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

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Speaker 2: President elect Donald Trump is scheduled to be sentenced this

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Speaker 2: Fronde for his conviction on criminal charges in the New

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Speaker 2: York hush money case. A jury convicted him back in

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Speaker 2: May of thirty four felony counts in a scheme to

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Speaker 2: hide hush money payments to a porn star during his

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Speaker 2: twenty sixteen campaign, so clearly before he became president. The

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Speaker 2: conviction made Trump the first US president, whether sitting or former,

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Speaker 2: to be convicted of a crime, and now he's basically

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Speaker 2: trying to erase the conviction so that he doesn't become

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Speaker 2: the first felon to be sworn in as the president

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Speaker 2: of the United States. Both the New York trial judge

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Speaker 2: and an appellate judge have refused to put off his

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Speaker 2: sentencing based on his arguments that a president elect is

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Speaker 2: entitled to the same sweeping immunity that a sitting gets.

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Speaker 2: So now Trump is going to the Supreme Court, which

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Speaker 2: has been friendly to his claims of presidential immunity. He's

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Speaker 2: asking the justices to intervene in the state hush money

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Speaker 2: criminal case to prevent his sentencing from going forward quote,

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Speaker 2: the Court should enter an immediate stay of further proceedings

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Speaker 2: in the New York Trial Court to prevent grave injustice

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Speaker 2: and harm to the institution of the Presidency and the

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Speaker 2: operations of the federal government. Joining me is Bloomberg Legal

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Speaker 2: reporter Eric Larson, who's been covering all the proceedings in

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Speaker 2: New York and there have been many Eric tell us

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Speaker 2: about Trump's latest filing with the Supreme Court.

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Speaker 3: So late last night, his lawyers filed a petition with

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Speaker 3: the Supreme Court asking for a stay of the sentencing

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Speaker 3: hearing that is scheduled for Friday morning here in Manhattan.

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Speaker 3: So this was sort of a fast track, sort of

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Speaker 3: unexpected that he was going to go this quickly to

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Speaker 3: the Supreme Court. But earlier a New York appellate judge

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Speaker 3: in Manhattan had agreed with the trial judge and that

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Speaker 3: the sense things should go forward. So with that ruling,

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Speaker 3: he went ahead and went straight to the Supreme Court

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Speaker 3: to request a stay while he continues to press his

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Speaker 3: appeal in New York State Court.

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Speaker 2: So what are the grounds for him asking the Supreme

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Speaker 2: Court to step in.

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Speaker 3: So they're the same arguments that he made with the

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Speaker 3: New York Appellate Court, and with the judge who oversaw

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Speaker 3: the hush money trial, it is all about his interpretation

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Speaker 3: of presidential immunity. Of course, that the broad legal doctrine

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Speaker 3: that was expanded by the Supreme Court last year or

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Speaker 3: in a different criminal case against Trump, where they held

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Speaker 3: for the first time that former presidents have brought immunity

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Speaker 3: from criminal charges related to their official conduct in office.

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Speaker 3: So even though this hush money case relates to his

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Speaker 3: actions before he was elected in twenty sixteen, and even

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Speaker 3: though he was tried convicted last year while he was

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Speaker 3: just a private citizen, I mean, before he was even

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Speaker 3: elected in the November election, notwithstanding all that, he argues

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Speaker 3: that he's protected from this guilty verdict by the concept

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Speaker 3: of presidential immunity. He argues that having this verdict the

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Speaker 3: hanging over him would undermine his authorities and his credibility

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Speaker 3: with world leaders and things like this, all of the

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Speaker 3: reasons that the Supreme Court has previously granted this kind

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Speaker 3: of immunity to presidents to begin with, to make sure

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Speaker 3: that the office of the presidency is powerful and protected

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Speaker 3: and whatnot. Clearly that is not how the Manhattan District

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Speaker 3: Attorney sees it, and that's also not how the judge

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Speaker 3: thought or the appellate judge who ruled against him. Will

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Speaker 3: see what the Supreme Court thinks. But for now, he's

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Speaker 3: saying that even though he's just president elect, this immunity

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Speaker 3: should be extended to him.

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Speaker 2: The judge in this case has already said that he's

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Speaker 2: not going to sentence him to time or probation or anything.

