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

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Speaker 2: Yesterday, a federal judge temporarily blocked President Trump from ousting

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Speaker 2: Federal Reserve Governor Lisa Cook over allegations of mortgage fraud,

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Speaker 2: an order that allows Cook to attend a highly anticipated

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Speaker 2: FED policy meeting next week to vote on whether to

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Speaker 2: lower interest rates. Today, the Trump administration appealed that order

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Speaker 2: to the DC Circuit Court of Appeals, joining me is

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Speaker 2: Bloomberg Intelligence senior litigation analyst Elliott Stein.

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Speaker 1: Elliott.

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Speaker 2: Federal Judge Ga Cobb found that Trump likely violated the

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Speaker 2: Federal Reserve Act and Cook's due process rights. Start by

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Speaker 2: telling us about her reasoning under the Federal Reserve Act.

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Speaker 1: Sure So, on that issue, she said that the four

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Speaker 1: cause standard wasn't met because, even though it's not defined

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Speaker 1: in the statute, based on the history and the context

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Speaker 1: around its insertion into the Federal Reserve Act, it suggested

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Speaker 1: strongly that cause requires some sort of event while the

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Speaker 1: person is in office that can affect how they carry

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Speaker 1: out their duties in that role, and in this case,

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Speaker 1: she said that wasn't met because the allegations pertain to

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Speaker 1: conduct in twenty twenty one, before Lisa Cook was confirmed

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Speaker 1: to the Federal Reserve Board.

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Speaker 2: The judge said, moreover, it would incentivize the president and

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Speaker 2: subordinates to dig up prior conduct, however insubstantial to justify

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Speaker 2: removal from the board, even where the board member has

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Speaker 2: been up to that point performing their statutory duties impeccably.

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Speaker 2: Was that sort of a shot at what happened here

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Speaker 2: where Federal Housing Finance Agency Director Bill Poulty dug up

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Speaker 2: these allegations from mortgages that Cook obtained in twenty twenty one.

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Speaker 1: Yeah, yeah, I think that's a fair interpretation. And in

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Speaker 1: other parts of the opinion, Judge Cobb said, you know,

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Speaker 1: cause can't mean sort of vague, unsubstantiated allegations without any

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Speaker 1: form of investigation. But I thought what was interesting in

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Speaker 1: the opinion was that Judge Cobb did say there could

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Speaker 1: be circumstances where the conducted issue takes place before the

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Speaker 1: person is in office. But then let's say that person

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Speaker 1: is convicted while they're in office. Judge Cobbs suggested that

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Speaker 1: conviction could meet the four cause standards, So you know,

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Speaker 1: that scenario could also incentivize people to dig up dirt

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Speaker 1: from years ago. So I'm not really sure that example

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Speaker 1: that Judge Cobb used would eliminate the possibility of, you know,

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Speaker 1: political opponents trying to dig up dirt.

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Speaker 2: Did she comment at all on the explanations from Cook's

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Speaker 2: lawyers that if there were any eras, she didn't mean

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Speaker 2: to deceive anyone, No one was harmed, and perhaps that

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Speaker 2: even this was a raical error.

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Speaker 1: She did sort of allude to that, I think in

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Speaker 1: a footnote if I recall correctly. But that sort of

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Speaker 1: goes to the due process part of the opinion, right

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Speaker 1: where Judge Cobb said that in addition to the statutory violation,

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Speaker 1: there was a constitutional violation because Lisa Cook didn't get

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Speaker 1: proper notice or an opportunity to be heard before she

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Speaker 1: was removed, And.

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Speaker 2: So the judge was saying that finding out from Trump

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Speaker 2: on social media.

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Speaker 1: Was not enough, right exactly. Yeah, that went to the

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Speaker 1: notice part of the equation. And then you know, an

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Speaker 1: opportunity to be heard also has to be satisfied, and

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Speaker 1: for that there has to be some sort of formal

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Speaker 1: hearing essentially, and Judge Cob cited to other cases where

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Speaker 1: officials were removed for cause and there usually was some

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Speaker 1: sort of formal hearing where the official could present their

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Speaker 1: side of the story.

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Speaker 2: Tell us a little bit about Cook's allegations that Trump's

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Speaker 2: moved to auster is politely motivated.

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Speaker 1: Cook's point is you can't separate allegations against Lisa Cook

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Speaker 1: from the months of accusations against Jerome Powell and then

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Speaker 1: other comments President Trump has made about trying to gain

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Speaker 1: a majority on the Federal Reserve Board. And so that's

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Speaker 1: the context that Lisa Cook is pointing to as to

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Speaker 1: why she thinks the mortgage frount accusations are a pretext

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Speaker 1: just trying to remove Federal Reserve Board governors for policy disagreements, essentially,

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Speaker 1: because even the Trump administration conceded that you can't satisfy

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Speaker 1: the four cause requirement by removing someone for a policy disagreement.

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Speaker 2: So that ruling came down yesterday and today already the

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Speaker 2: Trump administration is appealing.

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Speaker 1: Yep, no surprise there.

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Speaker 2: No surprise. But have they stated their grounds for appeal yet?

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Speaker 1: So I've only seen the notice of appeal so far,

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Speaker 1: and I've been trying to refresh at dock it to

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Speaker 1: get others are Yeah, I've been refreshing that frantically. And

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Speaker 1: this will go to an emergency motions panel on the

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Speaker 1: DC's circuit. It seems from a different case where I

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Speaker 1: was able to track down the emergency Motions panel in

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Speaker 1: that case, it seems like it'll be a favorable panel

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Speaker 1: to Lisa Cook in the sense that it's the Biden

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Speaker 1: appoint and an Obama appoint and then a trumpet point e,

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Speaker 1: so sort of two judges that are probably going to

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Speaker 1: be more sympathetic to Lisa Cook's arguments. And then from there,

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Speaker 1: assuming the government loses at the DC Circuit panel stage,

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Speaker 1: I presume the administration will go to the Supreme Court.

