1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,880 --> 00:00:11,000 Speaker 1: It's a war man. 3 00:00:11,320 --> 00:00:15,080 Speaker 2: That's Todd Blanche, the second in command at the Justice Department, 4 00:00:15,400 --> 00:00:19,920 Speaker 2: saying the department is at war with federal judges. Blanche 5 00:00:19,960 --> 00:00:24,599 Speaker 2: echoed President Donald Trump and Attorney General Pam Bondi's attacks 6 00:00:24,680 --> 00:00:29,000 Speaker 2: on so called rogue judges who handed down decisions against 7 00:00:29,040 --> 00:00:30,200 Speaker 2: the Trump administration. 8 00:00:30,640 --> 00:00:36,400 Speaker 1: These activist judges that they have a RoboN, but they 9 00:00:36,440 --> 00:00:40,960 Speaker 1: are more political, or certainly as political as the most 10 00:00:41,000 --> 00:00:42,560 Speaker 1: liberal governor of da. 11 00:00:42,680 --> 00:00:46,960 Speaker 2: The Deputy Attorney General, who was formerly Trump's lawyer, defended 12 00:00:47,000 --> 00:00:51,520 Speaker 2: the Justice Department against claims of weaponization, but then urged 13 00:00:51,600 --> 00:00:54,840 Speaker 2: young lawyers to join the war against judges. 14 00:00:55,280 --> 00:01:00,160 Speaker 1: There has got to be a couple dozen young lawyers 15 00:01:00,280 --> 00:01:04,360 Speaker 1: who are thirsty and hungry and ready to work because 16 00:01:04,360 --> 00:01:06,559 Speaker 1: we need you, because it is a war. 17 00:01:07,000 --> 00:01:10,280 Speaker 2: A group of retired federal judges is warning that the 18 00:01:10,400 --> 00:01:14,199 Speaker 2: language Blanche used poses a grave threat to the rule 19 00:01:14,240 --> 00:01:17,520 Speaker 2: of law and the judiciary joining me from the Article 20 00:01:17,520 --> 00:01:21,200 Speaker 2: three coalition is Judge Johnny Jones, the third. He was 21 00:01:21,240 --> 00:01:24,720 Speaker 2: appointed by George W. Bush and served for two decades 22 00:01:24,800 --> 00:01:28,760 Speaker 2: on the US District Court for the Middle District of Pennsylvania. 23 00:01:29,040 --> 00:01:33,000 Speaker 2: Judge Jones, First, your reaction to the Deputy Attorney General 24 00:01:33,120 --> 00:01:37,400 Speaker 2: saying that the Justice Department is at war with the judiciary. 25 00:01:37,959 --> 00:01:41,679 Speaker 3: I think that the comment is at minimum men opportunity, 26 00:01:41,680 --> 00:01:45,480 Speaker 3: and I think writ large, it's grossly irresponsible for the 27 00:01:45,560 --> 00:01:50,560 Speaker 3: number two individual at the Department of Justice to characterize 28 00:01:50,920 --> 00:01:55,240 Speaker 3: anything involving the federal judiciary as a war at war 29 00:01:55,280 --> 00:01:59,520 Speaker 3: against so called rogue judges. It is highly problematic and 30 00:02:00,040 --> 00:02:02,800 Speaker 3: I think it's causing a great deal of consternation among 31 00:02:03,000 --> 00:02:06,320 Speaker 3: the judiciary, not just active judges, but retired judges as well. 32 00:02:06,760 --> 00:02:10,520 Speaker 2: He said, we have judges literally telling the president the 33 00:02:10,600 --> 00:02:13,600 Speaker 2: executive what he can and cannot do. We have seen 34 00:02:13,720 --> 00:02:16,560 Speaker 2: judges not following the law on the Constitution, and he 35 00:02:16,680 --> 00:02:19,240 Speaker 2: said they have a row bomb. But they are more political, 36 00:02:19,360 --> 00:02:22,600 Speaker 2: or certainly as political as the most liberal governor or 37 00:02:22,720 --> 00:02:24,480 Speaker 2: da Well. 38 00:02:24,360 --> 00:02:27,800 Speaker 3: June, here's a newsflash. That's exactly what judges are supposed 39 00:02:27,840 --> 00:02:30,240 Speaker 3: to do, is say what the law is. They've been 40 00:02:30,240 --> 00:02:34,400 Speaker 3: interpreting the law, of course since Marbury versus Madison, and 41 00:02:34,880 --> 00:02:38,280 Speaker 3: I think he's protesting too much. What he's really striking 42 00:02:38,280 --> 00:02:41,399 Speaker 3: out against our decisions that are in the judges view 43 00:02:41,440 --> 00:02:45,480 Speaker 3: in accordance with the law and legal precedent. Simply because 44 00:02:45,520 --> 00:02:48,640 Speaker 3: you disagree with the decision doesn't mean that you're at 45 00:02:48,680 --> 00:02:52,120 Speaker 3: war with the judge who made the call. The government 46 00:02:52,160 --> 00:02:55,240 Speaker 3: is fully able to exercise its appellate rights, and in 47 00:02:55,280 --> 00:02:58,280 Speaker 3: fact they have in any number of these cases. So 48 00:02:58,880 --> 00:03:02,160 Speaker 3: you know, to say that judges are political simply because 49 00:03:02,160 --> 00:03:04,760 Speaker 3: they rendered a decision that you don't agree with is 50 00:03:04,800 --> 00:03:08,600 Speaker 3: really a baseless allegation. I guess red meat if you will, 51 00:03:08,720 --> 00:03:13,680 Speaker 3: for the conservative lawyers in the federalist society, But I 52 00:03:13,680 --> 00:03:17,040 Speaker 3: would suspect that a lot of those lawyers entertained, though 53 00:03:17,080 --> 00:03:18,760 Speaker 3: they may have been no better. 54 00:03:19,320 --> 00:03:22,760 Speaker 2: So his target was sort of on the district court judges, 55 00:03:22,880 --> 00:03:26,200 Speaker 2: the trial court level, and he said that when it 56 00:03:26,240 --> 00:03:29,400 Speaker 2: gets to the Supreme Court, the Supreme Court has reversed 57 00:03:29,400 --> 00:03:31,840 Speaker 2: them except for one or two times, which is true. 58 00:03:31,919 --> 00:03:35,640 Speaker 2: But that assumes that the conservative majority on the Supreme 59 00:03:35,800 --> 00:03:39,280 Speaker 2: Court is right and the federal district judges are wrong. 60 00:03:39,640 --> 00:03:43,120 Speaker 2: And these decisions were all made on the emergency docket 61 00:03:43,200 --> 00:03:45,880 Speaker 2: without full briefing or oral arguments. 62 00:03:46,200 --> 00:03:48,480 Speaker 3: Well, a couple of things I'd say about that there 63 00:03:48,520 --> 00:03:51,800 Speaker 3: are far more decisions that are standing than ones that 64 00:03:51,840 --> 00:03:54,480 Speaker 3: are appealed to the Supreme Court. As you know, that 65 00:03:54,640 --> 00:03:57,360 Speaker 3: court has a discretionary docket. So some of these lower 66 00:03:57,360 --> 00:04:01,080 Speaker 3: court decisions have stood up simply because the Supreme Court 67 00:04:01,120 --> 00:04:03,960 Speaker 3: hasn't taken them. Now, it is noteworthy that the Supreme 68 00:04:03,960 --> 00:04:07,000 Speaker 3: Court has placed on its emergency dock at a number 69 00:04:07,280 --> 00:04:10,600 Speaker 3: of different cases. And yes, the government has been successful. 70 00:04:10,920 --> 00:04:13,880 Speaker 3: I don't know that it's necessary under the circumstances for 71 00:04:14,040 --> 00:04:16,760 Speaker 3: mister blanche, you know, to be a sore winner and 72 00:04:16,880 --> 00:04:19,880 Speaker 3: do a sort of victory dance about that and castigate 73 00:04:19,920 --> 00:04:22,479 Speaker 3: lower court judges. You know, the Supreme Court gets the 74 00:04:22,480 --> 00:04:25,400 Speaker 3: final word on these cases. But I can go over 75 00:04:25,480 --> 00:04:28,200 Speaker 3: any number of cases that district courts have heard and 76 00:04:28,279 --> 00:04:32,240 Speaker 3: have indicated that those decisions are in accordance with precedent 77 00:04:32,320 --> 00:04:35,480 Speaker 3: and the law under the circumstances. You know, these are 78 00:04:35,520 --> 00:04:38,680 Speaker 3: close questions in some cases as well. But again, this 79 00:04:38,800 --> 00:04:43,120 Speaker 3: sort of sore winner thing is pretty wearying and unbecoming. Again, 80 00:04:43,160 --> 00:04:46,240 Speaker 3: I'd say the Department of Justice that I knew and 81 00:04:46,440 --> 00:04:49,599 Speaker 3: worked with was very professional during my nearly two decades 82 00:04:49,640 --> 00:04:50,559 Speaker 3: on the federal bench. 