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Speaker 2: It's sort of like a formality, but it will put

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Speaker 2: on the record that he's been convicted of felonies.

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Speaker 3: It's an unconditional discharge, is what Judge Murchon called it.

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Speaker 3: It means that, you know, because of these unusual circumstances

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Speaker 3: with a defendant being convicted but then winning a presidential

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Speaker 3: election before being sentenced, the judge went ahead and said, look,

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Speaker 3: I'm not actually going to sentence you to any time

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Speaker 3: behind bars, or probation or a fine or anything. He's

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Speaker 3: getting an unconditional discharge, which means zero penalty other than

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Speaker 3: having the conviction remain intact. But it's that that Trump

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Speaker 3: wants to stop from happening. He doesn't even want that

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Speaker 3: hanging over him, you know. His lawyer also made the

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Speaker 3: argument that the appellate judge said was pretty weak. But

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Speaker 3: his lawyer did argue that there's always the chance that

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Speaker 3: Judge Mrchan could backtrack and sentence him to time in prison,

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Speaker 3: even though he said he wouldn't. But the judge didn't

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Speaker 3: really buy that argument. You know, if this this thing

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Speaker 3: goes ahead on Friday, clearly Trump is not at any.

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Speaker 2: Risk of going to jail, and he doesn't have to

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Speaker 2: even be at the sentencing, right, that's right.

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Speaker 3: Jes Mareschawan told him that he had the option to

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Speaker 3: appear virtually according to court papers, Trump is already indicated

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Speaker 3: that that is what he would do.

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Speaker 1: What's unusual here.

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Speaker 2: One unusual thing is that normally you have to wait

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Speaker 2: until a case is litigated in the state courts before

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Speaker 2: you go to the Supreme Court.

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Speaker 1: And in this case, he's still appealing to the Court.

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Speaker 3: Of Appeals, right, right, He does plan to continue to

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Speaker 3: press the appeal through the New York state court system.

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Speaker 3: He did say in his filing with the Supreme Court

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Speaker 3: last night that he was filing a similar petition for

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Speaker 3: a state simultaneously with the New York Court of Appeals,

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Speaker 3: the highest court in New York. We couldn't verify that

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Speaker 3: that had been filed. In fact, the court that it

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Speaker 3: hadn't been, but it seems that Trump is at least

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Speaker 3: planning to file something there to sort of connect the

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Speaker 3: dots to the Supreme Court, as it were. But clearly

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Speaker 3: time is of the essence and Trump's view, that's what

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Speaker 3: they've said all along here, So that might be one

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Speaker 3: of the reasons why they just trumped straight to the

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Speaker 3: Supreme Court. Of course, Trump is due to be inaugurated

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Speaker 3: just ten days after this sentencing hearing exept for Friday.

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Speaker 2: Right now, since the Second Circuit is in the purview

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Speaker 2: of Justice Sonya Soto Mayor, she's asked the Manhattan District

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Speaker 2: attorney for papers.

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Speaker 3: That's right. She directed Alvin Bragg, the district's attorney, to

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Speaker 3: respond to Trump's filing by tomorrow morning. So we would expect,

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Speaker 3: or we hope, that we'll get some ruling from the

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Speaker 3: Supreme Court by tomorrow night. Given that the sentencing hearing

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Speaker 3: is happening Friday morning, it would.

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Speaker 2: Take five Supreme Court justices to grant to stay. In

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Speaker 2: the case, of course, there were six justices who voted

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Speaker 2: to give him that broad presidential immunity from criminal prosecution.

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Speaker 2: And another point is that it's Trump that's been asking

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Speaker 2: for these delays in sentencing.

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Speaker 1: It's been the.

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Speaker 2: Strategy of delay, delayed, delay, and now that he's been

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Speaker 2: elected president, he doesn't want to just delay the sentencing.

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Speaker 1: He wants to eliminate the sentencing.

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Speaker 3: That's right. That's one of the points that the appellate

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Speaker 3: judge made at the hearing yesterday. She said that, you know,

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Speaker 3: this timing was so inconvenient for Trump that he should

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Speaker 3: have gone ahead and went through with the sentencing earlier.

