1 00:00:00,560 --> 00:00:07,280 Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:07,320 --> 00:00:10,080 Speaker 1: Was a blockbuster year at the Supreme Court, with major 3 00:00:10,119 --> 00:00:15,640 Speaker 1: decisions on lgbt Q rights, presidential powers, abortion rights, religious liberties, 4 00:00:15,640 --> 00:00:19,560 Speaker 1: and dhaka. But don't expect such epic decisions this year 5 00:00:19,920 --> 00:00:24,120 Speaker 1: that justices are switching from blockbusters social matters to lower 6 00:00:24,160 --> 00:00:27,840 Speaker 1: profile staples when they resume in January. Joining me is 7 00:00:27,880 --> 00:00:30,720 Speaker 1: Neil kin Call, a professor at the Georgia State University 8 00:00:30,840 --> 00:00:34,040 Speaker 1: College of Law. Broadly speaking, Neal, when you look at 9 00:00:34,040 --> 00:00:36,360 Speaker 1: the docket coming up, does it seem as if there 10 00:00:36,360 --> 00:00:40,960 Speaker 1: are fewer blockbusters this year? Yes, it seems like there 11 00:00:40,960 --> 00:00:45,320 Speaker 1: are many fewer blockbusters. Um, in part that's kind of 12 00:00:45,360 --> 00:00:51,320 Speaker 1: an unfair comparison to which had an extraordinary number of blockbusters. 13 00:00:51,400 --> 00:00:55,560 Speaker 1: So comparing almost any year to is going to look boring. 14 00:00:56,040 --> 00:00:58,520 Speaker 1: But I think it's also a conscious decision on the 15 00:00:58,560 --> 00:01:03,320 Speaker 1: part of particular pularly Chief Justice Roberts to pull back 16 00:01:03,360 --> 00:01:07,120 Speaker 1: a bit from controversy. Controversy is not good for the 17 00:01:07,160 --> 00:01:11,160 Speaker 1: Supreme courts public image and it's not great for their standing, 18 00:01:11,520 --> 00:01:14,759 Speaker 1: and so I think Justice Roberts in particular is acutely 19 00:01:14,800 --> 00:01:18,320 Speaker 1: aware of all of that and serves the courts sort 20 00:01:18,319 --> 00:01:21,880 Speaker 1: of public image and its legitimacy to pull back a 21 00:01:21,920 --> 00:01:25,279 Speaker 1: bit from controversy, let things die down a bit before 22 00:01:25,319 --> 00:01:28,479 Speaker 1: they start taking on the real hot button issues again. 23 00:01:28,920 --> 00:01:32,840 Speaker 1: So the conservative wing of the Court must agree with him, right, 24 00:01:32,880 --> 00:01:36,240 Speaker 1: because it only takes four justices, and they certainly have 25 00:01:36,319 --> 00:01:39,920 Speaker 1: four justices there to take a case that's right, at 26 00:01:39,959 --> 00:01:43,080 Speaker 1: least so far. But I think Justice Roberts still has 27 00:01:43,280 --> 00:01:48,400 Speaker 1: some some real influence within within the conservative set of justices, 28 00:01:48,520 --> 00:01:51,320 Speaker 1: even though he can be and I'm sure will be 29 00:01:51,480 --> 00:01:55,120 Speaker 1: outvoted by them and that they will move further right 30 00:01:55,640 --> 00:01:58,720 Speaker 1: and move more quickly than he wants to, But he 31 00:01:58,840 --> 00:02:02,160 Speaker 1: still has real influence, and so I think we see 32 00:02:02,200 --> 00:02:05,320 Speaker 1: that with this. How much does this have to do 33 00:02:05,400 --> 00:02:10,119 Speaker 1: with the change of administrations coming up? Well, it may 34 00:02:10,200 --> 00:02:13,600 Speaker 1: have to do with the change of administrations in that 35 00:02:14,360 --> 00:02:16,680 Speaker 1: a lot of the issues coming out of the Trump 36 00:02:16,680 --> 00:02:21,000 Speaker 1: administration are likely to be mooted with the Biden administration 37 00:02:21,120 --> 00:02:24,799 Speaker 1: coming in. So some of the controversial moves that were 38 00:02:24,800 --> 00:02:29,200 Speaker 1: being challenged in court um will be withdrawn under the 39 00:02:29,240 --> 00:02:32,760 Speaker 1: Biden administration. I'm thinking of things like the legality of 40 00:02:33,440 --> 00:02:36,960 Speaker 1: Trump's decision to build the border wall on the southern 41 00:02:36,960 --> 00:02:41,840 Speaker 1: border to use an emergency designation of military construction funds 42 00:02:41,919 --> 00:02:44,360 Speaker 1: to do that, and the legality of that order is 43 00:02:44,480 --> 00:02:48,320 Speaker 1: really dubious and is pending in the courts, But that's 44 00:02:48,320 --> 00:02:51,360 Speaker 1: certain to become moot once Biden comes in. There are 45 00:02:51,360 --> 00:02:53,560 Speaker 1: a number of other of those sorts of measures that 46 00:02:53,600 --> 00:02:57,240 Speaker 1: Trump has already taken that I think will quickly become moot. 47 00:02:57,720 --> 00:02:59,920 Speaker 1: And there may be others in the waning days of 48 00:03:00,040 --> 00:03:04,000 Speaker 1: the administration that will follow that mole. What is the 49 00:03:04,040 --> 00:03:06,760 Speaker 1: procedure exactly, and let's say the border wall. Does the 50 00:03:06,800 --> 00:03:11,560 Speaker 1: Biden administrations say we're going to retract this case or 51 00:03:11,600 --> 00:03:14,520 Speaker 1: does the court have to say it's moot? Um? Both 52 00:03:14,560 --> 00:03:18,240 Speaker 1: of those will happen. So the court, so the the 53 00:03:18,240 --> 00:03:23,360 Speaker 1: the Abiden administration and the Justice Department can can say, um, 54 00:03:23,440 --> 00:03:26,800 Speaker 1: we're no longer proceeding with this action, so please dismiss 55 00:03:26,840 --> 00:03:30,160 Speaker 1: the cases moot, and the court will have to agree um. 56 00:03:30,480 --> 00:03:33,840 Speaker 1: And in those sorts of cases, the court's agreement is routine. 