83 00:04:51,080 --> 00:04:55,120 Speaker 2: The number of threats against federal judges have skyrocketed. As 84 00:04:55,160 --> 00:04:57,320 Speaker 2: you know, what does it do when you have the 85 00:04:57,360 --> 00:05:00,240 Speaker 2: second in command saying things like this, saying, you know, 86 00:05:00,279 --> 00:05:04,120 Speaker 2: we're at war, saying that judges are not following the law, 87 00:05:04,160 --> 00:05:07,359 Speaker 2: They're not following what the Supreme Court says. What's the 88 00:05:07,440 --> 00:05:10,599 Speaker 2: effect when the general public, who may not know about 89 00:05:10,640 --> 00:05:14,719 Speaker 2: the underlying cases, here's something like that from the number 90 00:05:14,760 --> 00:05:16,880 Speaker 2: two person at Justice. 91 00:05:17,360 --> 00:05:19,400 Speaker 3: Well, you have to take it in concert June with 92 00:05:19,640 --> 00:05:23,560 Speaker 3: what's been happening for this entire year since January twentieth, 93 00:05:23,600 --> 00:05:26,280 Speaker 3: which is that judges are being singled out by name, 94 00:05:26,360 --> 00:05:29,720 Speaker 3: their families are being singled out, they're being docksed. Anybody 95 00:05:29,760 --> 00:05:32,520 Speaker 3: can find the location of a judge, even though there's 96 00:05:32,520 --> 00:05:36,919 Speaker 3: been legislation to redact and hide some of their personal information. 97 00:05:37,240 --> 00:05:39,960 Speaker 3: And I think fairly judges are frightened. It puts a 98 00:05:40,000 --> 00:05:44,120 Speaker 3: bullseye on judges. And you correctly cite the US Martial 99 00:05:44,200 --> 00:05:48,200 Speaker 3: Service as indicated that threats against judges there were five 100 00:05:48,279 --> 00:05:51,039 Speaker 3: hundred plus bona fide threats in the last fiscal year, 101 00:05:51,320 --> 00:05:54,599 Speaker 3: and they're growing exponentially. I've always said that, you know, 102 00:05:54,600 --> 00:05:56,960 Speaker 3: there are a lot of people that disagree with judges' decisions. 103 00:05:57,000 --> 00:05:59,880 Speaker 3: That's the nature of the business. But it's that small 104 00:06:00,080 --> 00:06:02,960 Speaker 3: percentage of unbalanced people who kind of hear this as 105 00:06:02,960 --> 00:06:07,080 Speaker 3: a dog whistle. And I have said for years, because 106 00:06:07,080 --> 00:06:09,120 Speaker 3: of this employmentatory rhetoric, that we're going to get a 107 00:06:09,160 --> 00:06:11,680 Speaker 3: judge hurt or killed. You need only look back at 108 00:06:11,800 --> 00:06:15,279 Speaker 3: my former colleague, Ester Sallus's tragedy. You know where son 109 00:06:15,360 --> 00:06:18,720 Speaker 3: Danny was shot and killed back in twenty twenty. I 110 00:06:18,760 --> 00:06:21,119 Speaker 3: fear that's going to happen again if we don't dial 111 00:06:21,160 --> 00:06:25,080 Speaker 3: down the rhetoric again. This goes to the irresponsibility of 112 00:06:25,120 --> 00:06:28,200 Speaker 3: mister Blanche's comments. We need to level set here instead 113 00:06:28,240 --> 00:06:29,080 Speaker 3: of making it worse. 114 00:06:29,440 --> 00:06:33,200 Speaker 2: And to put this in context, these weren't casual remarks 115 00:06:33,480 --> 00:06:37,720 Speaker 2: because we've heard similar remarks from the Attorney General Pam Bondy. 116 00:06:38,080 --> 00:06:42,360 Speaker 2: She's actually called out individual judges by name for their decisions, 117 00:06:42,760 --> 00:06:45,960 Speaker 2: and of course so has President Trump. Is there some 118 00:06:46,080 --> 00:06:49,280 Speaker 2: kind of strategy at play here by the Justice Department? 119 00:06:49,320 --> 00:06:51,080 Speaker 2: Are they trying to scare judges? 120 00:06:51,400 --> 00:06:52,159 Speaker 4: What's at play? 121 00:06:52,560 --> 00:06:54,919 Speaker 3: Well, if they're trying to scare judges, that won't work 122 00:06:55,040 --> 00:06:58,600 Speaker 3: because I think fairly my friends and former colleagues and 123 00:06:58,640 --> 00:07:01,880 Speaker 3: the judiciary are not easily frightened. Sure, I mean there 124 00:07:01,880 --> 00:07:04,599 Speaker 3: may be a motivation to have them look over their shoulders. 125 00:07:05,000 --> 00:07:07,760 Speaker 3: I think what it is is it tears down the 126 00:07:07,800 --> 00:07:11,480 Speaker 3: integrity of the judicial system. All three branches, I think, 127 00:07:11,520 --> 00:07:15,320 Speaker 3: at bottom, have a responsibility to uphold the integrity of 128 00:07:15,600 --> 00:07:19,679 Speaker 3: their existence as coequal branches of government. We are seeing 129 00:07:19,960 --> 00:07:25,200 Speaker 3: this unitary president going wild. Now there's another problem here, June, 130 00:07:25,440 --> 00:07:29,080 Speaker 3: and I think it's that we are losing any line 131 00:07:29,120 --> 00:07:32,280 Speaker 3: of distinction between the President and the Department of Justice. 132 00:07:32,320 --> 00:07:35,120 Speaker 3: Of course, not naive. There's always some interaction between the 133 00:07:35,120 --> 00:07:38,120 Speaker 3: President and the Department of Justice, but they've almost become 134 00:07:38,200 --> 00:07:41,200 Speaker 3: one and the same, which I think is truly troubling. 135 00:07:41,280 --> 00:07:42,240 Speaker 5: So this is the. 136 00:07:42,240 --> 00:07:45,760 Speaker 3: Number two man, and in fact the Attorney General doing 137 00:07:45,800 --> 00:07:47,640 Speaker 3: the bidding for the President of the United States and 138 00:07:47,680 --> 00:07:52,559 Speaker 3: simply parroting his view of federal judges and carrying out 139 00:07:52,760 --> 00:07:55,920 Speaker 3: We know this now because we've seen some of the 140 00:07:55,920 --> 00:07:58,120 Speaker 3: things that the President has written and thought that he 141 00:07:58,240 --> 00:08:01,080 Speaker 3: was playing to an audience of for example General Bondi 142 00:08:01,480 --> 00:08:06,000 Speaker 3: and instructing them to prosecute people. I think my conservative 143 00:08:06,080 --> 00:08:08,880 Speaker 3: lawyer friends, you know, for example, who listened to Todd 144 00:08:09,040 --> 00:08:11,800 Speaker 3: Blanche ought to be careful what they wish for, because 145 00:08:11,840 --> 00:08:14,440 Speaker 3: in a world like that, I don't think anybody is 146 00:08:14,440 --> 00:08:15,520 Speaker 3: particularly safe. 147 00:08:15,800 --> 00:08:19,640 Speaker 2: And Blanche denied that the Justice Department was being weaponized, 148 00:08:20,000 --> 00:08:23,600 Speaker 2: and he said the Department was weaponized before during the 149 00:08:23,640 --> 00:08:30,679 Speaker 2: Biden administration. Then he talked about the prosecutions of President Trump. However, 150 00:08:30,720 --> 00:08:34,800 Speaker 2: he did not mention that the current Justice Department is 151 00:08:34,920 --> 00:08:40,520 Speaker 2: prosecuting former FBI Director James Comey and New York Attorney 152 00:08:40,559 --> 00:08:41,920 Speaker 2: General Letitia James. 153 00:08:42,480 --> 00:08:45,080 Speaker 3: By response to that, June is there was a statement 154 00:08:45,120 --> 00:08:48,320 Speaker 3: baded by the New York Bar Association criticizing Blanche and 155 00:08:48,400 --> 00:08:51,520 Speaker 3: his response was lol to that, well, my response to 156 00:08:51,559 --> 00:08:54,880 Speaker 3: what mister Blanche said about weaponization is LOL. You know, 157 00:08:54,960 --> 00:08:58,320 Speaker 3: it's the same thing. If this isn't weaponizing the Justice Department. 158 00:08:58,400 --> 00:09:01,680 Speaker 3: You know, people may disagree or agree about weaponization during 159 00:09:01,720 --> 00:09:04,319 Speaker 3: the Biden administration. I'm talking about the here and now. 160 00:09:04,640 --> 00:09:07,360 Speaker 3: I don't think we've seen a stark a weaponization of 161 00:09:07,400 --> 00:09:11,520 Speaker 3: the Department of Justice ever. Think about the DOJ as 162 00:09:11,520 --> 00:09:15,840 Speaker 3: it participated in the efforts the executive orders against law firms. 