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Speaker 3: It's been delayed at least a couple of times, and

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Speaker 3: the most recent delay was as a result of the election,

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Speaker 3: but it could have happened months before the election, so

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Speaker 3: that that is a strong argument in favor of the prosecution.

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Speaker 3: But you know, Trump has had good luck with the

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Speaker 3: Supreme Court in previous arguments around presidential immunity, so it's

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Speaker 3: impossible to know how much weight they'll give that particular

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Speaker 3: argument exactly.

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Speaker 2: And he has been using that controversial ruling on presidential

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Speaker 2: immunity to try to get this New York hush money

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Speaker 2: conviction thrown out, but the judge has denied his motions twice.

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Speaker 3: So there's really two separate orders from Judge Marschan that

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Speaker 3: Trump is appealing that both relates to presidential immunity. The

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Speaker 3: first decision was from December, when Judge Mrshan rejected Trump's

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Speaker 3: argument that presidential immunity ruling from the Supreme Court undermines

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Speaker 3: the verdict. He claims that the trial itself had been

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Speaker 3: painted by witness testimony and other evidence that would not

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Speaker 3: have been allowed at trial if that Supreme Court standard

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Speaker 3: on presidential meunity had been in place, which it wasn't.

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Speaker 3: It wasn't handed down until a few months later. So

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Speaker 3: this is attorney argues that no, whatever evidence might have

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Speaker 3: been disallowed under that standard wouldn't have effected the outcome

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Speaker 3: of the verdict, that the remaining evidence was so strong,

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Speaker 3: And then indeed that's what the judge agreed and ruled

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Speaker 3: against Trump on that. The other argument was the sort

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Speaker 3: of broader argument that the judge ruled earlier this month,

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Speaker 3: you know, rejecting Trump's argument that the broad presidential immunity

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Speaker 3: extends to a president elect. That was the bigger argument, Trump,

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Speaker 3: that I won the election. Therefore, this whole criminal case

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Speaker 3: should be thrown out, including the jury's verdict.

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Speaker 1: This is the only case that went to trial.

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Speaker 2: And the only prosecution really that that has been successful

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Speaker 2: against Trump.

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Speaker 1: He's he's managed to.

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Speaker 2: Get rid of the federal cases and the Atlantic case

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Speaker 2: is also in doubt.

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Speaker 3: Right, So the Atlanta case is still hanging out there,

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Speaker 3: although it's definitely in limbo. It's suffering its own problem.

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Speaker 3: But the two big federal prosecutions of Trump, they were

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Speaker 3: both dropped by the Justice Department after Trump won the election,

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Speaker 3: simply because of the long standing policy of not prosecuting

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Speaker 3: a sitting president. They knew that the cases wouldn't be

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Speaker 3: able to proceed trial while Trump was in office, and

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Speaker 3: therefore they dropped those charges. But even before he won,

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Speaker 3: that case over the twenty twenty election was significantly narrowed

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Speaker 3: during that Supreme Court decision that we discussed, where they

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Speaker 3: gave him broad immunity from criminal charges over anything related

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Speaker 3: to his official conduct. But yeah, the presidential immunity doctrine

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Speaker 3: is very broad, and that's why those two criminal cases

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Speaker 3: were dropped by the Justice Department. That's also while he'll

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Speaker 3: argue to have that Georgia State case, which is also

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Speaker 3: over the twenty twenty election, will argue to have that

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Speaker 3: one tossed out as well. But like they said, that

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Speaker 3: case is already suffering from it from his own problems

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Speaker 3: because the prosecutor was thrown out of the case by

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Speaker 3: an appealed court over an affair she was having with

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Speaker 3: an investigator. So totally separate drama.

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Speaker 1: From a purely legal perspective.

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Speaker 2: It's going to be fascinating to see what the Supreme

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Speaker 2: Court does here.

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Speaker 3: No one really knows what's going to happen, but it

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Speaker 3: could be an interesting test to see how far the

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Speaker 3: Supreme Court is going to go to help Trump out

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Speaker 3: even before he takes office.

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Speaker 2: Well, at least this should be resolved quickly one way

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Speaker 2: or the other. Thanks so much, Eric, That's Bloomberg Legal

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Speaker 2: reporter Eric Larson coming up next on the Bloomberg Law Show.