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Speaker 2: The FED Board meeting, the highly anticipated FED Board meeting.

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Speaker 2: So Cook will be able to go to that meeting

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Speaker 2: if this decision is upheld.

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Speaker 1: Right, yeah, exactly. Unless this decision is stayed, she will

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Speaker 1: serve at that meeting. And I do think it's possible

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Speaker 1: that the DC Circuit Emergency Motions Panel can rule by then,

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Speaker 1: and again, if it's a favorable panel to Lisa Cook,

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Speaker 1: as I suspect it will be, I don't envision Judge Cobbs'

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Speaker 1: decision being put on hold, in which case Lisa Cook

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Speaker 1: would be able to participate at that meeting. I don't

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Speaker 1: think we'll get anything from the Supreme Court by the

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Speaker 1: September sixteenth date, unless the DC Circuit moves even faster

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Speaker 1: than I think they're going to. I mean, it's possible,

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Speaker 1: It's true they you know, you could get a DC

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Speaker 1: Circuit panel ruling on let's say Monday the fifteenth, and

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Speaker 1: an administrative to stay by the Supreme Court like the

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Speaker 1: next day or even that day. So it's not out

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Speaker 1: of the realm of possibility. But I still think the

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Speaker 1: more important dates are in February, not next week, because

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Speaker 1: next week Lisa Cook's only one vote out of twelve,

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Speaker 1: and I don't think it will make all that much

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Speaker 1: of a difference. But in February, you know, if President

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Speaker 1: Trump can get a more favorable balance on the Federal

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Speaker 1: Reserve Board, let's say he's able to move Lisa Cook

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Speaker 1: out of her role and Stephen Miron get confirmed as

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Speaker 1: he's expected to, you know, you could potentially have a

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Speaker 1: three to three balance on the Federal Reserve Board, the

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Speaker 1: three who are sympathetic to Trump and three who aren't.

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Speaker 1: And at that point you may not get the regional

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Speaker 1: Reserve Bank presidents reappointed in February, in which case you

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Speaker 1: potentially could get a shift on the FMC in a

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Speaker 1: direction that's more favorable to President Trump.

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Speaker 2: And what are the odds of Cook prevailing when this

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Speaker 2: does get to the Supreme Court? If when I think

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Speaker 2: when is a safe.

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Speaker 1: Bed, I mean, I think it's an extremely close case,

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Speaker 1: but I do give her the slight edge. It's a

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Speaker 1: Supreme Court. The three justices appointed by Democrats are likely

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Speaker 1: to rule in her favor because they'll be more concerned

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Speaker 1: about FED independence and be more concerned about an expensive

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Speaker 1: executive authority. I think Justice is Thomas Alito and probably

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Speaker 1: Gorsicic are more likely to rule for President Trump. And

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Speaker 1: then you have sort of the three who have now

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Speaker 1: become the middle Roberts Kavanaugh and Amy Cony Barrett. And

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Speaker 1: you know, at that point Lisa Cook needs to get

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Speaker 1: two of them, and I think she has a pretty

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Speaker 1: good shot at that. Justice Kavanaugh in the past has

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Speaker 1: written in opinions concerning the four cause removal restriction that

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Speaker 1: he scented strongly that the FED is different from other agencies,

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Speaker 1: similar to what the Supreme Court said in May and

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Speaker 1: the Wilcox decision, and given that they do seem to

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Speaker 1: distinguish the FED from other agencies. They have to give

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Speaker 1: some sort of effect to the four cause removal restriction

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Speaker 1: so that it's not rendered meaningless. And with that in mind,

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Speaker 1: I think they probably would agree with parts of Dudge

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Speaker 1: Cobb's decision that the four cause removal restriction has to

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Speaker 1: mean something and that the mere allegations here didn't need it.

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Speaker 2: And Elliott, has the FED made any more statements since

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Speaker 2: the judge's decision.

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Speaker 1: I haven't seen a statement today. I may have missed one,

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Speaker 1: I know. Pass he said they were just abide by

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Speaker 1: the court decision, which makes sense. And that's essentially why

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Speaker 1: Lisa Cook named care Powell and the Federal Reserve Board

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Speaker 1: both individually and collectively as defendants, because in Judge Cobb's ruling,

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Speaker 1: you know, she essentially enjoined the Federal Reserve Board from

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Speaker 1: a sectuating President Trump's termination letter. So, you know, I

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Speaker 1: don't think the FED necessary anything other than simply abide

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Speaker 1: by the decision.

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Speaker 2: So we'll see now how fast the DC Circuit Emergency

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Speaker 2: Panel acts. Thanks so much, Elliott. That's Elliott Stein, Bloomberg

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Speaker 2: Intelligence Senior Litigation analyst. Coming up next on The Bloomberg

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Speaker 2: Law Show later this month. Chief Justice John Roberts celebrates

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Speaker 2: twenty years being the chief and in that time, the

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Speaker 2: Roberts Court has moved far to the right, changing the

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Speaker 2: law in areas from abortion and guns to race and

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Speaker 2: presidential power. I'm June Grosso and you're listening to Bloomberg.

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Speaker 2: Chief Justice John Roberts famously compared judges to umpires during

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Speaker 2: his confirmation hearings in twenty ten.

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Speaker 3: Judges are like umpires. Umpires don't make the rules, they

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Speaker 3: apply them. The role of an umpire and a judge

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Speaker 3: is critical. They make sure everybody plays by the rules,

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Speaker 3: but it is a limited role. Nobody ever went to

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Speaker 3: a ballgame to see the umpire.

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Speaker 2: Now, twenty years later, looking at the Court's decisions under

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Speaker 2: roberts stewardship, just applying the rules in a limited role

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Speaker 2: doesn't seem to have been the practice of the Roberts Court.