163 00:09:16,000 --> 00:09:18,880 Speaker 3: They litigated those cases. You know, it was lawyer on 164 00:09:19,000 --> 00:09:22,760 Speaker 3: lawyer through that. You know, think about mister Blanche traveling 165 00:09:22,880 --> 00:09:26,720 Speaker 3: to federal prison to see Elaine Maxwell and getting a 166 00:09:26,760 --> 00:09:29,760 Speaker 3: statement from her. We know now that he probably had 167 00:09:29,800 --> 00:09:34,400 Speaker 3: access to emails that directly contradicted what she apparently told him, 168 00:09:34,920 --> 00:09:38,040 Speaker 3: looking like every bit the president's personal lawyer instead of 169 00:09:38,040 --> 00:09:40,840 Speaker 3: the number two man at Justice. I mean, we're in 170 00:09:40,880 --> 00:09:43,720 Speaker 3: a world that is vastly different than anything I've ever 171 00:09:43,800 --> 00:09:47,400 Speaker 3: seen in terms of the interaction between the Justice Department 172 00:09:47,480 --> 00:09:49,440 Speaker 3: and the courts. When I was a judge, by the way, 173 00:09:49,480 --> 00:09:52,520 Speaker 3: you know, I thought federal judges had pretty enormous power 174 00:09:52,880 --> 00:09:56,319 Speaker 3: to be used very sparingly and carefully. We're now living 175 00:09:56,360 --> 00:09:59,320 Speaker 3: in a time when essentially the President of the United 176 00:09:59,320 --> 00:10:02,000 Speaker 3: States and the depart and a justice they're saying, in 177 00:10:02,040 --> 00:10:05,920 Speaker 3: as many words, just disregard district court judgments. They're not worth, 178 00:10:06,000 --> 00:10:08,840 Speaker 3: you know, the electronic ink that's being used to render them. 179 00:10:08,960 --> 00:10:12,240 Speaker 3: I don't think that that's helpful or appropriate in any 180 00:10:12,280 --> 00:10:15,760 Speaker 3: way in terms of integrity of the third branch of government. 181 00:10:16,080 --> 00:10:19,520 Speaker 2: He didn't just attack judges. He also attacked the bar associations, 182 00:10:19,559 --> 00:10:23,920 Speaker 2: and he vowed to take away the bar association's oversight power. 183 00:10:24,240 --> 00:10:27,480 Speaker 2: Now complaints have been filed against Justice Department lawyers with 184 00:10:27,679 --> 00:10:31,920 Speaker 2: bar associations, but does the Justice Department have any power 185 00:10:31,960 --> 00:10:32,360 Speaker 2: over that. 186 00:10:33,000 --> 00:10:36,079 Speaker 3: I confess June to confusion as well about how that 187 00:10:36,200 --> 00:10:39,679 Speaker 3: could be accomplished, because you're a member of a bar association, 188 00:10:40,200 --> 00:10:43,520 Speaker 3: and for example, the Pennsylvania Bar Association police is its 189 00:10:43,559 --> 00:10:46,200 Speaker 3: own and they can suspend you on the Supreme Court 190 00:10:46,200 --> 00:10:49,240 Speaker 3: of Pennsylvania can get involved and suspend your right to 191 00:10:49,280 --> 00:10:51,640 Speaker 3: practice for a period, or they can disbar you. So 192 00:10:51,960 --> 00:10:54,160 Speaker 3: good luck with that. You know. Not only is it 193 00:10:54,320 --> 00:10:57,480 Speaker 3: I think an overreach from a rhetorical standpoint, but I 194 00:10:57,520 --> 00:10:59,319 Speaker 3: think it's it's mission impossible. 195 00:11:00,000 --> 00:11:03,000 Speaker 2: That's why the Article three coalition decided it had to 196 00:11:03,200 --> 00:11:06,160 Speaker 2: issue a warning about Blanche's statements. 197 00:11:06,440 --> 00:11:10,160 Speaker 3: This is something that we feel in unanimity that is 198 00:11:10,360 --> 00:11:14,160 Speaker 3: really injurious to the rule of law. And you know, 199 00:11:14,200 --> 00:11:17,760 Speaker 3: if you can get fifty retired judges, you know, thoughtful 200 00:11:17,960 --> 00:11:21,440 Speaker 3: appointed by different presidents, folks at different viewpoints, going the 201 00:11:21,440 --> 00:11:24,920 Speaker 3: same direction like this, you've got something that is really 202 00:11:25,080 --> 00:11:28,120 Speaker 3: really problematic. And you know, I was proud to join 203 00:11:28,160 --> 00:11:31,000 Speaker 3: that group. I fear it's going to get worse before 204 00:11:31,000 --> 00:11:33,040 Speaker 3: it gets better, and that's really troubling. 205 00:11:33,440 --> 00:11:36,840 Speaker 2: Thanks so much, Judge Jones for sharing your insights and 206 00:11:36,920 --> 00:11:40,680 Speaker 2: concerns with us. That's Judge John E. Jones the third 207 00:11:40,920 --> 00:11:45,160 Speaker 2: coming up next, another setback for transgender rights at the 208 00:11:45,200 --> 00:11:48,960 Speaker 2: Supreme Court. I'm June Grosso and you're listening to Bloomberg. 209 00:11:50,040 --> 00:11:53,160 Speaker 2: It's the twenty fourth win for the Trump administration and 210 00:11:53,240 --> 00:11:57,080 Speaker 2: the second blow to transgender rights on the Supreme Court's 211 00:11:57,160 --> 00:12:00,439 Speaker 2: emergency docket in the last six months. It was a 212 00:12:00,520 --> 00:12:04,720 Speaker 2: vote down ideological lines, and the Court's conservatives are allowing 213 00:12:04,760 --> 00:12:09,040 Speaker 2: the Trump administration to require that passports be marked with 214 00:12:09,120 --> 00:12:12,480 Speaker 2: a person's sex assigned at birth. This is a reversal 215 00:12:12,559 --> 00:12:15,760 Speaker 2: of the policy that's been in place since nineteen ninety two, 216 00:12:16,080 --> 00:12:20,480 Speaker 2: which allowed passports to reflect a person's gender identity. But 217 00:12:20,679 --> 00:12:23,880 Speaker 2: President Trump made it clear when he was campaigning that 218 00:12:23,960 --> 00:12:26,440 Speaker 2: he would reverse transgender rights. 219 00:12:26,720 --> 00:12:28,920 Speaker 6: With a stroke of my pen on day one. We're 220 00:12:28,960 --> 00:12:37,680 Speaker 6: going to stop the transgender lunacy, and I will sign 221 00:12:38,080 --> 00:12:44,040 Speaker 6: executive orders to end child sexual mutilation, get transgender out 222 00:12:44,040 --> 00:12:47,679 Speaker 6: of the military and out of our elementary schools, at 223 00:12:47,720 --> 00:12:49,120 Speaker 6: middle schools and high. 224 00:12:48,960 --> 00:12:53,080 Speaker 2: School And back in May, when Trump issued a transgender 225 00:12:53,160 --> 00:12:58,240 Speaker 2: military ban, the Supreme Court's conservatives allowed him to discharge 226 00:12:58,280 --> 00:13:01,679 Speaker 2: thousands of transgender some of US members who've been serving 227 00:13:01,840 --> 00:13:06,160 Speaker 2: openly for years. My guest is Suzanne Goldberg, a professor 228 00:13:06,240 --> 00:13:10,000 Speaker 2: at Columbia Law School and director of the school Sexuality 229 00:13:10,040 --> 00:13:13,800 Speaker 2: and Gender Law Clinic. Suzan, will you explain the change 230 00:13:13,800 --> 00:13:16,680 Speaker 2: in passport policy by the Trump administration. 231 00:13:17,360 --> 00:13:22,239 Speaker 4: For thirty three years, across six presidential administrations, transgender Americans 232 00:13:22,240 --> 00:13:26,040 Speaker 4: have been able to get US passports with their gender 233 00:13:26,120 --> 00:13:30,559 Speaker 4: marker that accurately matches their gender identity. So transgender man 234 00:13:30,600 --> 00:13:33,560 Speaker 4: can get M on his passport and a transgender woman 235 00:13:33,600 --> 00:13:37,200 Speaker 4: can get AS on her passport, which is important for 236 00:13:37,440 --> 00:13:40,520 Speaker 4: many reasons, including so that the person looks like they 237 00:13:40,559 --> 00:13:44,480 Speaker 4: match their passports. From basically nineteen ninety two to twenty ten, 238 00:13:45,160 --> 00:13:49,720 Speaker 4: there was an eligibility requirement related to a surgical transition 239 00:13:50,559 --> 00:13:54,440 Speaker 4: that has changed over time. The point is, for thirty 240 00:13:54,440 --> 00:13:56,720 Speaker 4: three years this has been the same. But on the 241 00:13:56,720 --> 00:14:00,959 Speaker 4: first day of his administration, Donald Trump is an executive 242 00:14:01,080 --> 00:14:05,600 Speaker 4: order saying that transgender people are corrosive to the United States. 