57 00:03:34,320 --> 00:03:37,200 Speaker 1: There can be situations where the court has a kind 58 00:03:37,200 --> 00:03:40,960 Speaker 1: of oversight role um and so might not agree to 59 00:03:41,040 --> 00:03:44,680 Speaker 1: dismiss the case even though the Justice Department is asking 60 00:03:44,720 --> 00:03:47,760 Speaker 1: for that UM. And here I'm thinking of the Michael 61 00:03:47,800 --> 00:03:52,040 Speaker 1: Flynn prosecution UM. At that point, Michael Flynn had already 62 00:03:52,080 --> 00:03:55,840 Speaker 1: pleaded guilty UM, and so the court had real supervision 63 00:03:55,920 --> 00:03:59,320 Speaker 1: over what kind of sentence to give UM, and was 64 00:03:59,400 --> 00:04:03,240 Speaker 1: continuing to exercise that role until finally Trump issued the 65 00:04:03,280 --> 00:04:06,920 Speaker 1: pardon that rendered the whole thing move UM. So there 66 00:04:06,920 --> 00:04:10,640 Speaker 1: are those kinds of unusual situations where a court can 67 00:04:10,720 --> 00:04:14,119 Speaker 1: decide to keep a case even though the Justice Department 68 00:04:14,200 --> 00:04:17,000 Speaker 1: wants it to go away. But for the most part, 69 00:04:17,920 --> 00:04:21,680 Speaker 1: those are extraordinary circumstances. For the most part, um, if 70 00:04:21,720 --> 00:04:26,320 Speaker 1: the administration decides to stop pursuing a particular course, the 71 00:04:26,360 --> 00:04:30,160 Speaker 1: courts are only too happy to have it dismissed. Cases 72 00:04:30,160 --> 00:04:35,240 Speaker 1: coming up that may prove controversial or probably will prove controversial. 73 00:04:35,400 --> 00:04:40,200 Speaker 1: Cases involving voting rights. Two cases from Arizona tell us 74 00:04:40,279 --> 00:04:47,560 Speaker 1: what they're about. So the Arizona cases involve fundamentally questions 75 00:04:47,600 --> 00:04:52,400 Speaker 1: about the application of Section two of the Voting Rights Act, 76 00:04:53,080 --> 00:04:57,039 Speaker 1: which is a section that protects voting rights and particularly 77 00:04:57,560 --> 00:05:02,840 Speaker 1: protects against the delusion voting rights. And so the Arizona 78 00:05:02,920 --> 00:05:08,839 Speaker 1: cases involved fairly technical questions of voting procedures. And these 79 00:05:08,880 --> 00:05:13,200 Speaker 1: are important because the Supreme Court some years ago struck 80 00:05:13,240 --> 00:05:17,480 Speaker 1: down Section five of the Voting Rights Act. Section five 81 00:05:17,600 --> 00:05:22,400 Speaker 1: was the preclearance provision, so certain jurisdictions, particularly here in 82 00:05:22,440 --> 00:05:27,240 Speaker 1: the South, time in Atlanta, were required to pre clear 83 00:05:27,440 --> 00:05:31,000 Speaker 1: any changes in their voting procedures because of the long 84 00:05:31,160 --> 00:05:35,960 Speaker 1: history of discrimination and particularly race based discrimination in the 85 00:05:36,040 --> 00:05:41,240 Speaker 1: covered jurisdictions. The Supreme Court struck that section down, and 86 00:05:41,360 --> 00:05:45,800 Speaker 1: so all that's left is Section two. And Section two 87 00:05:45,880 --> 00:05:50,040 Speaker 1: doesn't require preclearance. It allows jurisdictions to adopt their rule 88 00:05:50,160 --> 00:05:53,840 Speaker 1: changes and then have them litigated. And so now we're 89 00:05:53,839 --> 00:05:56,520 Speaker 1: going to see what kind of role the courts are 90 00:05:56,520 --> 00:05:59,839 Speaker 1: going to play in terms of oversight. Will they be 91 00:06:00,160 --> 00:06:05,480 Speaker 1: protective of people's fundamental right to vote or will they 92 00:06:05,480 --> 00:06:09,039 Speaker 1: be deferential to the states and the state's decisions to 93 00:06:09,279 --> 00:06:13,800 Speaker 1: change procedures and those very technical changes in voting procedures 94 00:06:13,839 --> 00:06:17,640 Speaker 1: I think we've seen through the recent national elections can 95 00:06:17,760 --> 00:06:22,599 Speaker 1: have dramatic consequences for the outcome, particularly in states like 96 00:06:22,880 --> 00:06:28,600 Speaker 1: Arizona where it seems to be closely divided Republicans and Democrats, 97 00:06:28,680 --> 00:06:31,760 Speaker 1: where the states are very purple, very much in play, 98 00:06:32,160 --> 00:06:35,800 Speaker 1: and so Arizona is at to be a battleground for 99 00:06:35,880 --> 00:06:41,040 Speaker 1: voting rights and for manipulation of voting procedures moving forward. Georgia, 100 00:06:41,200 --> 00:06:44,120 Speaker 1: my state is, is another of those. And so I 101 00:06:44,160 --> 00:06:47,280 Speaker 1: think that case will be a real sort of tip 102 00:06:47,360 --> 00:06:50,400 Speaker 1: of the Supreme Court's hand about which way they're going 103 00:06:50,440 --> 00:06:55,200 Speaker 1: to come down, states rights or individual voting rights. I 104 00:06:55,279 --> 00:06:59,919 Speaker 1: remember Justice Robert's opinion in the case you refer to 105 00:07:00,000 --> 00:07:05,279 Speaker 1: the Shelby County case with the racial injustice marches this 106 00:07:05,360 --> 00:07:09,080 Speaker 1: past year. Do you think that his reasoning in that 107 00:07:09,200 --> 00:07:14,360 Speaker 1: case false flat? Well? Yes, um, I think the reasoning 108 00:07:14,400 --> 00:07:16,720 Speaker 1: in that case fell flat the day it was issued. 