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Speaker 2: Net neutrality appears to be dead after a Court of

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Speaker 2: Appeals ruling deals a blow to the FCC. I'm June

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Speaker 2: Grosso and you're listening to Bloomberg. After decades of fighting,

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Speaker 2: it appears that the battle over net neutrality rules is over.

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Speaker 2: The US Court of Appeals for the Sixth Circuit has

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Speaker 2: acts the Federal Communications Commissions net neutrality rules, saying the

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Speaker 2: agency didn't have the authority to issue the rules. The

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Speaker 2: decision demonstrates the impact of the Supreme Court's ruling in

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Speaker 2: June doing away with the Chevron doctrine and holding that

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Speaker 2: judges shouldn't yield to agency's readings of unclear laws. Joining

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Speaker 2: me is Christopher You, a professor at the University of

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Speaker 2: Pennsylvania's Carrie Law School who's written extensively on administrative and

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Speaker 2: telecommunications law. Will you start by explaining just what net

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Speaker 2: neutrality is.

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Speaker 4: Net neutrality is a political fight that's been going on

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Speaker 4: since the early two thousands. On the one side are

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Speaker 4: people who believe that ISPs provide Internet service to homes

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Speaker 4: and businesses shouldn't exercise any editorial control over the content

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Speaker 4: that they provide access to. Opponents of network neutrality argue

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Speaker 4: that in the modern Internet, it has become important for

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Speaker 4: ISPs to filter certain content, sometimes for security reasons, sometimes

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Speaker 4: to avoid spam and unwanted content, sometimes to enforce copyright laws,

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Speaker 4: but it can also be to provide a more refined

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Speaker 4: and tailored service to customers who want increasingly more diverse

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Speaker 4: offerings from the Internet. So, for example, online gamers are

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Speaker 4: extremely sensitive to delay, and they may want content that's

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Speaker 4: prioritized over other content. Another example is if you're on

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Speaker 4: your cell phone and you're taking a voice call. If

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Speaker 4: you're in a low bandwidth spot, you might want the

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Speaker 4: system to hold your email and continue to give you

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Speaker 4: your voice call to make sure that you get good

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Speaker 4: quality voice communications, and the fact that you have to

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Speaker 4: wait for your email is not a big deal.

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Speaker 2: So the Sixth Circuit rule that the FCC doesn't have

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Speaker 2: the authority to issue the net neutrality rules?

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Speaker 1: What did they base their determination on?

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Speaker 4: The Sixth Circuit basis determination on a Supreme Court decision

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Speaker 4: that change the rules that courts will use to determine

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Speaker 4: the legality of an agency's interpretation of a statute. Before

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Speaker 4: this decision Loperbrite, which the Supreme Court rendered in June

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Speaker 4: twenty twenty four, courts tended to defer to the agency's

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Speaker 4: interpretation of the statute. That is, as long as it

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Speaker 4: was reasonable within the broad range of possibility, courts would

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Speaker 4: accept the agency interpretation. And on the basis of this principle,

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Speaker 4: we've seen agencies flip flop and their interpretations of the

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Speaker 4: legality of net neutrality rules, saying that initially that they

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Speaker 4: should adopt a more deregulatory approach starting in two thousand

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Speaker 4: and two, then changing in twenty ten to a more

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Speaker 4: regulatory approach, then back to a more deregulatory approach in

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Speaker 4: twenty eighteen, and back to a more regulatory approach in

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Speaker 4: twenty twenty four. And what the Supreme Court held is

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Speaker 4: that this sort of flip flopping is inconsistent with the

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Speaker 4: rule of law, inconsistent with the role of courts and agencies,

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Speaker 4: and is actually hurting consumers and people who have to

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Speaker 4: comply with law by creating a great deal of uncertainty.

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Speaker 4: And after June twenty twenty four, instead of deferring to

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Speaker 4: agency interpretations, courts are supposed to exercise their own judgment

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Speaker 4: as to the best reading of the statute and apply that.

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Speaker 4: And that's what the Sixth Circuit did.

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Speaker 1: Is it the fault of.

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Speaker 2: The FCC for flip flopping on its.

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Speaker 1: Readings of the statute?

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Speaker 2: The Court said, applying low or bright means we can

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Speaker 2: and the FCC's vacillations.