243 00:14:05,640 --> 00:14:08,080 Speaker 4: In so many words, he used the word corrosive and 244 00:14:08,360 --> 00:14:12,480 Speaker 4: directing the State Department to no longer issue passports to 245 00:14:12,600 --> 00:14:15,719 Speaker 4: people that would be consistent with their gender identity. If 246 00:14:15,720 --> 00:14:19,960 Speaker 4: they're transgender, and so the Trump executive order led the 247 00:14:20,000 --> 00:14:24,000 Speaker 4: State Department to take two steps, first to stop issuing 248 00:14:24,360 --> 00:14:28,600 Speaker 4: passports to transgender people consistent with their gender identity, and 249 00:14:28,760 --> 00:14:32,080 Speaker 4: second to remove the ex gender marker, which was an 250 00:14:32,080 --> 00:14:35,640 Speaker 4: option for anyone who does not fit the M or 251 00:14:35,680 --> 00:14:38,200 Speaker 4: the F or someone who doesn't want to share their 252 00:14:38,280 --> 00:14:42,320 Speaker 4: gender identity with the US government. So, put into a 253 00:14:42,360 --> 00:14:46,160 Speaker 4: simple terms, the Trump administration changed policy on the first 254 00:14:46,240 --> 00:14:49,120 Speaker 4: day of the administration and the State Department followed two 255 00:14:49,200 --> 00:14:54,880 Speaker 4: days later to prevent transgender Americans from obtaining passports consistent 256 00:14:54,920 --> 00:14:56,080 Speaker 4: with their gender identity. 257 00:14:56,360 --> 00:15:00,360 Speaker 2: This was an unsigned order and the Conservative justices very 258 00:15:00,520 --> 00:15:04,280 Speaker 2: short explanation seems to me like it's ignoring the facts 259 00:15:04,360 --> 00:15:07,920 Speaker 2: that were presented in the case. The Justice has said 260 00:15:08,360 --> 00:15:12,160 Speaker 2: displaying passport holders sex at births no more offense equal 261 00:15:12,240 --> 00:15:16,760 Speaker 2: protection principles than displaying their country of births. In both cases, 262 00:15:16,800 --> 00:15:21,200 Speaker 2: the government is merely attesting to historical fact without subjecting 263 00:15:21,280 --> 00:15:23,160 Speaker 2: anyone to differential treatment. 264 00:15:23,800 --> 00:15:28,960 Speaker 4: It is stunning because the plaintiffs in the case explained 265 00:15:29,000 --> 00:15:31,920 Speaker 4: to the district court, which agreed as did the Court 266 00:15:31,960 --> 00:15:35,880 Speaker 4: of Appeals, that if you are a transgender man and 267 00:15:35,960 --> 00:15:39,040 Speaker 4: you have a passport that says f on it, it 268 00:15:39,280 --> 00:15:44,040 Speaker 4: does have real world harmful consequences every time you have 269 00:15:44,080 --> 00:15:47,240 Speaker 4: to show that passport to someone, because the person receiving 270 00:15:47,240 --> 00:15:50,800 Speaker 4: the passport may say, as has happened to some of 271 00:15:50,840 --> 00:15:55,320 Speaker 4: the plaintiffs, you're using fraudulent documents because you don't appear 272 00:15:55,400 --> 00:15:59,040 Speaker 4: to match your passport gender marker. So this has led 273 00:15:59,040 --> 00:16:02,560 Speaker 4: to some of the plaintiffs being accused of fraud, one 274 00:16:02,560 --> 00:16:06,040 Speaker 4: of the plaintiffs being strip searched, other plaintifsts facing all 275 00:16:06,080 --> 00:16:09,120 Speaker 4: sorts of problems as they've tried to cross borders. So, 276 00:16:09,280 --> 00:16:12,760 Speaker 4: for one, the Supreme Court's kind of casual remark that 277 00:16:12,880 --> 00:16:17,080 Speaker 4: this is as insignificant as somebody's sort of national origin 278 00:16:17,360 --> 00:16:22,080 Speaker 4: arch place of citizenship is just untrue. In addition, the 279 00:16:22,480 --> 00:16:26,400 Speaker 4: country of birth is not anything that affects somebody when 280 00:16:26,400 --> 00:16:29,440 Speaker 4: they're using their passport and passing through security. But the 281 00:16:29,520 --> 00:16:33,320 Speaker 4: gender marker is used to check accuracy, and so even 282 00:16:33,440 --> 00:16:37,600 Speaker 4: on its face, the Supreme Court's analysis is wrong. The 283 00:16:37,640 --> 00:16:40,760 Speaker 4: Supreme Court's description, I can't really call it analysis. The 284 00:16:40,800 --> 00:16:43,920 Speaker 4: Supreme Court statement is wrong, and a dissent for Justice 285 00:16:44,000 --> 00:16:45,440 Speaker 4: Jackson points that out as well. 286 00:16:45,840 --> 00:16:49,280 Speaker 2: The Court also found that the administration is likely to 287 00:16:49,320 --> 00:16:53,560 Speaker 2: win on the merits, and the administration faced irreparable injury. 288 00:16:54,000 --> 00:16:57,240 Speaker 2: I'm not sure where the irreparable injury is since this 289 00:16:57,400 --> 00:17:01,880 Speaker 2: policy is a new one that's changing what's been in place. 290 00:17:02,480 --> 00:17:07,800 Speaker 2: But the conservative justices have found irreparable injury in almost 291 00:17:07,920 --> 00:17:11,520 Speaker 2: all of President Trump's emergency requests. 292 00:17:12,440 --> 00:17:16,760 Speaker 4: There is no irreparable injury in the traditional way that 293 00:17:16,880 --> 00:17:20,280 Speaker 4: courts look at a reparable harm. To let me explain. 294 00:17:20,880 --> 00:17:25,040 Speaker 4: When a statute comes over from Congress and is challenged 295 00:17:25,160 --> 00:17:29,000 Speaker 4: in the court, it is given a presumption of constitutionality 296 00:17:29,359 --> 00:17:32,960 Speaker 4: right to the court assumes it's constitutional, but sometimes plaintiffs 297 00:17:33,000 --> 00:17:35,959 Speaker 4: can show actually it's on constitutional, and the court will 298 00:17:36,000 --> 00:17:39,360 Speaker 4: strike it down. And there's understood to be some arguable 299 00:17:39,359 --> 00:17:42,159 Speaker 4: harm to government when a statute is put on hold. 300 00:17:42,520 --> 00:17:46,080 Speaker 4: But when a government policy is put on hold, like 301 00:17:46,119 --> 00:17:50,360 Speaker 4: an executive order or a preference of the president, that's 302 00:17:50,400 --> 00:17:53,480 Speaker 4: a different situation that is not entitled to the same 303 00:17:53,560 --> 00:17:57,919 Speaker 4: presumption of constitutionality as a statute that has been passed 304 00:17:57,920 --> 00:18:02,040 Speaker 4: by Congress. And the shot is just saying, well, the 305 00:18:02,080 --> 00:18:05,160 Speaker 4: government is irreparably harmed by not being able to put 306 00:18:05,200 --> 00:18:09,280 Speaker 4: in place its desired passport policy is akin to saying 307 00:18:09,760 --> 00:18:13,760 Speaker 4: the government is irreparably harmed whenever it is stopped from 308 00:18:13,800 --> 00:18:16,600 Speaker 4: doing something that it would like to do, And that 309 00:18:16,840 --> 00:18:20,639 Speaker 4: is akin to having no judicial review over government actions 310 00:18:21,040 --> 00:18:24,040 Speaker 4: at all, at least not at this preliminary stage. So 311 00:18:24,080 --> 00:18:27,560 Speaker 4: that's a very serious problem from a sort of basic 312 00:18:27,960 --> 00:18:31,359 Speaker 4: approach to constitutional analysis of executive actions. 313 00:18:31,840 --> 00:18:35,840 Speaker 2: Justice Jackson wrote that the Court has once again paved 314 00:18:35,880 --> 00:18:39,560 Speaker 2: the way for the immediate infliction of injury without adequate 315 00:18:39,880 --> 00:18:44,199 Speaker 2: or really any justification. This is also a pattern of 316 00:18:44,240 --> 00:18:47,960 Speaker 2: the Court at this point basically allowing the Trump administration 317 00:18:48,080 --> 00:18:51,480 Speaker 2: anything it asked for on the emergency docket and saying, well, 318 00:18:51,520 --> 00:18:53,360 Speaker 2: this is while litigation is pending. 319 00:18:53,920 --> 00:18:58,000 Speaker 4: Yes, this is the twenty fourth consecutive grant of emergency 320 00:18:58,040 --> 00:19:03,480 Speaker 4: relief to the government. And this process of the Supreme 321 00:19:03,600 --> 00:19:08,080 Speaker 4: Court staining rulings of lower courts finding constitutional or other 322 00:19:08,200 --> 00:19:12,640 Speaker 4: problems with government policies, this phenomenon of the Supreme Court 323 00:19:12,640 --> 00:19:15,200 Speaker 4: repeatedly saying, oh, we're going to put those lower court 324 00:19:15,240 --> 00:19:20,160 Speaker 4: rulings on hold, has had the effect of basically giving 325 00:19:20,320 --> 00:19:25,720 Speaker 4: the Trump administration a free path to continue enforcing policies 326 00:19:25,960 --> 00:19:29,720 Speaker 4: and taking actions that lower courts have held to be 327 00:19:30,240 --> 00:19:34,880 Speaker 4: not only likely unconstitutional, but also causing irreparable harm to the. 328 00:19:34,800 --> 00:19:36,040 Speaker 3: People who have been affected. 