
Speaker 1: talk about impeaching justices, but lately since there has been
Speaker 1: talk about how Justice uh Justice Kavanaugh, you know, allegedly
Speaker 1: will say Lie did his confirmation hearing, Susan centator Susan
Speaker 1: Collins says he told her something different about Row. We
Speaker 1: heard Neil Gorsitch and we basically all the justices at
Speaker 1: their confirmation hearings have said that Row was settled precedent.
Speaker 1: So what about this? What do you make of the
Speaker 1: talk about impeaching a justice, Not that it would ever happen,
Speaker 1: but just the fact that the talk is happening. Yeah,
Speaker 1: it's been striking to me. Um. You know, I don't
Speaker 1: believe that these are inpeachable offenses myself. I think they'd
Speaker 1: have a very hard time making that case. I do
Speaker 1: think it comes from a sense of frustration, particularly amongst Democrats, understandably,
Speaker 1: and I think one thing Democrats have to be very
Speaker 1: careful of is this sort of disjointed response. You know,
Speaker 1: I thought the response might be a bit more coherent.
Speaker 1: It's been a bit disjointed. So you hear a lot
Speaker 1: of fundraising, a lot of get out the vote, but
Speaker 1: from the base you hear a frustration, particularly young people
Speaker 1: who I talked to a lot, who say, we did
Speaker 1: get out to vote, we did elect Democrats and we're
Speaker 1: still here. So they really want a coherent approach to
Speaker 1: this from the administration, from Democrats, and that's one thing
Speaker 1: I hope they sort of get behind um again. I
Speaker 1: haven't heard that coherent approach yet, and I think it's
Speaker 1: a danger for Democrats. But in terms of impeachment, I
Speaker 1: don't think these are impeachable offenses. I do think it's
Speaker 1: a time for us to revisit how the Senate Judiciary
Speaker 1: Committee and Senates whole gives advice and consent on these
Speaker 1: confirmations and these nominations. It's been so interesting. Thanks so
Speaker 1: much both of you for joining me here. That's Bloomberg
Speaker 1: Politics contributors Rick Davis and Jeanie Janzano. And that's it
Speaker 1: for this edition of Sound On. Joe Matthew will be back.
Speaker 1: I'm June Grosso coming up Daybreak Asia. This is Bloomberg,