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Speaker 4: The fact that the FCC was vacillating on the right

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Speaker 4: interpretation of the statute when deciding whether to apply that

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Speaker 4: neutrality isn't really the fault of the FCC. In fact,

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Speaker 4: that complied with the law that existed at the time.

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Speaker 4: The decision that called for courts to defer to agency

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Speaker 4: decisions that's called Chevron and has been in place since

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Speaker 4: nineteen eighty six explicitly recognized that agencies are likely to

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Speaker 4: change their minds and in fact endorse that idea. So

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Speaker 4: what the prior regime envisioned is that vrocations of statutes

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Speaker 4: were policy decisions, and just like say, for example, foreign

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Speaker 4: policy changes with the advent of a new administration, we

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Speaker 4: would expect this degree of policy to change as well.

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Speaker 4: The problem the Supreme Court had with that is statutes

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Speaker 4: aren't policy. Statutes are law, and the change of administration

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Speaker 4: does not involve the change in the statute or change

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Speaker 4: in the law. It's a change in the interpretation of

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Speaker 4: the law. And that opens the door to the claim

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Speaker 4: that interpreting law is policy, not lawmaking. And that's where

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Speaker 4: the Supreme Court said, we don't do that anymore. If

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Speaker 4: you want to change the statute, you need to actually

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Speaker 4: amend it. It's not open for reinterpretation just because someone

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Speaker 4: else occupies the White House.

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Speaker 2: Lober Bright said that prior decisions that relied on that

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Speaker 2: doctor the Chevron doctrine still have binding power, starry decisives.

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Speaker 2: How did the Sixth Circuit get around that?

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Speaker 4: The issue you're raising has been around owned with us

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Speaker 4: since certainly the days of the war in court. I

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Speaker 4: mean to give you a simple example. Gideon versus Wainwright

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Speaker 4: announced that all criminal defendants must be provided with defense

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Speaker 4: counsel provided by the government. And you know we had

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Speaker 4: never as a country it provided that to indigence. And

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Speaker 4: it raised a question, so does that mean every single

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Speaker 4: conviction going back to the beginning of the Republic was

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Speaker 4: inherently suspect? And what the Supreme Court has developed is

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Speaker 4: a doctrine which is, we will apply our best understanding

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Speaker 4: of the law to all cases that are ongoing, but

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Speaker 4: to cases that are final. We're not going to overturn

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Speaker 4: convictions going back hundreds of years. So the real question is,

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Speaker 4: in a particular matter, if the courts have resolved the issue,

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Speaker 4: the Supreme Court said, we will not disturb that decision,

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Speaker 4: but for new matters involving cases that are still ongoing

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Speaker 4: or cases that are newly submitted, they will apply a

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Speaker 4: new set of principles. Here, every prior decision about net

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Speaker 4: neutrality regarded a different net neutrality order either the declaratory

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Speaker 4: judgment in two thousand and two or orders in twenty ten,

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Speaker 4: twenty fifteen, twenty eighteen, and all of those have been

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Speaker 4: resolved under law, and all of those decisions are now final.

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Speaker 4: The decision in front of the Sixth Circuit involved a

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Speaker 4: order that came out of twenty twenty four that had

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Speaker 4: never been resolved or addressed by a court, and as

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Speaker 4: a result, it was still a live issue, and under

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Speaker 4: the Supreme Court's guidance, the Sixth Circuit applied the current

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Speaker 4: rules that have been placed ince June twenty twenty four

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Speaker 4: to address the legality of the twenty twenty four action.

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Speaker 4: So all they're saying really is that we're not going

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Speaker 4: to upset the decisions regarding the twenty ten, twenty fifteen,

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Speaker 4: twenty eighteen orders. We are going to look at the

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Speaker 4: twenty twenty four order with new eyes under the Supreme

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Speaker 4: Court's current rules for how courts should evaluate agency interpretations

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Speaker 4: of the statue.

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Speaker 2: Does this decision end the legal battle over net neutrality rules?

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Speaker 2: Brendan Carr, who Trump has named as an incoming FCC chair,

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Speaker 2: has been a strong critic of net neutrality.

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Speaker 4: So is this the end the Sixth Circuit decision most

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Speaker 4: likely ends the controversy over the legality of net neutrality.