329 00:19:36,400 --> 00:19:39,760 Speaker 4: So this is certainly part of a larger trend. The 330 00:19:39,800 --> 00:19:42,600 Speaker 4: stricond thing about this case is that the harm to 331 00:19:42,720 --> 00:19:46,800 Speaker 4: the individuals who are denied passports that accurately reflect their 332 00:19:46,840 --> 00:19:51,719 Speaker 4: gender identity is stunningly clear. Another problem here is that 333 00:19:51,720 --> 00:19:55,520 Speaker 4: the government is obligated anytime it changes a policy that 334 00:19:55,840 --> 00:20:00,199 Speaker 4: collect information from the American people. The government is obligated 335 00:20:00,400 --> 00:20:04,200 Speaker 4: under the Paperwork Reduction Act, which was passed by Congress, 336 00:20:04,800 --> 00:20:09,159 Speaker 4: to spend sixty days collecting information and public comment on 337 00:20:09,240 --> 00:20:11,719 Speaker 4: whether it can make this sort of a change. And 338 00:20:11,800 --> 00:20:15,600 Speaker 4: of course, changing its passport rule two days after the 339 00:20:15,640 --> 00:20:19,600 Speaker 4: president was inaugurated and issued his executive order is fully 340 00:20:19,640 --> 00:20:22,480 Speaker 4: out of compliance with this law that is supposed to 341 00:20:22,520 --> 00:20:24,399 Speaker 4: apply to all of the government's actions. 342 00:20:24,760 --> 00:20:28,440 Speaker 2: As I mentioned, this order stays in place as a 343 00:20:28,480 --> 00:20:31,959 Speaker 2: litigation below continues. So how much of a blow is 344 00:20:32,000 --> 00:20:34,880 Speaker 2: it to the rights of transgender people? 345 00:20:35,440 --> 00:20:39,520 Speaker 4: This is a tremendous blow in terms of the human cost. 346 00:20:39,720 --> 00:20:43,879 Speaker 4: One only has to think about the named plaintiff, Ashton Orr, 347 00:20:44,200 --> 00:20:47,840 Speaker 4: who needed to travel out of the country, needed a 348 00:20:47,880 --> 00:20:51,359 Speaker 4: new passport. Ashton orders a man. He's a transgender man. 349 00:20:51,600 --> 00:20:54,240 Speaker 4: The only passport he is able to get to cross 350 00:20:54,280 --> 00:20:58,719 Speaker 4: borders has an S gender marker on it that reveals 351 00:20:58,840 --> 00:21:01,520 Speaker 4: Ashton to be transgend and not only as he crosses 352 00:21:01,560 --> 00:21:03,840 Speaker 4: the border out of the United States, but as he 353 00:21:03,920 --> 00:21:07,720 Speaker 4: crosses into other countries, possibly putting him in danger of 354 00:21:08,000 --> 00:21:11,639 Speaker 4: harm from other governments and now as well as our own. 355 00:21:12,000 --> 00:21:16,840 Speaker 4: The harms are very serious, very painful to individuals, and 356 00:21:17,080 --> 00:21:20,320 Speaker 4: also are reflective of a broader harm to people who 357 00:21:20,359 --> 00:21:24,119 Speaker 4: are not transgender, which is that the government can, for 358 00:21:24,480 --> 00:21:28,760 Speaker 4: irrational reasons, possibly hostile reasons, towards this group of people, 359 00:21:29,200 --> 00:21:32,679 Speaker 4: or any group of people more generally, choose to withdraw 360 00:21:32,720 --> 00:21:36,040 Speaker 4: passport right, choose to do any number of things that 361 00:21:36,119 --> 00:21:40,200 Speaker 4: cause harm. And the Supreme Court is unwilling to say 362 00:21:40,200 --> 00:21:42,639 Speaker 4: hold on government. The lower court has found a problem 363 00:21:42,640 --> 00:21:45,840 Speaker 4: with this law or this new policy, and we need 364 00:21:45,880 --> 00:21:48,959 Speaker 4: to hold while this case is being litigated. So there 365 00:21:48,960 --> 00:21:52,120 Speaker 4: are real world problems, there are constitutional problems, There are 366 00:21:52,560 --> 00:21:55,119 Speaker 4: traditional separation of power problems that we're seeing. 367 00:21:55,440 --> 00:21:59,160 Speaker 2: In May, the Supreme Court allowed Trump to discharge transgender 368 00:21:59,200 --> 00:22:03,040 Speaker 2: people serving in the military. In June, the Court upheld 369 00:22:03,080 --> 00:22:06,720 Speaker 2: a Tennessee law that bans gender firming care for minors, 370 00:22:07,119 --> 00:22:10,040 Speaker 2: and now the Court is allowing this passport policy to 371 00:22:10,119 --> 00:22:13,680 Speaker 2: go into effect. In all these cases, the conservatives were 372 00:22:13,680 --> 00:22:17,040 Speaker 2: in the majority and the liberals in descent. It's hard 373 00:22:17,119 --> 00:22:21,080 Speaker 2: to ignore that the Court has been ruling against transgender 374 00:22:21,160 --> 00:22:24,040 Speaker 2: rights at least since a case in twenty twenty. 375 00:22:24,400 --> 00:22:28,240 Speaker 4: Yeah, I mean, there has been a current of policies, 376 00:22:28,600 --> 00:22:32,040 Speaker 4: you know, from the Trump administration and laws at the 377 00:22:32,080 --> 00:22:35,520 Speaker 4: state level that restrict the lives or try to restrict 378 00:22:35,560 --> 00:22:39,400 Speaker 4: the lives of transgender people in every imaginable way, from 379 00:22:39,560 --> 00:22:44,439 Speaker 4: getting identity documents to using the bathroom, to participating fully 380 00:22:44,480 --> 00:22:48,239 Speaker 4: at school, to serving the country in the military, and 381 00:22:48,440 --> 00:22:51,080 Speaker 4: so far, when these issues have been presented, the Court 382 00:22:51,119 --> 00:22:55,520 Speaker 4: has said, it's okay to create this legal barrier. Really 383 00:22:55,560 --> 00:23:00,280 Speaker 4: like a legal burden that harms transgender people. In twenty 384 00:23:00,640 --> 00:23:03,159 Speaker 4: the Court took a different tack. This involved in an 385 00:23:03,200 --> 00:23:06,760 Speaker 4: employment discrimination case. A transgender woman was fired from a 386 00:23:06,840 --> 00:23:08,800 Speaker 4: role at a funeral home where she had served for 387 00:23:08,880 --> 00:23:12,280 Speaker 4: many years, and she sued the employer, saying it was 388 00:23:12,320 --> 00:23:17,240 Speaker 4: sex discrimination that she was treated differently because of her sex, 389 00:23:17,400 --> 00:23:21,360 Speaker 4: being fired based on that. She is transgender, and in 390 00:23:21,400 --> 00:23:25,600 Speaker 4: that case Bostock versus Clayton County, which also involved two 391 00:23:25,640 --> 00:23:30,280 Speaker 4: other cases with sexual orientation discrimination at issue. In that case, 392 00:23:30,359 --> 00:23:34,800 Speaker 4: the court said it is sex discrimination to buyer a 393 00:23:34,920 --> 00:23:38,240 Speaker 4: transgender person because there's no way to understand this other 394 00:23:38,359 --> 00:23:41,480 Speaker 4: than they're being fired because of their sex. One of 395 00:23:41,520 --> 00:23:44,480 Speaker 4: the big questions before the court is that case came 396 00:23:44,560 --> 00:23:47,360 Speaker 4: under Title seven, which is a federal law that prohibits 397 00:23:47,400 --> 00:23:51,320 Speaker 4: sex discrimination as well as other forms of discrimination and employment. 398 00:23:51,760 --> 00:23:54,800 Speaker 4: And a question is whether it's a logic of understanding 399 00:23:54,840 --> 00:23:58,840 Speaker 4: sex discrimination in that Bosstoc ruling from twenty twenty is 400 00:23:58,880 --> 00:24:02,000 Speaker 4: going to carry over to these other areas, or will 401 00:24:02,040 --> 00:24:04,960 Speaker 4: the Court say, as it may appear to be inclined 402 00:24:04,960 --> 00:24:07,960 Speaker 4: to do, oh no, that might be six discrimination, but 403 00:24:08,040 --> 00:24:08,639 Speaker 4: this isn't. 404 00:24:08,840 --> 00:24:12,360 Speaker 2: We'll see if the pattern holds or not, because in January, 405 00:24:12,800 --> 00:24:16,200 Speaker 2: the Court is going to hear arguments on whether states 406 00:24:16,240 --> 00:24:20,480 Speaker 2: can ban transgender girls and women from competing on female 407 00:24:20,600 --> 00:24:24,919 Speaker 2: athletic teams. Thanks so much, Suzanne. That's Columbia Law School 408 00:24:24,920 --> 00:24:29,600 Speaker 2: professor Suzanne Goldberg coming up next. The Conservative Justice is 409 00:24:29,680 --> 00:24:34,560 Speaker 2: appere skeptical of a Rastafarian's religious liberty suit I'm June 410 00:24:34,560 --> 00:24:36,320 Speaker 2: Grosso and you're listening to Bloomberg. 