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Speaker 2: With its conservative majority and now super majority, the Court

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Speaker 2: has changed the law on abortion, gun rights, religious rights, race,

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Speaker 2: agency authority, and residential power, overturning precedent along the way

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Speaker 2: and moving more and more to the right. My guest

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Speaker 2: is constitutional law professor Eric Siegel of Georgia State University.

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Speaker 2: Let's start with the Court itself. Is the Roberts Court

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Speaker 2: the most conservative Supreme Court in our history.

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Speaker 4: You know, it is challenging to compare across decades, and

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Speaker 4: also I think to some degree what is conservative is

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Speaker 4: in the eye of the beholder. It is certainly the

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Speaker 4: most conservative court of my lifetime, which is sixty seven years.

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Speaker 4: And if I was living in nineteen thirty four, I

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Speaker 4: would be very mad to Supreme Court if I was

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Speaker 4: a liberal or a progressive. They were really mad to

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Speaker 4: Supreme Court, so much so that FDR went on the

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Speaker 4: biggest media of the day and said, we have to

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Speaker 4: save the country from the court and save the Constitution

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Speaker 4: from the Court. So it's a little difficult for me

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Speaker 4: to say liberals and progressive today are angrier than liberals

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Speaker 4: and progressives were in nineteen thirty four when the New

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Speaker 4: Deal was a catastrophe for America. It is certainly as

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Speaker 4: conservative at any court I think in American history.

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Speaker 2: Roberts famously said during his confirmation hearing that judges are

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Speaker 2: like umpires. Umpires don't make the rules, they apply them.

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Speaker 2: Has he behaved like an umpire?

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Speaker 1: Well?

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Speaker 4: Justice Kavanaugh repeated that years later as well, despite the

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Speaker 4: mockery and laughter of virtually all court watchers pundits across

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Speaker 4: the political spectrum on that statement by Justice Roberts. They're

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Speaker 4: not umpires. They've never been umpires. In eighteen fifty seven,

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Speaker 4: Congress wanted to end slavery in the territories. Congress had

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Speaker 4: the power to do that under the Constitution. The Court

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Speaker 4: made up a new rule and said no. From nineteen

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Speaker 4: hundred to nineteen thirty six, the Court struck down hundreds

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Speaker 4: of laws about minimum wages, overtime rules, labor conditions. The

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Speaker 4: Constitution allows Congress to do that. The Court wasn't playing

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Speaker 4: like an empire. And I think conservatives would fairly say

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Speaker 4: that cases like Grow versus Late were not the justices

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Speaker 4: acting like umpires. So no, it was a silly statement

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Speaker 4: when he made it. It was even sillier for Justice

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Speaker 4: Kavanaughs to repeat it during this confirmation airing. The Constitution

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Speaker 4: is a very vague document when it comes to litigation.

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Speaker 4: There are some specific things. The president has to be

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Speaker 4: thirty five to centers from every state. Inauguration day is

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Speaker 4: January twentieth, which by the way, is too long from November,

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Speaker 4: you know, But we don't litigate those clauses. We litigate

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Speaker 4: due process, equal protection, cruel and usual punishment, unreasonable searchers

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Speaker 4: and seizures, and so on. It'd be saying to an umpire,

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Speaker 4: you get to decide what's fair in a baseball game.

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Speaker 4: That's not what umpires do in baseball. They have some discretion.

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Speaker 4: Of course, we've told the Supreme Court in effect make

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Speaker 4: the constitutional rules for America, and that has nothing to

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Speaker 4: do with sports.

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Speaker 2: Someone There are a lot of areas where the Supreme

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Speaker 2: Court has changed or reshaped the law. Most people know

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Speaker 2: about abortion rights and gun rights, But how has the

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Speaker 2: Court changed the law around race? And what's been Roberts's

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Speaker 2: role in changing the.

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Speaker 4: Rules other than the presidential immunity decision in Trump versus

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Speaker 4: United States, which almost no legal scholars predicted liberal, moderate

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Speaker 4: or conservative and has run of the worst opinions in

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Speaker 4: Supreme Court history. In my opinion and many others, leaving

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Speaker 4: aside that opinion written by Justice Roberts, I think he's

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Speaker 4: done the most damage to America when it comes to race,

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Speaker 4: and it started in his very first term when the

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Speaker 4: cities of Seattle and Louisville. Let's take Louisville for a minute.

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Speaker 4: Louisville had segregation under the law for many, many years,

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Speaker 4: those schools were still segregated. So at the very local level,

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Speaker 4: students and teachers and parents and school board members and

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Speaker 4: voters got together and came up with a very limited

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Speaker 4: plan to make sure that the public schools in Louisville

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Speaker 4: had some minimal degree of desegregation so that white kids

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Speaker 4: and black kids in Louisville could go to school together.

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Speaker 4: And no judge ordered this. This was volunteer and in

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Speaker 4: his very first term, the Roberts Court struck that down.

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Speaker 4: And that's when Justice Roberts said the famous line, the

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Speaker 4: way to stop discrimination based on race is to stop

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Speaker 4: discriminating based on race. In the context of Louisville, Kentucky,

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Speaker 4: which discriminated in the basis of race legally for a century, that's,

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Speaker 4: in my opinion, a very bizarre statement. And even Justice Kennedy,

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Speaker 4: who was a fifth vote in that case, disagreed with

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Speaker 4: that statement. So it started there. Everybody knows that Justice

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Speaker 4: Roberts does not like voting rights. As a young attorney

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Speaker 4: in the Reagan administration in nineteen eighty one, he wrote

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Speaker 4: some scathing things about the Voting Rights Act, and then,

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Speaker 4: of course, in Shelby County versus holder. He was able

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Speaker 4: to concoct a new rule that Congress can't treat different

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Speaker 4: states differently without a strong reason, and struck down a

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Speaker 4: law that was passed by a unanimous Senate and signed

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Speaker 4: by a Republican president. That law was struck down, and