109 00:07:18,320 --> 00:07:23,120 Speaker 1: It was a remarkable act of judicial invention. Um. He 110 00:07:23,240 --> 00:07:27,040 Speaker 1: made up this doctrine, called the equal footing doctrine UM, 111 00:07:27,280 --> 00:07:30,600 Speaker 1: out of whole cloth, saying that federal rules have to 112 00:07:30,680 --> 00:07:34,720 Speaker 1: treat the states equally. That is a doctrine that had 113 00:07:34,800 --> 00:07:41,600 Speaker 1: been completely unknown in constitutional law until Justice Roberts invented 114 00:07:41,640 --> 00:07:44,760 Speaker 1: it for purposes of Shelby County. There was a different 115 00:07:44,800 --> 00:07:47,760 Speaker 1: equal footing doctrine that applied before that that had to 116 00:07:47,800 --> 00:07:51,360 Speaker 1: do with admitting new states. Shelby County had nothing to 117 00:07:51,400 --> 00:07:55,200 Speaker 1: do with that, and Justice Roberts just made up this 118 00:07:55,320 --> 00:07:57,560 Speaker 1: doctrine and gave it the same name as if it 119 00:07:57,640 --> 00:08:00,800 Speaker 1: had anything to do with the previous cases. So that 120 00:08:00,920 --> 00:08:06,240 Speaker 1: opinion has always been one of really questionable principle. But 121 00:08:06,320 --> 00:08:09,360 Speaker 1: you're you're quite right to say the events of the 122 00:08:09,480 --> 00:08:13,440 Speaker 1: last year show in a very practical way just how 123 00:08:13,560 --> 00:08:17,320 Speaker 1: bankrupt the reasoning of that of that opinion was, and 124 00:08:17,440 --> 00:08:22,440 Speaker 1: now just how consequential that bankrupt opinion has always been. 125 00:08:23,560 --> 00:08:28,000 Speaker 1: Wasn't the Shelby County case the case where Justice Ruth 126 00:08:28,040 --> 00:08:33,360 Speaker 1: Bader Ginsburg sort of earned the notorious RBG reputation for 127 00:08:33,400 --> 00:08:37,600 Speaker 1: her dissent there, It was a classic, So that that's 128 00:08:37,640 --> 00:08:41,360 Speaker 1: certainly one of them where she earned that reputation um 129 00:08:41,360 --> 00:08:47,280 Speaker 1: where she helped make famous her descent dicky. So yeah, 130 00:08:47,320 --> 00:08:51,880 Speaker 1: that's that's a that's a classic moment in the RBG canon. 131 00:08:52,640 --> 00:08:58,240 Speaker 1: There are also some cases involving separation of powers, involving 132 00:08:58,360 --> 00:09:05,320 Speaker 1: administrative patenter DGEs and social security administration judges, not cases 133 00:09:05,360 --> 00:09:07,559 Speaker 1: that you normally think we're going to draw a lot 134 00:09:07,600 --> 00:09:10,960 Speaker 1: of attention, but in this term it may draw attention. 135 00:09:10,960 --> 00:09:14,240 Speaker 1: Tell us why those cases will draw attention in this term, 136 00:09:14,320 --> 00:09:18,440 Speaker 1: because there aren't the blockbusters of last term to sort 137 00:09:18,480 --> 00:09:21,960 Speaker 1: of draw the attention away from them. These are the 138 00:09:22,080 --> 00:09:27,960 Speaker 1: kinds of seemingly technical and inconsequential cases that really are 139 00:09:28,480 --> 00:09:33,520 Speaker 1: extremely consequential um and really important, And so they're being 140 00:09:33,920 --> 00:09:36,640 Speaker 1: a sort of spotlight on these cases I think is good. 141 00:09:37,040 --> 00:09:40,120 Speaker 1: The reason these cases are important is that they have 142 00:09:40,200 --> 00:09:44,199 Speaker 1: a lot to do with the status of administrative law judges, 143 00:09:44,600 --> 00:09:48,319 Speaker 1: which you know, just me saying those words probably puts 144 00:09:48,320 --> 00:09:50,559 Speaker 1: your listeners to sleep, but I would hope, but I 145 00:09:50,559 --> 00:09:53,280 Speaker 1: would hope they'll stay awake and pay attention to these 146 00:09:53,320 --> 00:09:57,319 Speaker 1: cases because so much of the work of the government 147 00:09:57,720 --> 00:10:02,040 Speaker 1: is done through these kinds of EFFICI shoals, And what 148 00:10:02,200 --> 00:10:07,319 Speaker 1: these cases ultimately are part of is a really important 149 00:10:07,400 --> 00:10:12,000 Speaker 1: question about just how much power the president has over 150 00:10:12,080 --> 00:10:17,320 Speaker 1: these functionaries. Right, So people who, for example, determine whether 151 00:10:17,440 --> 00:10:23,559 Speaker 1: or not you have eligibility to receive social security benefits, 152 00:10:23,679 --> 00:10:29,280 Speaker 1: or whether a particular immigrant who's applying for asylum or 153 00:10:29,320 --> 00:10:34,319 Speaker 1: for refugee status actually has that status recognized. Right, These 154 00:10:34,320 --> 00:10:38,640 Speaker 1: are important decisions, and under current law, they're supposed to 155 00:10:38,679 --> 00:10:44,959 Speaker 1: be made according to legal principles and through a judicial 156 00:10:45,040 --> 00:10:51,520 Speaker 1: process that's independent of political inputs. But Throughout the Trump administration, 157 00:10:52,040 --> 00:10:57,120 Speaker 1: there was a concerted effort to corrupt the decision making 158 00:10:57,160 --> 00:11:02,719 Speaker 1: process and to introduce um policy values and political values 159 00:11:03,160 --> 00:11:08,040 Speaker 1: into how these administrative figures did their jobs. Determined whether 160 00:11:08,160 --> 00:11:12,160 Speaker 1: or not individuals are eligible for benefits, determine whether or 161 00:11:12,200 --> 00:11:16,160 Speaker 1: not individuals are eligible for asylum, that that should be 162 00:11:16,360 --> 00:11:20,000 Speaker 1: determined not according to the principles of law, but rather 163 00:11:20,120 --> 00:11:24,880 Speaker 1: to Donald Trump's own political preferences. UM. And so these 164 00:11:24,960 --> 00:11:30,560 Speaker 1: cases very fundamentally deal with that question of just how 165 00:11:30,800 --> 00:11:37,080 Speaker 1: far into um the administrative state the