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Speaker 4: The parties who support the twenty twenty four order that

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Speaker 4: the Sixth Circuit overturned could still appeal the issue to

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Speaker 4: the Supreme Court, and so there remain some possibility that

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Speaker 4: there will be further review of the Sixth Circuit decision.

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Speaker 4: But honestly, having clorked on the court myself and having

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Speaker 4: some experience in how they operate, my guess is that

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Speaker 4: this is not likely to be the kind of case

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Speaker 4: that they take. It doesn't bear the kinds of conflicts

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Speaker 4: between different courts and different parts of the country that

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Speaker 4: has been the hallmark of the types of cases the

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Speaker 4: Supreme Court takes.

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Speaker 1: Theseis as far as lowbribright.

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Speaker 2: In general, are the courts around the country interpreting the

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Speaker 2: decision there differently, are their conflicting decisions out there?

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Speaker 4: There are no conflicting decisions on the net neutrality order,

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Speaker 4: And in fact, the parties who litigated that case before

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Speaker 4: the Sixth Circuit are now bound by that decision and

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Speaker 4: are really obligated to follow it, so they're not really

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Speaker 4: in a position to bring a new challenge to the

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Speaker 4: twenty twenty four order. From a broader perspective, the Sixth

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Speaker 4: Circuit has taken the approach that gives it a great

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Speaker 4: deal of latitude to deviate from prior judicial decisions that

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Speaker 4: presented the same issue but arose from a different agency order.

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Speaker 4: And that actually opens the door to a fairly broad

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Speaker 4: scope of action for courts to revisit issues that had

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Speaker 4: been adjusted by prior courts and hadn't been resolved now.

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Speaker 4: I don't think that's improper for the Sixth Circuit, and

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Speaker 4: in fact, the Supreme Court, by changing the interpretive rules,

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Speaker 4: expects there to be different outcomes. And in fact, if

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Speaker 4: there was too little latitude for courts to apply their

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Speaker 4: own judgment as to the best reading of the statute

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Speaker 4: and instead to continue to defer to what agencies thought

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Speaker 4: were the best reading, that would actually create a very

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Speaker 4: little room for the kinds of changes in law that

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Speaker 4: the Supreme Court has called for. And it's during twenty

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Speaker 4: twenty four decision. I think the Sixth Circuit's opinion, while

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Speaker 4: one of the first to address this issue, is likely

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Speaker 4: to be borne out by further decisions in the future.

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Speaker 1: And do you.

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Speaker 2: Think that we're going to see more federal regulations at

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Speaker 2: the FCC and other agencies followed out or you know,

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Speaker 2: disregarded agencies.

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Speaker 4: Like the FCC are certainly facing a more challenging environment

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Speaker 4: in which courts are likely to be more skeptical of

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Speaker 4: the actions they take. The previous regime gave them deference

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Speaker 4: and so therefore they had a pretty wide latitude to

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Speaker 4: follow the policies that they preferred. Now they're going to

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Speaker 4: have to justify their actions a bit more specifically, and

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Speaker 4: that's going to represent a clear challenge to them.

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Speaker 2: There have been fights over net neutrality for decades. Does

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Speaker 2: it seem odd that now this one court is going

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Speaker 2: to put the whole issue to rest.

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Speaker 4: Courts have to decide close cases all the time, and

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Speaker 4: even if it's a very very narrow issue, they generally

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Speaker 4: don't shy away from resolving those issues, and I think

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Speaker 4: that sort of characterizes what's going on with net neutrality.

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Speaker 4: I think there are good arguments on both sides. I

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Speaker 4: personally agree with the way the Six Circuit resolve the issue,

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Speaker 4: but I understand why other people feel differently. The bigger

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Speaker 4: issue that the Supreme Court addressed is to eliminate the

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Speaker 4: possibility or in this case, the net neutrality. The reality

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Speaker 4: that we saw what was the laws flip flop every

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Speaker 4: time the White House changed party. And in fact, many

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Speaker 4: people would say, if there's a close issue, we're better

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Speaker 4: off having courts resolving it once on the best terms

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Speaker 4: it can and then letting that interpretation stand until Congress

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Speaker 4: sees fit to amend it or not. The world in

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Speaker 4: which we're in where we saw policy flip flop multiple times,

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Speaker 4: is not one that's conducive to creating great Internet connectivity

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Speaker 4: or to creating stable expectations for consumers and Internet users

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Speaker 4: to understand what they're getting. And so, in fact, I

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Speaker 4: think that the fact that there are tough cases is

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Speaker 4: not a reason for courts to shy away from making

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Speaker 4: tough decisions. It doesn't justify allowing judicial decisions to change

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Speaker 4: back and forth with the political wins.