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Speaker 4: then the very next day Texas and North Carolina passed

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Speaker 4: voting rules they could not have passed prior to that

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Speaker 4: law being struck down. They've also interpreted the Voting Rights

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Speaker 4: Act very narrowly, and I think this next year even

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Speaker 4: more narrowly again. And then, of course there's the Affirmative

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Speaker 4: Action case, which overturned fifty years of president and said

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Speaker 4: colleges and universities are not allowed to use race at

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Speaker 4: all in their admissions process. It says, if Justice Roberts

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Speaker 4: thinks America started in two thousand and six when he

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Speaker 4: became Chief Justice, from maybe nineteen eighty one when he

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Speaker 4: was an attorney for the Justice Department and race was

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Speaker 4: never a problem in this country, it's as if he

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Speaker 4: thinks we can just snap our fingers and all of

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Speaker 4: our racial divisions will go away, when all the data

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Speaker 4: shows that black Americans today economically are really not any

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Speaker 4: significantly better off than they wore twenty thirty, forty fifty

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Speaker 4: years ago, and our justice system is infected with racism,

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Speaker 4: and Justice Roberts has really turned a cold shoulder to

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Speaker 4: dealing with those problems.

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Speaker 2: You mentioned presidential immunity and that decision, which I agree

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Speaker 2: no one predicted and which was written by the Chief Justice.

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Speaker 2: How has it changed the powers of the president.

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Speaker 4: I'm teaching that case tonight and I had a little

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Speaker 4: bit of a new observation this morning about that case.

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Speaker 4: It's a little bit wonky, but some people remember that

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Speaker 4: a Supreme Court with nine Democrats in nineteen fifty two

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Speaker 4: told a Democrat president, Harry Truman, that he couldn't seize

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Speaker 4: the steel mills in time of war. That's nine Democrats.

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Speaker 4: Six of them voted, you can't do that, mister president,

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Speaker 4: and he said, very serious things are why you wanted

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Speaker 4: to do it. And in that case, there's a famous

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Speaker 4: opinion by Justice Jackson, again little bit wonky, but not really,

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Speaker 4: where he divided these kind of cases into three categories,

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Speaker 4: where Congress tells the president he can do something, where

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Speaker 4: Congress tells the president he can't, and a twilight zone

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Speaker 4: in between. Now, not Justice Roberts's immunity decision to me

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Speaker 4: that he thought he was doing something statesmanlike. That case

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Speaker 4: had three buckets, and that case is still good law

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Speaker 4: for official action, and that case is known as one

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Speaker 4: of the most important cases in separation of power system.

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Speaker 4: Justice Roberts divided presidential immunity into three buckets as well

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Speaker 4: for actions that he takes in his core executive functions

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Speaker 4: like commander in chief. He's absolutely immune from future criminal

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Speaker 4: prosecution for unofficial conduct, private conduct. He has no immunity

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Speaker 4: at all. He goes out to a bar, drinks and

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Speaker 4: punches somebody. He has no immunity for things that are

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Speaker 4: in between that where Congress has authorized him to act

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Speaker 4: or not sure if he has the authority. He has

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Speaker 4: a strong presumptive immunity, but that would depend on the

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Speaker 4: fact it's three categories. And I think he is trying

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Speaker 4: to mirror what Justice Jackson is a very popular justice

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Speaker 4: among all people, liberal, conservative and moderate, was trying to do.

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Speaker 4: And if he had stopped there, I think we all

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Speaker 4: would have said, Okay, that kind of makes sense. But

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Speaker 4: he didn't. They two wrinkles, and this was five justices.

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Speaker 4: Amy Coney Barrett did not agree with this, he said,

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Speaker 4: how do we distinguish between official conduct and unofficial conduct?

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Speaker 4: And what he said was two things. He can't question

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Speaker 4: motives and you can't use obviously official acts to prove

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Speaker 4: unofficial acts. Those two evidentiary rules make the president effectively

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Speaker 4: immune from prosecution real quickly. If the president and the

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Speaker 4: Attorney general are walking down the street and they see

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Speaker 4: Segull walking down the street and they say, you know what,

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Speaker 4: he's a national security risk, and that president takes out

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Speaker 4: his gun and shoots me in cold blood, that three

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Speaker 4: retires from the presidency, they prosecute him for murder. His

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Speaker 4: motive for shooting me cannot be examined. So when he

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Speaker 4: says I did it for national security reasons, we're done.

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Speaker 4: The attorney general might testify, ask not why he did it.

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Speaker 4: He did it. Doesn't like Siegel, that testimony doesn't come

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Speaker 4: in because testimony about the evidence that he has with

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Speaker 4: his advisors about any kind of conduct is basically an admissive.

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Speaker 4: All of that, as a long way of saying, puts

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Speaker 4: the president above the law. And there is no effective

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Speaker 4: way to criminally prosecute a president unless the conduct, well

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Speaker 4: even if the conduct is unofficial, he's going to say

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Speaker 4: he had an official reason for doing it, and we're

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Speaker 4: not allowed to talk about his motive. That's what confused everybody,

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Speaker 4: and that's a real problem going for I was shocked

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Speaker 4: the other day when an interviewer asked Justice Amy Coney Barrett,

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Speaker 4: who's doing her book tour, if the president ordered Seal

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Speaker 4: Team six to kill a political rival, would that be

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Speaker 4: immunized by the Trump decision? Now, in any sane world,

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Speaker 4: the answer would be, of course not. The President can't

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Speaker 4: go around ordering the Seals themes to kill his political rivals,

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Speaker 4: and so she should have said, of course not. But

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Speaker 4: what she said was, I don't know. And that's the

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Speaker 4: country we're living in right now, and that's the effect

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Speaker 4: of the immunity decision, and that's just really a shame.