president can impose 166 00:11:37,360 --> 00:11:42,640 Speaker 1: his political preferences. Right, So these are very fundamentally important questions, 167 00:11:43,720 --> 00:11:47,440 Speaker 1: even though they arise in a context that sounds deeply 168 00:11:47,600 --> 00:11:52,200 Speaker 1: inside baseball and boring. So, looking at the way the 169 00:11:52,240 --> 00:11:56,440 Speaker 1: Court has ruled in priar cases and taken into account 170 00:11:56,440 --> 00:11:59,079 Speaker 1: the fact that you have an even more conservative court 171 00:11:59,160 --> 00:12:02,120 Speaker 1: now and there's been a lot of talk about the 172 00:12:02,160 --> 00:12:07,200 Speaker 1: administrative state, any idea how they might rule. Yes, So 173 00:12:08,240 --> 00:12:13,640 Speaker 1: the Supreme Court's current majority is strongly in favor of 174 00:12:13,880 --> 00:12:18,840 Speaker 1: the unitary executive theory. And if that theory is put 175 00:12:18,880 --> 00:12:21,760 Speaker 1: into play in these cases, and I suspect it will 176 00:12:21,840 --> 00:12:25,720 Speaker 1: be UM, they are going to expand the ability of 177 00:12:25,760 --> 00:12:32,880 Speaker 1: the president two essentially politicize the administration of laws and 178 00:12:32,920 --> 00:12:39,880 Speaker 1: the enforcement of laws. Um. The the countervailing consideration, I 179 00:12:39,920 --> 00:12:42,880 Speaker 1: would say, Um, the thing that would make me hesitate 180 00:12:42,920 --> 00:12:46,280 Speaker 1: in making that prediction is that these cases will be 181 00:12:46,320 --> 00:12:51,480 Speaker 1: decided under abiden administration, and the conservative majority of the 182 00:12:51,520 --> 00:12:54,920 Speaker 1: Court is going to be a little reluctant to unleash 183 00:12:54,960 --> 00:12:58,959 Speaker 1: its theories of executive power when there is a democratic 184 00:12:59,000 --> 00:13:01,720 Speaker 1: president and offer us right. So I think those are 185 00:13:01,760 --> 00:13:06,280 Speaker 1: the two forces at play in principle. Um, the six 186 00:13:06,400 --> 00:13:10,080 Speaker 1: conservatives on the Supreme Court are strongly in favor of 187 00:13:10,160 --> 00:13:16,880 Speaker 1: executive power, but they're not strongly in favor of Biden 188 00:13:17,240 --> 00:13:21,200 Speaker 1: exercising executive power. Right, So those will be the two 189 00:13:21,240 --> 00:13:26,400 Speaker 1: things competing against each other when those justices beside these cases, 190 00:13:26,720 --> 00:13:30,440 Speaker 1: if they don't follow what you expect, Won't that be 191 00:13:30,720 --> 00:13:34,920 Speaker 1: a declaration that politics is at work here at the court? Yes, 192 00:13:36,440 --> 00:13:39,640 Speaker 1: if people see it. Right. So, because these issues come 193 00:13:39,720 --> 00:13:44,320 Speaker 1: up in obscure cases dealing with administrative law judges and 194 00:13:44,600 --> 00:13:48,920 Speaker 1: patent law judges, Um, it's apt to evade public notice. 195 00:13:49,480 --> 00:13:53,319 Speaker 1: But sure that that would be the declaration, But it 196 00:13:53,360 --> 00:13:56,480 Speaker 1: wouldn't be the first time the Court has made it UM. 197 00:13:56,600 --> 00:13:59,040 Speaker 1: You know, I can think there are plenty of cases 198 00:13:59,440 --> 00:14:04,520 Speaker 1: from the Commy years when you know, Justice Roberts in 199 00:14:04,600 --> 00:14:08,480 Speaker 1: spite of his commitment to the unitary executive theory and 200 00:14:08,520 --> 00:14:12,520 Speaker 1: found that the president didn't have certain powers um. And 201 00:14:12,600 --> 00:14:15,360 Speaker 1: so you know, there would be nothing new about that, 202 00:14:15,840 --> 00:14:24,280 Speaker 1: that move to apply political values instead of um legal principles. 203 00:14:24,600 --> 00:14:27,320 Speaker 1: They're not done filling out their docket for the remainder 204 00:14:27,520 --> 00:14:32,080 Speaker 1: of this year, and there's a case involving Mississippi's fifteen 205 00:14:32,080 --> 00:14:36,360 Speaker 1: week abortion band that's been rescheduled over and over again 206 00:14:36,400 --> 00:14:40,160 Speaker 1: at conference, and I'm wondering what the forces are for 207 00:14:40,320 --> 00:14:44,080 Speaker 1: taking that versus not taking that, because that would certainly 208 00:14:44,120 --> 00:14:48,240 Speaker 1: become the most controversial case of the term. Yeah. So, 209 00:14:49,000 --> 00:14:52,160 Speaker 1: you know, there's been a lot of speculation about what 210 00:14:52,200 --> 00:14:55,400 Speaker 1: the Supreme Court is going to do on abortion now 211 00:14:55,440 --> 00:14:59,720 Speaker 1: that there's a six justice conservative majority. And so the 212 00:14:59,760 --> 00:15:03,240 Speaker 1: two schools of thought are one that the Supreme Court 213 00:15:03,360 --> 00:15:06,280 Speaker 1: is going to take a ghost slow approach, an approach 214 00:15:06,360 --> 00:15:10,960 Speaker 1: that doesn't directly confront row versus Way, and instead the 215 00:15:11,040 --> 00:15:14,920 Speaker 1: Court will hollow out row versus Way, sort of cut 216 00:15:14,920 --> 00:15:18,160 Speaker 1: back on it to the point where it exists on paper, 217 00:15:18,440 --> 00:15:22,680 Speaker 1: but as a practical matter, states can regulate abortions out 218 00:15:22,720 --> 00:15:26,520 Speaker 1: of existence. The other school of thought is that the 219 00:15:26,600 --> 00:15:31,320 Speaker 1: sixth Justice conservative majority is going to say, if not now, when, 220 00:15:32,000 --> 00:15:35,520 Speaker 1: and if not Row, what are we doing here? And 