411 00:24:37,840 --> 00:24:40,560 Speaker 7: It is undisputed that my client has alleged an assault 412 00:24:40,600 --> 00:24:45,399 Speaker 7: that is just brazenly illegal. He was at respondent's mercy 413 00:24:45,640 --> 00:24:48,119 Speaker 7: in federally funded custody when he handed them a copy 414 00:24:48,200 --> 00:24:51,359 Speaker 7: of controlling precedent holding that ralupa protected his right to 415 00:24:51,440 --> 00:24:54,439 Speaker 7: keep his hair long. They threw it away, handcuffed him 416 00:24:54,440 --> 00:24:56,119 Speaker 7: to a chair, and shaved him bald. 417 00:24:56,560 --> 00:25:00,320 Speaker 2: Damon Landor is a devout Rustafarian who hadn't cut his 418 00:25:00,400 --> 00:25:04,240 Speaker 2: hair for nearly twenty years, following his faith, in which 419 00:25:04,320 --> 00:25:08,760 Speaker 2: dreadlocks are a sacred symbol. When Landor was transferred to 420 00:25:08,800 --> 00:25:12,280 Speaker 2: a new prison in Louisiana with just weeks left on 421 00:25:12,359 --> 00:25:15,560 Speaker 2: his five month sentence, he handed a prison guard a 422 00:25:15,600 --> 00:25:19,000 Speaker 2: copy of an appeals court decision that held that cutting 423 00:25:19,080 --> 00:25:24,080 Speaker 2: a religious prisoner's dreadlocks violated federal law. The guard threw 424 00:25:24,119 --> 00:25:28,800 Speaker 2: the ruling into the trash, and despite Landor's please, he 425 00:25:28,960 --> 00:25:31,960 Speaker 2: was handcuffed to a chair and held down by two 426 00:25:32,080 --> 00:25:35,560 Speaker 2: guards while a third cut his knee length dreadlocks and 427 00:25:35,680 --> 00:25:39,760 Speaker 2: shaved his head. No one disputes the glaring violation of 428 00:25:39,800 --> 00:25:44,520 Speaker 2: his religious rights. As justice Amy Coney Barrett noted, Look. 429 00:25:44,359 --> 00:25:46,520 Speaker 8: The facts of this case are egregious. 430 00:25:46,680 --> 00:25:48,679 Speaker 7: So if on the facts we were looking for a 431 00:25:48,760 --> 00:25:51,800 Speaker 7: case in which there should be money damages, this is it. 432 00:25:52,119 --> 00:25:55,080 Speaker 2: But it's not just about the facts. It's about the 433 00:25:55,200 --> 00:25:58,719 Speaker 2: law and whether Landor can sue the guards and prison 434 00:25:58,760 --> 00:26:03,480 Speaker 2: officials for damage under the Religious land Use and Institutionalized 435 00:26:03,520 --> 00:26:07,560 Speaker 2: Persons Act, better known as RALUPA. The Supreme Court has 436 00:26:07,640 --> 00:26:11,879 Speaker 2: repeatedly cided with religious litigants, but a majority of the 437 00:26:11,960 --> 00:26:17,320 Speaker 2: Conservative justices, led by Justice Neil Gorsuch, appeared skeptical that 438 00:26:17,440 --> 00:26:19,560 Speaker 2: Landor could sue for damages. 439 00:26:20,080 --> 00:26:23,560 Speaker 7: The circuits are unanimously against you and have been for many, many, 440 00:26:23,600 --> 00:26:27,439 Speaker 7: many years. So saying that something awful's going to happen, 441 00:26:27,880 --> 00:26:28,159 Speaker 7: it's all. 442 00:26:28,359 --> 00:26:29,880 Speaker 8: Whatever's happened has happened, right. 443 00:26:30,280 --> 00:26:33,560 Speaker 2: And the Conservatives question whether the prison guards had been 444 00:26:33,600 --> 00:26:37,399 Speaker 2: given proper notice that they could be held personally lible, 445 00:26:37,600 --> 00:26:40,359 Speaker 2: but the liberal justice has said it was clear that 446 00:26:40,400 --> 00:26:44,440 Speaker 2: the guards understood that. Here are Chief Justice John Roberts 447 00:26:44,560 --> 00:26:47,439 Speaker 2: and Justice Sonya. So to Mayor, if you're. 448 00:26:47,359 --> 00:26:52,560 Speaker 5: Hired as a prison guard in Louisiana, you don't sit down. 449 00:26:52,680 --> 00:26:54,439 Speaker 5: And I don't even know if Louisiana does saying, oh, 450 00:26:54,480 --> 00:26:56,960 Speaker 5: here's our agreement with the federal government, which probably goes 451 00:26:57,000 --> 00:27:00,399 Speaker 5: on for how many pages, and you should look at 452 00:27:00,440 --> 00:27:02,160 Speaker 5: it carefully because you're bound by it. 453 00:27:03,240 --> 00:27:07,000 Speaker 8: Generally speaking, if you're a prison official, you know you're 454 00:27:07,000 --> 00:27:10,320 Speaker 8: working in a prison, and you bound by law to 455 00:27:10,400 --> 00:27:15,440 Speaker 8: big damages if you violate the law, do you get 456 00:27:15,440 --> 00:27:15,920 Speaker 8: an out? 457 00:27:16,080 --> 00:27:20,159 Speaker 2: Because what my guest is John Neezer, a professor at 458 00:27:20,240 --> 00:27:23,760 Speaker 2: Notre Dame Law School and director of the school's Religious 459 00:27:23,760 --> 00:27:27,840 Speaker 2: Liberty Clinic, John tell us about the law that Lendor 460 00:27:27,920 --> 00:27:28,720 Speaker 2: is suing under. 461 00:27:29,240 --> 00:27:32,560 Speaker 9: That act, which you know shorthand is called RELOOPA was 462 00:27:32,640 --> 00:27:35,639 Speaker 9: passed in two thousand in conjunction with an act that 463 00:27:35,760 --> 00:27:39,320 Speaker 9: was pasted a few years earlier, their Religious Freedom Restoration Act, 464 00:27:39,640 --> 00:27:42,040 Speaker 9: and both of them sort of target the same goal, 465 00:27:42,119 --> 00:27:45,639 Speaker 9: which is to, as a matter of federal statutory law, 466 00:27:45,920 --> 00:27:49,960 Speaker 9: to restore a more robust set of protections for a 467 00:27:49,960 --> 00:27:54,919 Speaker 9: religious exercise which previously had been available under the US Constitution, 468 00:27:55,680 --> 00:27:58,920 Speaker 9: but then siminal case in nineteen ninety sort of restricted 469 00:27:59,240 --> 00:28:01,840 Speaker 9: some of those as a matter of constitutional law, and 470 00:28:01,840 --> 00:28:03,879 Speaker 9: then Congress acted to restore them as a matter of 471 00:28:03,880 --> 00:28:04,680 Speaker 9: statutory law. 472 00:28:05,240 --> 00:28:10,480 Speaker 2: So RALUPA was designed to protect the religious rights of inmates. 473 00:28:11,000 --> 00:28:13,520 Speaker 2: What's the problem with landor using it here? 474 00:28:13,920 --> 00:28:17,240 Speaker 9: So RALUPA focuses on two areas of state and local 475 00:28:17,320 --> 00:28:20,400 Speaker 9: government activity. One is in land use, you know, decisions 476 00:28:20,400 --> 00:28:22,320 Speaker 9: about how you can use your property. And then the 477 00:28:22,359 --> 00:28:26,040 Speaker 9: one relevant here is about religious exercise and jails and prisons. 478 00:28:26,240 --> 00:28:30,720 Speaker 9: And so there's no doubt that the law RELUPA protects 479 00:28:31,200 --> 00:28:33,879 Speaker 9: mister Landor's rights here. He's a state prisoner and so 480 00:28:34,000 --> 00:28:38,880 Speaker 9: therefore safeguards is right while incarcerated to exercise his religion. 481 00:28:39,280 --> 00:28:42,760 Speaker 9: And the only question in this case is one of remedies. 482 00:28:42,840 --> 00:28:45,640 Speaker 9: So the effects are egregious. I don't think anyone really 483 00:28:45,680 --> 00:28:49,200 Speaker 9: doubts that while he was in prison his rights were 484 00:28:49,240 --> 00:28:52,480 Speaker 9: blatantly violated. He's a Rastafarian, which among other things, requires 485 00:28:52,560 --> 00:28:54,840 Speaker 9: him not to cut his hair. He actually had a 486 00:28:54,920 --> 00:28:57,960 Speaker 9: judicial decision when he entered the prison that held the 487 00:28:57,960 --> 00:29:02,360 Speaker 9: prison policy requires, you know, they normally require forced shaving 488 00:29:02,440 --> 00:29:04,160 Speaker 9: of all the inmates hair. He h had a decision 489 00:29:04,240 --> 00:29:07,160 Speaker 9: saying that couldn't be enforced against Rostafarians like him, But 490 00:29:07,200 --> 00:29:09,880 Speaker 9: the guards literally threw away that decision hand kept him 491 00:29:09,880 --> 00:29:11,760 Speaker 9: to a chair and shaved his head anyway, So there's 492 00:29:11,800 --> 00:29:14,240 Speaker 9: no doubt his rights were violated, and the question now 493 00:29:14,400 --> 00:29:18,160 Speaker 9: is only what sort of remedies does RELUPA allow for 494 00:29:18,280 --> 00:29:20,280 Speaker 9: him to address that violation. 