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Speaker 2: And looking at the emergency docket, or the so called

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Speaker 2: shadow docket, the Supreme Court has sided with the administration

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Speaker 2: in almost all the emergency cases since January, on everything

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Speaker 2: from mass federal layoffs to banning transgender people from the

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Speaker 2: military to lifting restrictions on immigration stops. Even though administration

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Speaker 2: officials have been so critical of federal judges and went

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Speaker 2: so far as to sue the entire bench of federal

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Speaker 2: judges in Maryland.

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Speaker 4: I don't know what's happening. It is my view that

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Speaker 4: Supreme Court justices are and have always been ideological. If

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Speaker 4: you had life tenure, an effectively unreviewable power, if you've

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Speaker 4: got four of your committee members to agree with you,

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Speaker 4: or court members, you would impose your ideology, and so

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Speaker 4: would I. We felt strongly about But the Court has

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Speaker 4: not always been partisan. The Casey decision which affirmed Rovers's

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Speaker 4: wead had seven Republicans. I just mentioned that a court

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Speaker 4: with nine Democrats to the Democrat president, you can't do

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Speaker 4: something during time of war. So the Court's always been ideological,

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Speaker 4: but not partisans. The Roberts Court, from the very beginning,

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Speaker 4: it's overwhelming ideological value is partisanship. They want to help

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Speaker 4: the Republican Party, and almost everything they've done can be

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Speaker 4: explained if you see the Court through the lens of

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Speaker 4: an institution that is trying to help the Republican part.

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Speaker 4: And so this doesn't surprise me at all. What's happening.

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Speaker 4: Some of us thought maybe because Donald Trump was president,

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Speaker 4: the Court would be less partisan than it has been.

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Speaker 4: If anything, has been more partisan this time around, without

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Speaker 4: giving us reasons. As Professor Steve Loddick has repeatedly pointed

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Speaker 4: out in his book The Shadow Docket and other places,

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Speaker 4: they don't give us reasons for many of these decisions.

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Speaker 4: And we must remember three of these people represented George

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Speaker 4: Bush during Bush Bush's Corps. They all came up through

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Speaker 4: core Republican Party rank, and I will say the three

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Speaker 4: Democratic nominees also favorite Democrats. But usually there's a balance

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Speaker 4: of values between partisanship and personal ideology. Justice Kennedy famously

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Speaker 4: voted for gay rights. Justice O'Connor kept affirmative action a lot.

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Speaker 4: Justice White, a Democrat, voted conservative many many times. These

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Speaker 4: justices are Republicans first, foremost, and almost always, which doesn't

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Speaker 4: mean Republicans always win, because the court sometimes wants to

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Speaker 4: throw people a bone, and also because on little issues

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Speaker 4: they might disagree with the Republican Party platform, but on

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Speaker 4: all the big issues, this is the Republican court.

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Speaker 2: Coming up next, is Roberts really an institutionalist? This is Bloomberg.

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Speaker 2: I've been talking to constitutional law professor Eric Siegel of

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Speaker 2: the Georgia State University about Chief Justice John Roberts celebrating

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Speaker 2: twenty years as Chief Justice. Come the end of the

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Speaker 2: month and how the Roberts Court has changed the law.

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Speaker 2: Roberts did write the opinions, say saving Obamacare, and in

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Speaker 2: the Dobbs decision, he wouldn't have gone so far as

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Speaker 2: to actually overturn Roe v. Wade. So is it Roberts

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Speaker 2: that's moving the Court to the right or is it

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Speaker 2: the presence of the three Trump appointees that gave the

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Speaker 2: conservatives a super majority that the liberals just can't fight.

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Speaker 4: There's no question those three Trump appointees have played and

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Speaker 4: will continue to play a significant role in moving the

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Speaker 4: court far to the right. But it's also a little

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Speaker 4: bit of a myth that Justice Roberts was ever anything

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Speaker 4: less than an extremely conservative justice. Yes, he did save

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Speaker 4: part of Obamacare. Remember he did not save the medicaid

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Speaker 4: part of Obamacare, which was actually a key part of

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Speaker 4: that law. And by striking down that part of the law,

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Speaker 4: the Court did serious damage to Obamacare in complicated ways

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Speaker 4: that health policy experts could explain. Now, when I say

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Speaker 4: that in public, people often say, but that was seven

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Speaker 4: to two. But we all know from reporting done that

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Speaker 4: Justice Roberts coerced Kagan and Bryer to join that part

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Speaker 4: of the opinion so he did save Obamacare as a whole,

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Speaker 4: but he cut out a big part of it, which

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Speaker 4: really hurt that law. Before twenty twelve, in the seven

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Speaker 4: years preceding that case, he had never joined with the

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Speaker 4: liberals in a five to four opinion. Since then, he

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Speaker 4: has done it. He's joined the liberals a few times,

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Speaker 4: and you're right about Dobbs, but there is no question

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Speaker 4: that he would have eventually voted to overturn Row. Justice

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Speaker 4: Roberts's formula has been consistently in voting rights race cases

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Speaker 4: and abortion cases and separation of powers cases. Punch holes

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Speaker 4: in the precedent, punch holes in the precedent, then reverse

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Speaker 4: the president. There is no doubt he would have eventually

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Speaker 4: voted to overturn Roe versus Ways. So I think even

436
00:25:55,080 --> 00:25:58,480
Speaker 4: a five to four court run by Justice Roberts would

437
00:25:58,560 --> 00:26:01,919
Speaker 4: be an extremely concerned court, And with the exception of

438
00:26:02,040 --> 00:26:05,439
Speaker 4: Justice Kennedy's votes on affirmative action in gay rights, was

439
00:26:05,560 --> 00:26:08,920
Speaker 4: an extremely conservative court for most of Justice Roberts's court.

440
00:26:09,280 --> 00:26:12,639
Speaker 2: So then do you buy the theories that Roberts is

441
00:26:12,640 --> 00:26:16,080
Speaker 2: an institutionalist and an incrementalist.