221 00:15:35,600 --> 00:15:39,080 Speaker 1: so on that theory, the justices would vote directly to 222 00:15:39,240 --> 00:15:42,480 Speaker 1: overrule Roll versus Weight, And I think that's very much 223 00:15:42,480 --> 00:15:46,680 Speaker 1: a debate that's playing out. I suspect, for what it's 224 00:15:46,680 --> 00:15:50,440 Speaker 1: worth that the Supreme Court is going to directly confront 225 00:15:50,600 --> 00:15:53,720 Speaker 1: Row and overrule it. And if they're going to do that, 226 00:15:53,880 --> 00:15:57,160 Speaker 1: I think they've got to be thinking sooner rather than later, 227 00:15:57,360 --> 00:16:01,560 Speaker 1: because they don't particularly want this to be a big 228 00:16:01,600 --> 00:16:06,480 Speaker 1: issue in a presidential election, and so making that kind 229 00:16:06,480 --> 00:16:11,960 Speaker 1: of decision farther from a presidential election is better. Thanks 230 00:16:11,960 --> 00:16:14,480 Speaker 1: for being on the show, Neil. That's Neil Kincaugh, a 231 00:16:14,520 --> 00:16:19,040 Speaker 1: professor at the Georgia State University College of Law. Joe 232 00:16:19,080 --> 00:16:22,480 Speaker 1: Biden was formally recognized by Congress as the next president 233 00:16:22,520 --> 00:16:25,840 Speaker 1: of the United States early Thursday, and in two months 234 00:16:25,840 --> 00:16:29,440 Speaker 1: of fail legal challenges by Donald Trump that exploded into 235 00:16:29,600 --> 00:16:32,920 Speaker 1: violence at the US capital as lawmakers meant to ratify 236 00:16:32,960 --> 00:16:36,640 Speaker 1: the election result, joining me as elections law expert Derek Muller, 237 00:16:36,840 --> 00:16:39,920 Speaker 1: a professor at the University of Iowa Law School, looking 238 00:16:39,920 --> 00:16:43,600 Speaker 1: at it from the perspective of the law and election law, 239 00:16:43,680 --> 00:16:48,840 Speaker 1: how would you describe this election season? Yeah, I mean, 240 00:16:49,200 --> 00:16:52,600 Speaker 1: you know, in theory, every presidential election is unprecedented, and 241 00:16:52,680 --> 00:16:55,080 Speaker 1: we can use that in different ways. You know, this one, 242 00:16:55,520 --> 00:16:59,000 Speaker 1: you know, was driven extensively over the last couple of 243 00:16:59,040 --> 00:17:03,880 Speaker 1: months by principally some conspiracy theories and things that have 244 00:17:04,080 --> 00:17:07,119 Speaker 1: just never really carried any weight and never should have 245 00:17:07,160 --> 00:17:09,960 Speaker 1: seen the light of day, but continue to get perpetuated. 246 00:17:10,080 --> 00:17:13,600 Speaker 1: And that's not to set aside some people serious grievances 247 00:17:13,600 --> 00:17:17,399 Speaker 1: with things like late breaking changes to certain laws that 248 00:17:17,440 --> 00:17:20,440 Speaker 1: were enacted in things like that, But but the sheer 249 00:17:20,520 --> 00:17:25,720 Speaker 1: volume of misinformation out there and just the inability of 250 00:17:25,760 --> 00:17:30,320 Speaker 1: those closest to the president to rely on sort of 251 00:17:30,359 --> 00:17:33,240 Speaker 1: the objective and careful work of so many election professionals 252 00:17:33,240 --> 00:17:36,240 Speaker 1: around the country, in addition to all of the double 253 00:17:36,320 --> 00:17:38,520 Speaker 1: checks and triple checks in our process. You know, I've 254 00:17:38,680 --> 00:17:41,240 Speaker 1: certainly been the most disheartening thing and certainly came to 255 00:17:41,359 --> 00:17:43,840 Speaker 1: ahead in the in the riot that that happened on 256 00:17:43,920 --> 00:17:46,760 Speaker 1: January six in the Capital are the riots what made 257 00:17:46,800 --> 00:17:51,000 Speaker 1: it fizzle out? Or are there checks in the system 258 00:17:51,080 --> 00:17:53,360 Speaker 1: that would have made it fizzle out? Yeah, I mean 259 00:17:53,800 --> 00:17:57,240 Speaker 1: so my anticipation based upon all of the politics leading 260 00:17:57,320 --> 00:17:58,600 Speaker 1: up to the moment, and right, a lot of it 261 00:17:58,680 --> 00:18:02,359 Speaker 1: is political, but out of politics leading up to January six, 262 00:18:02,400 --> 00:18:04,760 Speaker 1: I anticipated we would have had a long day, you know, 263 00:18:04,880 --> 00:18:09,800 Speaker 1: probably ten hours, probably three plates of electors formally objected to, 264 00:18:10,119 --> 00:18:12,680 Speaker 1: with two hours debate each and votes on them, but 265 00:18:12,800 --> 00:18:15,200 Speaker 1: all of them would have been counted, So we would 266 00:18:15,240 --> 00:18:17,679 Speaker 1: have had some stress on the system. And that's how 267 00:18:17,720 --> 00:18:19,679 Speaker 1: to say we haven't seen it before. You know, I've 268 00:18:19,720 --> 00:18:22,320 Speaker 1: written about some democratic attempts that ended up now we 269 00:18:22,400 --> 00:18:24,760 Speaker 1: see much smaller in scale over the last twenty years, 270 00:18:24,760 --> 00:18:27,640 Speaker 1: and the ones that Republicans put forth on January six. 271 00:18:27,760 --> 00:18:29,440 Speaker 1: But the system would have played out so that there 272 00:18:29,440 --> 00:18:34,040 Speaker 1: would have been some some really theoretical, um fantastic kinds 273 00:18:34,040 --> 00:18:37,480 Speaker 1: of scenarios. Right if if Vice President Mike Penns had 274 00:18:37,560 --> 00:18:42,080 Speaker 1: done something truly extraordinary, essentially recalcitrant in the face of 275 00:18:42,119 --> 00:18:45,320 Speaker 1: Congress in terms of how to handle electoral votes or 276 00:18:45,560 --> 00:18:49,720 Speaker 