495 00:29:20,920 --> 00:29:24,560 Speaker 2: Justice Katanji Brown Jackson read from Reloopa and said, it 496 00:29:24,600 --> 00:29:28,640 Speaker 2: seems pretty clear. And five years ago the Supreme Court 497 00:29:28,800 --> 00:29:33,800 Speaker 2: unanimously ruled that the sister statute, the Religious Freedom Restoration Act, 498 00:29:34,000 --> 00:29:38,920 Speaker 2: permits money damages against federal officials. In that case, Muslims 499 00:29:38,960 --> 00:29:42,600 Speaker 2: were allowed to sue over their inclusion on the FBI's 500 00:29:42,840 --> 00:29:46,480 Speaker 2: no fly list. So why doesn't that analysis work for 501 00:29:46,560 --> 00:29:47,920 Speaker 2: the law here Reloopa. 502 00:29:48,440 --> 00:29:50,160 Speaker 9: Yeah, So the legal question out of heart is a 503 00:29:50,160 --> 00:29:54,280 Speaker 9: pretty technical one of congressional power. So what both REFRA 504 00:29:54,400 --> 00:29:57,000 Speaker 9: and RALUPA, what these laws allow is for someone who's 505 00:29:57,040 --> 00:30:00,640 Speaker 9: been injured, whose rights have been violated, to a lawsuit 506 00:30:00,720 --> 00:30:04,240 Speaker 9: in federal court against those who cause the violation. The 507 00:30:04,280 --> 00:30:06,760 Speaker 9: statute the words of the law allow you, in that 508 00:30:06,840 --> 00:30:10,000 Speaker 9: lawsuit to get all appropriate relief. So then the whole 509 00:30:10,040 --> 00:30:13,520 Speaker 9: question becomes, well what does Congress mean by appropriate relief? 510 00:30:13,680 --> 00:30:16,960 Speaker 9: One thing that's undisputed is appropriatelyef certainly includes a judicial 511 00:30:17,080 --> 00:30:20,960 Speaker 9: order that would prevent an ongoing violation of religious rights. 512 00:30:21,240 --> 00:30:24,680 Speaker 9: So if the jail were continuing to threaten to violate 513 00:30:24,720 --> 00:30:27,680 Speaker 9: mister Landorre's rights, say they are shaving his head every week, 514 00:30:28,000 --> 00:30:29,640 Speaker 9: you can get a court order telling them to stop 515 00:30:29,640 --> 00:30:31,560 Speaker 9: doing that. The question that is, as you just touched 516 00:30:31,600 --> 00:30:34,120 Speaker 9: on there is but what about one time harms? What 517 00:30:34,160 --> 00:30:37,320 Speaker 9: about harms that aren't ongoing? They're over now? How do 518 00:30:37,360 --> 00:30:39,640 Speaker 9: you remedy those? Does the law allow you to get, 519 00:30:39,840 --> 00:30:41,800 Speaker 9: you know, monetary damages, which would be the normal way 520 00:30:41,840 --> 00:30:45,360 Speaker 9: in a lawsuit if you've been harmed, The normal recourse 521 00:30:45,440 --> 00:30:48,920 Speaker 9: in the law is you're able to get monetary damages 522 00:30:48,960 --> 00:30:51,400 Speaker 9: to get money to help in some way remedy or 523 00:30:51,440 --> 00:30:54,080 Speaker 9: repair that harm. But the question here is is RELOPA 524 00:30:54,080 --> 00:30:55,880 Speaker 9: allow that you're right riff for out of the Sister's 525 00:30:55,880 --> 00:30:59,240 Speaker 9: statue was held to allow monetary damages, and the question 526 00:30:59,280 --> 00:31:02,240 Speaker 9: of well RELUPA allow the same turns out a very 527 00:31:02,280 --> 00:31:06,040 Speaker 9: particular idea of the congressional power issue here, which is 528 00:31:06,400 --> 00:31:10,040 Speaker 9: Congress's use of its spending power. Does the spending clause 529 00:31:10,160 --> 00:31:15,440 Speaker 9: require something more for a statute to authorize monetary damages? 530 00:31:15,560 --> 00:31:19,840 Speaker 9: Does appropriate relief clearly enough convey that when a state 531 00:31:19,920 --> 00:31:23,560 Speaker 9: accepts federal spending it might open itself up or open 532 00:31:23,600 --> 00:31:26,160 Speaker 9: its officers up to suits for money damages. 533 00:31:26,440 --> 00:31:30,120 Speaker 2: Did it seem fairly apparent that most of the conservative 534 00:31:30,360 --> 00:31:34,200 Speaker 2: justices thought that lender couldn't sue for money damages under 535 00:31:34,240 --> 00:31:35,080 Speaker 2: the statute. 536 00:31:35,200 --> 00:31:36,920 Speaker 9: I don't know how clear it is, but I do 537 00:31:37,000 --> 00:31:40,520 Speaker 9: think a number of justices certainly express skepticism about that. 538 00:31:40,560 --> 00:31:42,680 Speaker 9: There's a couple different things going on. One is, what 539 00:31:42,720 --> 00:31:45,800 Speaker 9: does the statute mean? You know, what does appropriate relief 540 00:31:45,880 --> 00:31:48,640 Speaker 9: mean in context of laws like this the statute itself, 541 00:31:48,680 --> 00:31:51,320 Speaker 9: is it clear enough that it allows monetary damages? And 542 00:31:51,320 --> 00:31:53,000 Speaker 9: then the other is, well, okay, even if it is, 543 00:31:53,120 --> 00:31:55,640 Speaker 9: does the Constitution let Congress do that through a spending 544 00:31:55,640 --> 00:31:58,320 Speaker 9: clause law like this? And several justices I think express 545 00:31:58,400 --> 00:32:00,880 Speaker 9: some skepticism on one or both of those questions. But 546 00:32:00,920 --> 00:32:03,520 Speaker 9: I think this skepticism all came back to a similar idea, 547 00:32:03,640 --> 00:32:07,480 Speaker 9: which is, spending clause legislation opens up money for state 548 00:32:07,560 --> 00:32:11,040 Speaker 9: governments to take part in federal programs or to receive 549 00:32:11,080 --> 00:32:14,120 Speaker 9: federal subsidies for different types of things. Here jails and prisons, 550 00:32:14,320 --> 00:32:16,720 Speaker 9: and the federal government can attach conditions to those, and 551 00:32:16,760 --> 00:32:20,040 Speaker 9: the Court's concern is that states are coming into that 552 00:32:20,200 --> 00:32:23,320 Speaker 9: bargain with their eyes open, that they understand the conditions 553 00:32:23,360 --> 00:32:25,760 Speaker 9: they're agreeing to. It's one of notice. I don't think 554 00:32:25,760 --> 00:32:28,160 Speaker 9: it's so much about whether it would make sense to 555 00:32:28,280 --> 00:32:32,000 Speaker 9: apply these substantive religious rights in prison. And everyone agrees 556 00:32:32,040 --> 00:32:35,160 Speaker 9: actually that the prison and its officials are bound substantively 557 00:32:35,520 --> 00:32:38,000 Speaker 9: to protect the rights that reloopid demands. But what some 558 00:32:38,040 --> 00:32:39,800 Speaker 9: of the justices in the court were really struggling with 559 00:32:40,080 --> 00:32:42,560 Speaker 9: was how clear was it. Were individuals who work within 560 00:32:42,600 --> 00:32:45,440 Speaker 9: those prisons really on notice that by signing up to 561 00:32:45,440 --> 00:32:47,160 Speaker 9: work in the prison they might be sued for things 562 00:32:47,240 --> 00:32:47,560 Speaker 9: like this. 563 00:32:48,200 --> 00:32:51,760 Speaker 2: It seemed like a lot of the conservative justices didn't 564 00:32:51,760 --> 00:32:55,320 Speaker 2: think that there was notice here. At one point, Chief 565 00:32:55,440 --> 00:32:59,560 Speaker 2: Justice John Roberts said, it's a legal fiction to say 566 00:32:59,640 --> 00:33:03,400 Speaker 2: that a prison guard knows what he's signing up for here. 567 00:33:03,800 --> 00:33:07,680 Speaker 2: But the liberals, particularly just as Soda Mayor said, when 568 00:33:07,680 --> 00:33:10,960 Speaker 2: you sign up to work as a corrections official in 569 00:33:11,040 --> 00:33:14,920 Speaker 2: a prison, doesn't that mean you're signing up to obey 570 00:33:14,960 --> 00:33:17,720 Speaker 2: the law? And you know, the act here was so 571 00:33:17,960 --> 00:33:21,640 Speaker 2: obviously brutal, and the guard took the law that was 572 00:33:21,720 --> 00:33:24,720 Speaker 2: handed to him and not only ignored it, but threw 573 00:33:24,760 --> 00:33:25,840 Speaker 2: it in the garbage. 