442
00:26:16,400 --> 00:26:20,639
Speaker 4: He is an incrementalist and strategy He is absolutely not

443
00:26:20,880 --> 00:26:24,520
Speaker 4: an institutionalist, and I back wrote an article for the

444
00:26:24,520 --> 00:26:27,639
Speaker 4: wake Forest Law Review saying that this is going to

445
00:26:27,680 --> 00:26:30,760
Speaker 4: sound personal, So I apologize to your listeners if it

446
00:26:30,800 --> 00:26:31,520
Speaker 4: sounds personal.

447
00:26:31,720 --> 00:26:32,040
Speaker 1: It's not.

448
00:26:32,320 --> 00:26:35,320
Speaker 4: I'm just kind of a scholar trying to figure things out.

449
00:26:36,200 --> 00:26:41,199
Speaker 4: Justice Roberts leads with Huberts, the way to stop discrimination

450
00:26:41,320 --> 00:26:43,920
Speaker 4: based on race is to stop discriminating based on rapes.

451
00:26:44,040 --> 00:26:47,120
Speaker 4: His state is one of the most huboristic statements I've

452
00:26:47,119 --> 00:26:50,480
Speaker 4: ever heard, because I don't know how to solve America's

453
00:26:50,520 --> 00:26:53,560
Speaker 4: racial problems. Frankly, you don't know how to solve America's

454
00:26:53,600 --> 00:26:56,600
Speaker 4: racial problems. I don't think Justice Roberts knows how to

455
00:26:56,600 --> 00:27:01,280
Speaker 4: solve America's racial problems. They're complex. Maybe affirmative action is good,

456
00:27:01,359 --> 00:27:03,359
Speaker 4: maybe it's bad. You know, I'm not an expert on

457
00:27:03,400 --> 00:27:06,520
Speaker 4: that kind of thing. I'm an expert on constitutional law.

458
00:27:06,800 --> 00:27:09,919
Speaker 4: But the idea that simple statement captures all of the

459
00:27:09,960 --> 00:27:13,320
Speaker 4: complexities is full of hubrits. His striking down as the

460
00:27:13,400 --> 00:27:16,639
Speaker 4: voting writes that based on a principle that was completely

461
00:27:16,680 --> 00:27:21,479
Speaker 4: inconsistent with a major Supreme Court presidence from nineteen sixty five, Again,

462
00:27:21,640 --> 00:27:24,600
Speaker 4: a law passed by a unanimous Senate signed by a

463
00:27:24,600 --> 00:27:29,000
Speaker 4: Republican president was full of hubris and his separation of

464
00:27:29,119 --> 00:27:32,640
Speaker 4: powers decisions, and he is the person who normally writes them.

465
00:27:32,800 --> 00:27:36,280
Speaker 4: Where he is telling the Congress, you're not allowed to

466
00:27:36,320 --> 00:27:39,720
Speaker 4: limit the ways the president can fire the heads of

467
00:27:40,240 --> 00:27:44,639
Speaker 4: independent agencies. Is overturning presents that go back to the

468
00:27:44,720 --> 00:27:49,840
Speaker 4: New Deal and changing the way the American governmental system works.

469
00:27:50,680 --> 00:27:53,920
Speaker 4: That's not what umpires do, and that's not what an

470
00:27:53,920 --> 00:27:57,640
Speaker 4: institutionalist does. I don't think he's an institutionalist at all.

471
00:27:57,720 --> 00:28:01,240
Speaker 4: I do think he's an incrementalist as a matter of strategy,

472
00:28:01,640 --> 00:28:03,040
Speaker 4: not as a matter of substance.

473
00:28:03,760 --> 00:28:06,640
Speaker 2: Another area where there seems to be a lot of

474
00:28:06,840 --> 00:28:13,520
Speaker 2: activity lately and more changes to come is federal regulatory authority.

475
00:28:14,200 --> 00:28:16,320
Speaker 2: Tell us a little of what's been happening there.

476
00:28:16,960 --> 00:28:22,040
Speaker 4: So in November of twenty sixteen, after President Trump was

477
00:28:22,080 --> 00:28:26,080
Speaker 4: elected the first time, I wrote an essay saying that

478
00:28:26,560 --> 00:28:29,120
Speaker 4: he's going to appoint justices if he gets the opportunity

479
00:28:29,280 --> 00:28:32,119
Speaker 4: to overturn Row because that was a campaign promise, But

480
00:28:32,400 --> 00:28:35,000
Speaker 4: I don't think President Trump really cared about that. What

481
00:28:35,040 --> 00:28:38,120
Speaker 4: I wrote was he wants to end the regulatory state,

482
00:28:38,600 --> 00:28:42,000
Speaker 4: the administrative state, meaning most of the laws that govern

483
00:28:42,160 --> 00:28:49,160
Speaker 4: American private conduct and companies, environmental regulations, food and drug regulations.

484
00:28:49,240 --> 00:28:51,920
Speaker 4: They all come from the executive branch. Congress passes a

485
00:28:52,000 --> 00:28:55,719
Speaker 4: very broad law saying pollution is bad. President, go fix it.

486
00:28:56,080 --> 00:28:58,520
Speaker 4: Congress passes the law saying we want to have state food.

487
00:28:58,640 --> 00:29:01,720
Speaker 4: Everybody wants state food. Executive branch, you go ahead and

488
00:29:01,720 --> 00:29:05,480
Speaker 4: fix that. Well, Donald Trump's a businessman who doesn't like regulations.