1: individuals objecting to every single state and its electors, which 277 00:18:49,840 --> 00:18:52,440 Speaker 1: forces two hours of debate each and every time. Right, 278 00:18:52,480 --> 00:18:56,000 Speaker 1: So there are these sort of theoretical provisions, but again, 279 00:18:56,040 --> 00:18:59,479 Speaker 1: we still are a country of laws. Um, you know. 280 00:18:59,760 --> 00:19:03,000 Speaker 1: I I I'm grateful for the Vice President's decision making 281 00:19:03,040 --> 00:19:07,280 Speaker 1: and deference to the Senate parliamentarians and the legal advisors 282 00:19:07,320 --> 00:19:11,040 Speaker 1: around him. And I think there's also the political pressure 283 00:19:11,119 --> 00:19:14,679 Speaker 1: that that attends members of Congress. And while some of 284 00:19:14,720 --> 00:19:17,200 Speaker 1: them thought raising objections as a wise thing, I think 285 00:19:17,200 --> 00:19:19,399 Speaker 1: a lot realized it was not a wise thing, certainly 286 00:19:19,440 --> 00:19:23,040 Speaker 1: many more so after the riots. And so, you know, 287 00:19:23,080 --> 00:19:25,480 Speaker 1: there have always been some political checks, but there's no 288 00:19:25,600 --> 00:19:29,560 Speaker 1: question now I think we've you've seen this steady escalation 289 00:19:29,640 --> 00:19:32,360 Speaker 1: in the last twenty years, um, you know. And yesterday 290 00:19:32,400 --> 00:19:36,840 Speaker 1: was a significant escalate escalation of this county of electoral 291 00:19:36,920 --> 00:19:39,840 Speaker 1: votes as a moment to protest the presidential election. And 292 00:19:39,840 --> 00:19:42,720 Speaker 1: that is, um, that is worrisome, and that's something that 293 00:19:42,760 --> 00:19:46,919 Speaker 1: I you know, several Senators in particular, were concerned about 294 00:19:47,080 --> 00:19:49,879 Speaker 1: the precedent that this sets for the future. UM. So 295 00:19:49,960 --> 00:19:52,159 Speaker 1: I don't know how that's going to be handled in 296 00:19:52,160 --> 00:19:55,280 Speaker 1: the future. I don't know if there will be opportunities 297 00:19:55,320 --> 00:19:58,840 Speaker 1: to amend the Electoral Account Act to reduce the chances 298 00:19:59,040 --> 00:20:01,440 Speaker 1: of such things happening in the future. I just I 299 00:20:01,760 --> 00:20:05,840 Speaker 1: just don't know. You know, the political checks worked, uh 300 00:20:05,880 --> 00:20:09,639 Speaker 1: you know this time. Um, you know they prolonged and stuff, 301 00:20:09,640 --> 00:20:12,680 Speaker 1: but they worked. The question is how how that works 302 00:20:12,680 --> 00:20:15,080 Speaker 1: in the future. What should be done now? I mean 303 00:20:15,080 --> 00:20:18,480 Speaker 1: people are talking about exhibitions and what should be done? 304 00:20:18,560 --> 00:20:22,760 Speaker 1: Is there any clear path? Yeah? I mean I think 305 00:20:22,800 --> 00:20:24,760 Speaker 1: a lot of depends on you know, where people think 306 00:20:24,760 --> 00:20:28,960 Speaker 1: the problem is. Um, if people, especially Republicans this time, 307 00:20:29,359 --> 00:20:32,240 Speaker 1: have a lot of distrust in what was happening in state, 308 00:20:32,560 --> 00:20:34,480 Speaker 1: you know that there are two solutions. There's one is 309 00:20:34,520 --> 00:20:36,960 Speaker 1: to go to those states and say, provide greater clarity, 310 00:20:37,040 --> 00:20:40,600 Speaker 1: greater guidance, Um, you know, more robust remedies in your 311 00:20:40,680 --> 00:20:45,080 Speaker 1: judicial system. Uh, you know, more acts anti sort of 312 00:20:45,200 --> 00:20:48,240 Speaker 1: questions that can be answered by the legislature. Um, you 313 00:20:48,280 --> 00:20:50,879 Speaker 1: know things like that. You know that that would be 314 00:20:50,920 --> 00:20:53,399 Speaker 1: one way to go. Another is that the federal government 315 00:20:53,400 --> 00:20:55,280 Speaker 1: wants to look at these questions and say We're going 316 00:20:55,320 --> 00:20:59,840 Speaker 1: to enact some greater uniformities and legislation that provides some 317 00:21:00,600 --> 00:21:03,760 Speaker 1: higher levels of uniformity. That's something that might instill some 318 00:21:03,840 --> 00:21:07,320 Speaker 1: confidence if we can find some bipartisan solutions on that front. 319 00:21:07,320 --> 00:21:10,439 Speaker 1: And the problem is it typically tends to be uh 320 00:21:10,800 --> 00:21:13,199 Speaker 1: partisan solutions, which is the problem, right that that a 321 00:21:13,200 --> 00:21:17,200 Speaker 1: lot of you know, HR One, which is sort of uh, 322 00:21:17,359 --> 00:21:20,960 Speaker 1: the the We the People Act promulgated by Speaker Pelosi 323 00:21:21,040 --> 00:21:24,280 Speaker 1: and others, has been sort of a democratic which list 324 00:21:24,320 --> 00:21:27,000 Speaker 1: of of election of objectives that a lot of Republicans 325 00:21:27,000 --> 00:21:29,440 Speaker 1: are going to oppose. And so trying to find either 326 00:21:29,680 --> 00:21:33,320 Speaker 1: a bargain or some sort of neutral agreement about how 327 00:21:33,320 --> 00:21:36,080 Speaker 1: to proceed forward is going to be it's gonna be difficult, 328 00:21:36,119 --> 00:21:38,440 Speaker 1: I think. Um. So at this point, there's gonna be 329 00:21:38,480 --> 00:21:42,160 Speaker 1: a lot of shows about having commissions and integrity projects 330 00:21:42,160 --> 00:21:45,400 Speaker 1: and things like that, but you know, we've done those before. Um, 331 00:21:45,440 --> 00:21:47,000 Speaker 1: A lot of them don't go anywhere. We had to 332 00:21:47,000 --> 00:21:49,199 