574 00:33:25,920 --> 00:33:27,560 Speaker 9: I agree with that, and I think mister Landor has 575 00:33:27,640 --> 00:33:30,120 Speaker 9: very good argument here. Right. So it's of course true, 576 00:33:30,160 --> 00:33:32,280 Speaker 9: as the Chief Justice pointed out, that there's something of 577 00:33:32,360 --> 00:33:34,680 Speaker 9: a legal fiction here, but that's you know, these legal 578 00:33:34,720 --> 00:33:37,400 Speaker 9: fictions run throughout the law. We're all presumed to have 579 00:33:37,680 --> 00:33:41,120 Speaker 9: knowledge and be aware of the contents of criminal law. 580 00:33:41,240 --> 00:33:43,320 Speaker 9: You know, is any given person on the street actually 581 00:33:43,360 --> 00:33:46,600 Speaker 9: aware of everything that's prohibited by federal or state criminal law. No, 582 00:33:46,600 --> 00:33:48,600 Speaker 9: of course, not right, but ignorance of the law, even 583 00:33:48,640 --> 00:33:50,800 Speaker 9: if actually true, we don't allow that ignorance of the 584 00:33:50,880 --> 00:33:52,760 Speaker 9: law to be excuse to defy it. 585 00:33:52,840 --> 00:33:53,040 Speaker 3: Right. 586 00:33:53,120 --> 00:33:55,440 Speaker 9: And so you know, just as sod my Or's point here, 587 00:33:55,440 --> 00:33:58,360 Speaker 9: which is echoed throughout the argument by mister Landor's council, 588 00:33:59,000 --> 00:34:02,000 Speaker 9: is that, at least in this context where we're talking 589 00:34:02,040 --> 00:34:04,720 Speaker 9: about people who sign up to work in a prison 590 00:34:04,920 --> 00:34:07,760 Speaker 9: or a jail, these officers, we all the time presume 591 00:34:07,840 --> 00:34:12,799 Speaker 9: they understand their obligations under federal law, under constitutional law, 592 00:34:12,880 --> 00:34:15,360 Speaker 9: under state law, and they understand that if they violate 593 00:34:15,400 --> 00:34:18,799 Speaker 9: those obligations, these demands that they protect our rights, that 594 00:34:18,880 --> 00:34:20,759 Speaker 9: they might be sued for it. And again I don't 595 00:34:20,760 --> 00:34:22,239 Speaker 9: think there's any doubt in the case, and I think 596 00:34:22,360 --> 00:34:25,759 Speaker 9: the state actually concedes that as a substantive matter, the 597 00:34:25,840 --> 00:34:29,960 Speaker 9: state and its officers were bound to follow the demands 598 00:34:30,000 --> 00:34:31,920 Speaker 9: of RELOOPA. So then the only question is, well, if 599 00:34:31,920 --> 00:34:33,960 Speaker 9: they knew they had to follow RELOOPA, they knew they 600 00:34:33,960 --> 00:34:36,480 Speaker 9: could get sued under RELOOPA, they knew they could be 601 00:34:36,560 --> 00:34:40,160 Speaker 9: held subject to injunctive relief under RELOOPA. Do they also 602 00:34:40,280 --> 00:34:42,439 Speaker 9: need to know that they could be sued for money 603 00:34:42,520 --> 00:34:46,000 Speaker 9: under aloopa. Well, even if that's a separate question, I 604 00:34:46,040 --> 00:34:49,520 Speaker 9: agree with mister Landor here, that's not a very hard one, 605 00:34:49,560 --> 00:34:51,960 Speaker 9: because again, as soon as you're understanding that you might 606 00:34:51,960 --> 00:34:55,719 Speaker 9: be sued as an individual, the normal recourse is that 607 00:34:55,880 --> 00:34:58,680 Speaker 9: if you're found to have violated the law, you might 608 00:34:58,719 --> 00:34:59,960 Speaker 9: have to pay money damage. 609 00:35:00,520 --> 00:35:02,239 Speaker 2: And do you have a feel for how the court 610 00:35:02,320 --> 00:35:03,560 Speaker 2: might come out in this case? 611 00:35:04,160 --> 00:35:05,759 Speaker 9: No, I don't have a feel. I mean, I think 612 00:35:05,760 --> 00:35:07,920 Speaker 9: it's a complicated case. It was obvious to me that 613 00:35:08,000 --> 00:35:10,520 Speaker 9: in the argument a lot of the justices were really 614 00:35:10,560 --> 00:35:13,520 Speaker 9: struggling with how to draw these lines and these concerns 615 00:35:13,520 --> 00:35:18,120 Speaker 9: over notice and keeping Congress from overstepping its enumerated powers, 616 00:35:18,160 --> 00:35:20,880 Speaker 9: which is, which itself is a rights protecting idea typically, 617 00:35:21,360 --> 00:35:24,319 Speaker 9: but with the recognition that here is a seminal piece 618 00:35:24,360 --> 00:35:27,720 Speaker 9: of legislation to protect religious freedom, a piece of legislation 619 00:35:27,760 --> 00:35:32,080 Speaker 9: in the Court has repeatedly been sure to safeguard and uphold. 620 00:35:32,520 --> 00:35:34,920 Speaker 9: And I think there's real tensions with how best to 621 00:35:35,640 --> 00:35:39,520 Speaker 9: weigh those, you know, competing sort of priorities of the court. 622 00:35:39,680 --> 00:35:43,120 Speaker 9: So I do think the case is harder than it 623 00:35:43,200 --> 00:35:46,160 Speaker 9: might appear at first blush. But I also would hope 624 00:35:46,160 --> 00:35:48,200 Speaker 9: that the Court would ultimately align the reading of the 625 00:35:48,239 --> 00:35:50,360 Speaker 9: two statutes, and it would be at least a somewhat 626 00:35:50,400 --> 00:35:53,640 Speaker 9: unusual result if refer and Raulupa, these sister statutes passed 627 00:35:53,640 --> 00:35:56,200 Speaker 9: for the same purposes, allowed different remedies, and it would 628 00:35:56,239 --> 00:36:00,000 Speaker 9: leave people like mister Landor without any recourse to remedy 629 00:36:00,600 --> 00:36:03,440 Speaker 9: what all agree was an egregious violation of his rights. 630 00:36:03,440 --> 00:36:07,400 Speaker 9: And it would leave no ability to hold the individuals 631 00:36:07,520 --> 00:36:10,680 Speaker 9: who literally threw away a copy of a court decision 632 00:36:11,120 --> 00:36:12,680 Speaker 9: and to hold them accountable, And I think that would 633 00:36:12,680 --> 00:36:13,680 Speaker 9: be regrettable. Certainly. 634 00:36:14,120 --> 00:36:16,759 Speaker 2: I admit I initially thought that the Court took this 635 00:36:17,040 --> 00:36:20,880 Speaker 2: case to reverse the lower courts and allow land Or 636 00:36:20,960 --> 00:36:25,520 Speaker 2: to sue for damages, especially considering how solicitous the justices 637 00:36:25,600 --> 00:36:29,960 Speaker 2: usually are about protecting religious liberties and the facts here. 638 00:36:30,000 --> 00:36:33,240 Speaker 2: How often do you have the plaintiff showing the law 639 00:36:33,400 --> 00:36:36,799 Speaker 2: to the defendant and the defendant just tossing it out. 640 00:36:37,160 --> 00:36:38,560 Speaker 2: You can't make these things up. 641 00:36:38,719 --> 00:36:40,279 Speaker 9: I mean, I agree, and I think at the end 642 00:36:40,280 --> 00:36:43,160 Speaker 9: of the day, the simplest reading of the case is 643 00:36:43,160 --> 00:36:46,080 Speaker 9: what you're saying. This is a blatant violation of this 644 00:36:46,160 --> 00:36:48,919 Speaker 9: man's rights. It doesn't seem real. They literally threw away 645 00:36:48,920 --> 00:36:52,960 Speaker 9: the decision. They handcuffed him, they forcibly shaved him, and 646 00:36:53,040 --> 00:36:55,400 Speaker 9: now the claim is brought under a law that's nearly 647 00:36:55,440 --> 00:36:59,400 Speaker 9: identical to him that the court just said allows lawsuits 648 00:36:59,440 --> 00:37:03,040 Speaker 9: for damages. This simplest thing is, yeah, you take it 649 00:37:03,160 --> 00:37:05,200 Speaker 9: to reverse and do to make clear. Yes, RALUPA is 650 00:37:05,320 --> 00:37:07,600 Speaker 9: just like REFERRA. It allows these damages, and I think 651 00:37:07,600 --> 00:37:10,120 Speaker 9: that's the right outcome. I do agree though that from 652 00:37:10,160 --> 00:37:12,440 Speaker 9: the argument, it seems the court is certainly struggling with 653 00:37:12,560 --> 00:37:13,759 Speaker 9: more complications than that. 654 00:37:13,960 --> 00:37:17,440 Speaker 2: Thanks so much, John. That's professor John Meser of Notre 655 00:37:17,480 --> 00:37:20,120 Speaker 2: Dame Law School. And that's it for this edition of 656 00:37:20,120 --> 00:37:22,800 Speaker 2: the Bloomberg Law Show. Remember you can always get the 657 00:37:22,880 --> 00:37:26,080 Speaker 2: latest legal news on our Bloomberg Law Podcast. You can 658 00:37:26,120 --> 00:37:30,359 Speaker 2: find them on Apple Podcasts, Spotify, and at www dot 659 00:37:30,360 --> 00:37:34,560 Speaker 2: bloomberg dot com slash podcast Slash Law, And remember to 660 00:37:34,600 --> 00:37:37,640 Speaker 2: tune into the Bloomberg Law Show every weeknight at ten 661 00:37:37,680 --> 00:37:41,480 Speaker 2: pm Wall Street Time. I'm Junie Grosso and you're listening 662 00:37:41,560 --> 00:37:42,239 Speaker 2: to Bloomberg