489
00:29:05,720 --> 00:29:09,000
Speaker 4: He appointed three justices who don't like regulations, and they

490
00:29:09,000 --> 00:29:11,640
Speaker 4: are doing everything they can to make it harder for

491
00:29:11,760 --> 00:29:16,320
Speaker 4: the executive branch to pass regulations such as environmental and

492
00:29:16,360 --> 00:29:19,560
Speaker 4: food and drug laws. And it's very hard for Congress

493
00:29:19,560 --> 00:29:22,120
Speaker 4: to do it because they don't want to politically take

494
00:29:22,160 --> 00:29:24,920
Speaker 4: the hit. So it's not a surprise that this Supreme

495
00:29:24,960 --> 00:29:28,000
Speaker 4: Court is trying to really go back to a nineteen

496
00:29:28,200 --> 00:29:33,840
Speaker 4: thirty's pre New Deal understanding of federal power over the

497
00:29:33,920 --> 00:29:37,040
Speaker 4: economy because these are people who believe, you know, in

498
00:29:37,080 --> 00:29:42,040
Speaker 4: a totally free marketplace, not burdened by government regulation. And

499
00:29:42,080 --> 00:29:44,560
Speaker 4: of course not just in the court, but this is

500
00:29:44,760 --> 00:29:48,320
Speaker 4: filtering down all through the Trump administration. But the justices

501
00:29:48,680 --> 00:29:51,840
Speaker 4: share that political goal, and that's what we're seeing.

502
00:29:52,320 --> 00:29:55,560
Speaker 2: Roberts is the Chief Justice, but his vote is just

503
00:29:56,040 --> 00:29:59,680
Speaker 2: one of nine votes, So how much power does he.

504
00:29:59,680 --> 00:30:04,719
Speaker 4: We So, a very famous lower court judge, maybe the

505
00:30:04,760 --> 00:30:08,000
Speaker 4: most famous lower court judge of our lifetimes, Judge Richard Posner,

506
00:30:08,640 --> 00:30:11,120
Speaker 4: used to say that the Chief Justice really has no

507
00:30:11,240 --> 00:30:14,200
Speaker 4: power except, you know, to decide who writes the opinion

508
00:30:14,480 --> 00:30:17,840
Speaker 4: when he's in the majority, and maybe some administrative rules.

509
00:30:18,280 --> 00:30:21,920
Speaker 4: So I have a theory about Chief Justice Roberts' vote

510
00:30:22,080 --> 00:30:25,760
Speaker 4: in the Obamacare case, which is going to sound crazy

511
00:30:25,800 --> 00:30:28,280
Speaker 4: to you and your listeners, which is that from two

512
00:30:28,360 --> 00:30:32,160
Speaker 4: thousand and five, when Justice Roberts became the chief to

513
00:30:32,240 --> 00:30:35,480
Speaker 4: twenty twelve, he had no power at all because Justice

514
00:30:35,560 --> 00:30:39,280
Speaker 4: Kennedy held all the power. In that first term, Justice

515
00:30:39,360 --> 00:30:41,479
Speaker 4: Kennedy was in the majority of one hundred percent of

516
00:30:41,480 --> 00:30:44,280
Speaker 4: five vortises, and for the next seven years the Court

517
00:30:44,360 --> 00:30:47,800
Speaker 4: went the way Justice Kennedy went. If you check the

518
00:30:47,920 --> 00:30:51,440
Speaker 4: reporting in May of twenty twelve April of twenty twelve,

519
00:30:51,720 --> 00:30:55,400
Speaker 4: before the Obamacare decision came out, you will see reporters saying,

520
00:30:56,040 --> 00:30:59,080
Speaker 4: how Justice Kennedy goes, the Court will go. Supreme Court

521
00:30:59,160 --> 00:31:01,840
Speaker 4: justice is a human being. They are people like us.

522
00:31:01,880 --> 00:31:03,680
Speaker 4: Now they have better jobs than most of us, but

523
00:31:03,720 --> 00:31:07,000
Speaker 4: they aren't like us. And you know, Chief Justice Roberts,

524
00:31:07,000 --> 00:31:09,480
Speaker 4: I think, always wanted to be on the Supreme Court

525
00:31:09,680 --> 00:31:11,760
Speaker 4: and always wanted to be Chief Justice. It was the

526
00:31:11,760 --> 00:31:13,920
Speaker 4: fulfillment of his I'm not saying he thought he would

527
00:31:13,920 --> 00:31:15,680
Speaker 4: ever get that, but you can't go any higher in

528
00:31:15,760 --> 00:31:18,000
Speaker 4: the law than he went. And he had no power

529
00:31:18,520 --> 00:31:22,520
Speaker 4: because Justice Kennedy had all the power. I think psychologically

530
00:31:22,560 --> 00:31:26,040
Speaker 4: that was a factor in his decision in twenty twelve.

531
00:31:26,360 --> 00:31:30,440
Speaker 4: So the story after twenty twelve became oh, Justice Roberts

532
00:31:30,480 --> 00:31:33,800
Speaker 4: is a swing vote also wasn't really true. Today he

533
00:31:33,880 --> 00:31:36,920
Speaker 4: has very very little power. He has to get either

534
00:31:37,080 --> 00:31:40,600
Speaker 4: Justice Barrett or Justice Cavanaugh or Justice Gorsich to agree

535
00:31:40,640 --> 00:31:43,280
Speaker 4: with him when he doesn't want to rule in a

536
00:31:43,320 --> 00:31:46,360
Speaker 4: conservative fashion because he's never getting the Leado and Thomas

537
00:31:46,400 --> 00:31:49,040
Speaker 4: to rule with him. So I would say he has

538
00:31:49,120 --> 00:31:53,440
Speaker 4: no more power than Corsic, Kavanaugh, and Barrett. And I'm

539
00:31:53,480 --> 00:31:55,640
Speaker 4: not even sure he's more power than Justice Barrett with

540
00:31:55,800 --> 00:31:58,480
Speaker 4: the exception, and it's a big deal when he's in

541
00:31:58,560 --> 00:32:01,520
Speaker 4: the majority he gets to a in the opinion, but

542
00:32:01,560 --> 00:32:05,080
Speaker 4: other than that, his vote counts the same. And frankly,

543
00:32:05,360 --> 00:32:08,520
Speaker 4: I think he was a little bit scarred in the

544
00:32:08,560 --> 00:32:11,640
Speaker 4: first seven years on the bench when his vote counted

545
00:32:11,920 --> 00:32:14,160
Speaker 4: much less than Justice Kennedy's vote.