Speaker 1: help America Vote Act of two thousand two, which was 333 00:21:49,280 --> 00:21:52,200 Speaker 1: designed to help solve some of the problems from two 334 00:21:52,240 --> 00:21:55,720 Speaker 1: thousand UM and punch cards and things like that. And 335 00:21:55,720 --> 00:21:57,880 Speaker 1: and maybe we'll have a little bit of of sort 336 00:21:57,880 --> 00:22:02,520 Speaker 1: of good governance efforts going forward on the optical scan ballots, 337 00:22:02,560 --> 00:22:06,160 Speaker 1: on you know, requiring audits of elections, things like that. 338 00:22:06,400 --> 00:22:07,879 Speaker 1: But you know, with it, with all these things, you 339 00:22:07,920 --> 00:22:10,680 Speaker 1: can what might be a small bill can quickly steamroll 340 00:22:10,760 --> 00:22:12,639 Speaker 1: into a large bill if people want to put a 341 00:22:12,640 --> 00:22:14,960 Speaker 1: little bit of everything election related, and that can be 342 00:22:15,000 --> 00:22:18,159 Speaker 1: harder to get bipartisan consensus on. And the speeches that 343 00:22:18,240 --> 00:22:22,560 Speaker 1: you heard from Republicans who are objecting, was there anything 344 00:22:22,600 --> 00:22:26,720 Speaker 1: of substance? Yeah, I mean again, I think one of 345 00:22:26,720 --> 00:22:28,480 Speaker 1: the one of the harder things that's thinking about the 346 00:22:28,520 --> 00:22:32,920 Speaker 1: role of the legislature and the role of other UM 347 00:22:33,200 --> 00:22:35,800 Speaker 1: wings of the government. Right. And there's no question that 348 00:22:35,880 --> 00:22:41,760 Speaker 1: this election required states to be nimble. UM. COVID put 349 00:22:41,800 --> 00:22:44,639 Speaker 1: a lot of strain on the system. And while there 350 00:22:44,680 --> 00:22:46,840 Speaker 1: were a lot of state legislatures that took some action, 351 00:22:46,920 --> 00:22:51,000 Speaker 1: there were also a lot of things that executive officials did. UM. 352 00:22:51,040 --> 00:22:53,480 Speaker 1: You know, either where the law was silent or potentially, 353 00:22:53,520 --> 00:22:55,719 Speaker 1: depending on the state, I have been a little bit 354 00:22:55,760 --> 00:22:59,240 Speaker 1: contrary to what the legislature had intended. And so that, 355 00:22:59,640 --> 00:23:01,159 Speaker 1: you know, there are a lot of things about fraud 356 00:23:01,160 --> 00:23:02,800 Speaker 1: that I don't think Harriet the Day or you know, 357 00:23:02,880 --> 00:23:06,240 Speaker 1: had any weight signature checks things like that. UM. But 358 00:23:06,280 --> 00:23:08,639 Speaker 1: you're talking about this sort of allocation of responsibility in 359 00:23:08,680 --> 00:23:12,560 Speaker 1: the states. UM. You know, there's a little there's a 360 00:23:12,560 --> 00:23:15,680 Speaker 1: little smoke there to say, uh, you know, the state 361 00:23:15,760 --> 00:23:19,320 Speaker 1: legislatures were um, you know, getting kind of run over 362 00:23:19,480 --> 00:23:24,760 Speaker 1: by certain kinds of decisions from executive actors or consent 363 00:23:24,880 --> 00:23:29,800 Speaker 1: decrees entered into by uh, you know, executives with plaintiffs 364 00:23:29,800 --> 00:23:32,680 Speaker 1: groups that sued them. UM. But again, you know, I think, 365 00:23:32,880 --> 00:23:34,879 Speaker 1: you know, people look back at the election and a 366 00:23:34,920 --> 00:23:37,439 Speaker 1: lot of people participated, a lot of people were happy 367 00:23:37,480 --> 00:23:40,080 Speaker 1: with the options they had. UM. There were very low 368 00:23:40,200 --> 00:23:44,200 Speaker 1: rejection rates for absentee ballots with campbel opportunity to submit them. 369 00:23:44,240 --> 00:23:45,960 Speaker 1: You know, we had a lot of worries about post 370 00:23:45,960 --> 00:23:48,840 Speaker 1: office fiascos that never came through. So in terms of 371 00:23:48,840 --> 00:23:51,800 Speaker 1: the administration side, it all came through. UM. But you know, 372 00:23:51,880 --> 00:23:54,040 Speaker 1: when when a side loses and they look back and 373 00:23:54,080 --> 00:23:57,840 Speaker 1: they see those sorts of discrepancies between what what executive 374 00:23:57,840 --> 00:24:00,800 Speaker 1: officials did and what might have been the express legislative scheme, 375 00:24:00,840 --> 00:24:03,119 Speaker 1: and there's a lot of pressure. UM. So again I 376 00:24:03,119 --> 00:24:05,960 Speaker 1: think sometimes when courts considered these challenges. There's one from 377 00:24:06,000 --> 00:24:09,920 Speaker 1: Pennsylvania that went to the Supreme Court before election day, UM, 378 00:24:09,960 --> 00:24:12,440 Speaker 1: and the ballots haven't encountered yet. From from those from 379 00:24:12,440 --> 00:24:15,359 Speaker 1: those votes, UM, there's one sort of small challenge that 380 00:24:15,400 --> 00:24:17,560 Speaker 1: I think is the most interesting, and a lot of 381 00:24:17,560 --> 00:24:21,159 Speaker 1: others courts have rejected. Courts have looked at and said, now, 382 00:24:21,200 --> 00:24:24,320 Speaker 1: the executive has this authority. The legislature gave them the authority, 383 00:24:24,320 --> 00:24:27,879 Speaker 1: all these kinds of things. So, um, you know a 384 00:24:27,920 --> 00:24:31,360 Speaker 1: lot of the critiques just didn't didn't carry the day 385 00:24:31,119 --> 00:24:35,200 Speaker 1: in my view, um, despite the smallest kernel of truth 386 00:24:35,359 --> 00:24:39,199 Speaker 1: in some of them. And turning to Georgia, was it 387 00:24:39,320 --> 00:24:43,040 Speaker 1: the turnout? A lot of people are crediting Stacy Abrams 388 00:24:43,080 --> 00:24:47,080 Speaker 1: with the turnout. What's your take on what happened in Georgia? Yeah, 389 00:24:47,080 --> 00:24:49,600 Speaker 1: I mean, so many political questions to think about. There's 390 00:24:49,600 --> 00:24:51,399 Speaker 1: no question vot registration has gone up. Some of that 391 00:24:51,520 --> 00:24:54,880 Speaker 1: is probably attributable Stacey Abrams, but they've also instituted automatic 392 00:24:54,960 --> 00:24:57,639 Speaker 1: voter registration in the state of Georgia. So that's dramatically 393 00:24:57,640 --> 00:25:01,520 Speaker 1: increased vote registration. UM. George is precisely the kind of 394 00:25:01,560 --> 00:25:04,440 Speaker 1: state UM that's been you know over the last four 395 00:25:04,520 --> 00:25:08,000 Speaker 1: years that would be more attractive to Democratic candidates UM 396 00:25:08,119 --> 00:25:13,679 Speaker 1: as upwardly socially mobile, economically mobile, uh sort of state 397 00:25:13,920 --> 00:25:17,360 Speaker 1: that uh, you know, it's precisely the kind of suburban 398 00:25:17,440 --> 00:25:20,000 Speaker 1: voters the Democrats have been winning in droves over the 399 00:25:20,040 --> 00:25:23,119 Speaker 1: last four years. And so you look at the fact 400 00:25:23,119 --> 00:25:27,159 Speaker 1: that you know, President Trump lost, Arizona, lost Georgia, that 401 00:25:27,240 --> 00:25:29,840 Speaker 1: there was an Senate election in Alabama that was lost 402 00:25:30,040 --> 00:25:33,560 Speaker 1: right in toy seventeen, and maybe look at the candidates 403 00:25:33,560 --> 00:25:36,720 Speaker 1: in Georgia, especially uh when where one of them was 404 00:25:37,320 --> 00:25:40,280 Speaker 1: an appointment by the governor. H there was an appointment 405 00:25:40,280 --> 00:25:42,920 Speaker 1: by the governor in Arizona, or the candidate lost in 406 00:25:43,040 --> 00:25:45,520 Speaker 1: an election in the same way, um, and there was 407 00:25:45,520 --> 00:25:48,920 Speaker 1: an appointment by the governor who lost in Alabama and 408 00:25:48,920 --> 00:25:52,280 Speaker 1: toy seventeen. You know, sometimes the candidates matter and sometimes 409 00:25:52,320 --> 00:25:54,760 Speaker 1: it's it's just sort of the politics of the place. 410 00:25:54,800 --> 00:25:56,639 Speaker 1: So you know, we look at Georgia, there were there 411 00:25:56,680 --> 00:25:59,840 Speaker 1: was a Republican who won a statewide state election in 412 00:25:59,880 --> 00:26:02,480 Speaker 1: the same race that two Democratic senators in the United 413 00:26:02,480 --> 00:26:05,719 Speaker 1: States won that race. So it's a state that, you know, 414 00:26:05,760 --> 00:26:07,679 Speaker 1: like a lot of states, is more complicated. May have 415 00:26:07,840 --> 00:26:10,200 Speaker 1: to give it credit for and and we'll just see 416 00:26:10,240 --> 00:26:14,840 Speaker 1: what kinds of recruitment and and interest there is in 417 00:26:14,840 --> 00:26:18,120 Speaker 1: in the politics of that state going forward. Because the 418 00:26:18,160 --> 00:26:22,919 Speaker 1: results for us Off and Warnock were so close, I 419 00:26:22,920 --> 00:26:25,600 Speaker 1: mean they were still alike. Does it seem as if 420 00:26:25,640 --> 00:26:30,040 Speaker 1: people in Georgia were voting Democratic Republican, they weren't necessarily 421 00:26:30,119 --> 00:26:33,120 Speaker 1: voting for the person. Yeah. I mean, you very rarely 422 00:26:33,200 --> 00:26:35,880 Speaker 1: get what's described as a double barrel election, right where 423 00:26:35,920 --> 00:26:39,680 Speaker 1: you get to Senate candidates on the ballot running running 424 00:26:39,680 --> 00:26:42,080 Speaker 1: at the same time. And a lot of people have 425 00:26:42,119 --> 00:26:45,280 Speaker 1: written about the increased nationalization of politics over the last 426 00:26:45,400 --> 00:26:48,280 Speaker 1: forty years and that increasingly, you know, we viewed this 427 00:26:48,320 --> 00:26:50,920 Speaker 1: a sort of Democratic Republican and you know, in this 428 00:26:51,040 --> 00:26:53,399 Speaker 1: race in particular, it was kind of changed and defined 429 00:26:53,520 --> 00:26:56,120 Speaker 1: control of the Senate if it's both Democrats or not. 430 00:26:56,359 --> 00:26:58,800 Speaker 1: So I think that only sort of heightened the kind 431 00:26:58,800 --> 00:27:01,720 Speaker 1: of stakes for a race like this. It's remarkable to 432 00:27:01,800 --> 00:27:04,840 Speaker 1: meet a nationalization of politics. To think about these elections, 433 00:27:04,880 --> 00:27:08,320 Speaker 1: that the most expensive Senate elections in history, that we're 434 00:27:08,320 --> 00:27:11,240 Speaker 1: spending a long time talking about. You think it's it's 435 00:27:11,240 --> 00:27:13,480 Speaker 1: a Georgia Senate election, it's just George general. But but 436 00:27:13,600 --> 00:27:15,679 Speaker 1: you think about the impact that it has, and I 437 00:27:15,720 --> 00:27:18,120 Speaker 1: think that this has driven a lot of the focus 438 00:27:18,160 --> 00:27:21,359 Speaker 1: and the turnout that happens. Thanks Derek, that's Derek Muller, 439 00:27:21,440 --> 00:27:24,520 Speaker 1: Professor at the University of Iowa Law School. And that's 440 00:27:24,560 --> 00:27:26,800 Speaker 1: it for this edition of the Bloomberg Law Show. I'm 441 00:27:26,880 --> 00:27:29,840 Speaker 1: June Grasso. Thanks so much for listening, and please join 442 00:27:29,920 --> 00:27:32,920 Speaker 1: us at ten pm Eastern every night for The Bloomberg 443 00:27:33,000 --> 00:27:34,920 Speaker 1: Law Show right here on Bloomberg Radio.