546
00:32:14,800 --> 00:32:17,920
Speaker 2: So how do you think he ranks as far as

547
00:32:18,040 --> 00:32:20,400
Speaker 2: chief justices who've led the Court?

548
00:32:21,240 --> 00:32:24,120
Speaker 4: Well, I think if our country gets back to some

549
00:32:24,280 --> 00:32:27,440
Speaker 4: sense of normalcy eventually, I don't think we're living in

550
00:32:27,480 --> 00:32:29,400
Speaker 4: normal times for better or for works. You know, I'm

551
00:32:29,400 --> 00:32:31,480
Speaker 4: not going to be partizant about that, but we're living

552
00:32:31,520 --> 00:32:34,360
Speaker 4: through times that are changing very quickly. But assuming we

553
00:32:34,400 --> 00:32:37,400
Speaker 4: get back to some degree of stability in America, my

554
00:32:37,600 --> 00:32:39,600
Speaker 4: guess is he's going to go down as one of

555
00:32:39,600 --> 00:32:42,520
Speaker 4: the worst Chief Justices. And I say this for the

556
00:32:42,560 --> 00:32:47,880
Speaker 4: following reason. History has shown that when the Supreme Court

557
00:32:48,000 --> 00:32:52,400
Speaker 4: lurches far to the left or to the right, eventually

558
00:32:52,440 --> 00:32:55,320
Speaker 4: the political system goes the other direction. So when the

559
00:32:55,360 --> 00:32:58,000
Speaker 4: war in court went too far to the left, and

560
00:32:58,040 --> 00:33:00,800
Speaker 4: I'm a liberal progressive who will say I think the

561
00:33:00,840 --> 00:33:03,160
Speaker 4: war and Court went too far to the left, then

562
00:33:03,280 --> 00:33:06,400
Speaker 4: Richard Nixon runs on a law and order campaign, run

563
00:33:06,400 --> 00:33:08,960
Speaker 4: a Reagan runs on Roe versus Wade, you know, and

564
00:33:09,040 --> 00:33:11,520
Speaker 4: Republicans hold power for most of that time period in

565
00:33:11,560 --> 00:33:15,400
Speaker 4: the political sphere. This Supreme Court, I think, and I

566
00:33:15,440 --> 00:33:19,400
Speaker 4: think political scientists think is far to the right of

567
00:33:19,440 --> 00:33:23,120
Speaker 4: the median Republican voter, leaving a side of the median

568
00:33:23,440 --> 00:33:26,800
Speaker 4: Democrat voter. So my guess is eventually there will be

569
00:33:26,960 --> 00:33:30,560
Speaker 4: a cycle where the political system lurches in the other direction,

570
00:33:31,160 --> 00:33:34,840
Speaker 4: and then we will see just how conservative his court

571
00:33:35,000 --> 00:33:39,720
Speaker 4: has been. It has been very, very conservative, and there

572
00:33:39,720 --> 00:33:44,280
Speaker 4: are even conservatives today, scholars, even from federalist society folks,

573
00:33:44,720 --> 00:33:49,040
Speaker 4: who are saying things like this, this respect for precedent

574
00:33:50,200 --> 00:33:53,600
Speaker 4: is not a conservative value. Right Conservatives like the status quo.

575
00:33:54,040 --> 00:33:57,280
Speaker 4: Progressives want to change the status quote. The Roberts Court

576
00:33:58,000 --> 00:34:01,960
Speaker 4: has been reversing important pre at I think a rate

577
00:34:02,160 --> 00:34:05,480
Speaker 4: that's probably unheard of in American history. I'm not saying

578
00:34:05,520 --> 00:34:09,400
Speaker 4: they're reversing more cases, but that doesn't matter, because the

579
00:34:09,520 --> 00:34:16,280
Speaker 4: importance is are the reversing important cases? Guns, abortion, affirmative action,

580
00:34:16,920 --> 00:34:22,080
Speaker 4: separation of church and state, separation of powers, and even federalism,

581
00:34:22,239 --> 00:34:25,800
Speaker 4: which traditionally has been a very conservative value. Those areas

582
00:34:25,840 --> 00:34:31,320
Speaker 4: of the law have been dramatically reshaped in two short decades.

583
00:34:31,719 --> 00:34:35,400
Speaker 4: There's no definition of conservative that I know that suggests

584
00:34:35,440 --> 00:34:36,920
Speaker 4: that judges should be the ones doing that.

585
00:34:37,200 --> 00:34:38,880
Speaker 2: Thanks so much for joining me on the show.

586
00:34:39,080 --> 00:34:39,279
Speaker 3: Eric.

587
00:34:39,520 --> 00:34:42,480
Speaker 2: That's Eric Siegel, a professor of law at the Georgia

588
00:34:42,520 --> 00:34:45,400
Speaker 2: State University. And that's it for this edition of the

589
00:34:45,440 --> 00:34:48,400
Speaker 2: Bloomberg Law Show. Remember you can always get the latest

590
00:34:48,440 --> 00:34:51,560
Speaker 2: legal news on our Bloomberg Law Podcast. You can find

591
00:34:51,560 --> 00:34:56,160
Speaker 2: them on Apple Podcasts, Spotify, and at www dot bloomberg

592
00:34:56,200 --> 00:35:00,120
Speaker 2: dot com, slash podcast, Slash Law. And remember to to

593
00:35:00,160 --> 00:35:03,520
Speaker 2: The Bloomberg Law Show every weeknight at ten pm Wall

594
00:35:03,560 --> 00:35:07,440
Speaker 2: Street Time. I'm June Grosso and you're listening to Bloomberg