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Speaker 2: Thanks so much for joining me on the show. That's

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Speaker 2: Professor Christopher You of the University of Pennsylvania carry Law School.

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Speaker 2: Coming up next, a new Jersey decision turns the tables

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Speaker 2: on the move to kill DEI programs.

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Speaker 1: This is Bloomberg.

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Speaker 2: The First Amendment right of free association has led to

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Speaker 2: court rulings allowing a gay softball league to strike straight

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Speaker 2: guys from teams, lineups, student groups to bar their doors

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Speaker 2: to members who disagree with their mission, and even some

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Speaker 2: religiously affiliated employers to fire workers who support abortion rights,

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Speaker 2: while a new Jersey Appeals Court ruling is turning the

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Speaker 2: tables by saying that the reverse is true as well,

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Speaker 2: and that private organizations can also deliberately include certain people

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Speaker 2: in their groups. It's the first decision of its kind

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Speaker 2: in the country. A counter to the movement to kill diversity,

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Speaker 2: equity and inclusion programs. Joining me is Alex Ebert Bloomberg

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Speaker 2: Law Senior correspondent who's written about this. Tell us about

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Speaker 2: this new Jersey decision that turned the tables on the

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Speaker 2: movement to n DEI programs.

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Speaker 5: So this decision is groundbreaking and that it flips in away.

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Speaker 5: The Supreme Court's ru is that groups can discriminate when

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Speaker 5: they pick their leaders, and the new Jersey Court is saying, well,

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Speaker 5: if you can discriminate when you pick your leaders exclude people,

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Speaker 5: that means you can discriminate to include people as well.

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Speaker 5: If you're going to get to pick the leadership that

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Speaker 5: will guide your group and enforce your values, like let's

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Speaker 5: say the boy Scouts of America can when it excludes

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Speaker 5: certain people, then that means that you can include specific

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Speaker 5: people for specific leadership position that essentially is DEI.

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Speaker 1: And this had to do with a bar association.

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Speaker 5: It did. Yeah, so bar association litigation is popping up

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Speaker 5: all over the country. You have conservative and libertarian groups

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Speaker 5: in particular, bringing cases against DEI work that bar associations

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Speaker 5: are doing. They're going to sue over leadership spots, over

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Speaker 5: programs for particular attorney groups, and basically anything that sort

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Speaker 5: of looks at race, gender orientation, things like that in

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Speaker 5: order to elevate particular jorneyes that have maybe been disadvantaged

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Speaker 5: in the past. That's what happened here. New Jersey for

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Speaker 5: many years has had a program where they reserve at

442
00:26:08,080 --> 00:26:12,360
Speaker 5: large leadership positions on committee is for people that are

443
00:26:12,560 --> 00:26:17,480
Speaker 5: certain disadvantaged groups. So you'll see black lawyer positions reserved.

444
00:26:17,520 --> 00:26:21,520
Speaker 5: You'll see positions reserved for women, for people that are elderly,

445
00:26:21,600 --> 00:26:25,320
Speaker 5: for people with disabilities, for people in the LGBTQ community.

446
00:26:25,760 --> 00:26:28,960
Speaker 5: And this lawsuit was saying, hey, what you're doing is

447
00:26:29,080 --> 00:26:33,159
Speaker 5: violating this really powerful New Jersey loginst discrimination.

448
00:26:33,560 --> 00:26:34,360
Speaker 1: So now you're right.

449
00:26:34,520 --> 00:26:36,720
Speaker 2: It all comes back to one of the first amendments

450
00:26:36,960 --> 00:26:41,720
Speaker 2: extremely undervalued benefits, the right to tell people to get lost,

451
00:26:42,440 --> 00:26:45,400
Speaker 2: tell us about some cases in that arena.

452
00:26:46,000 --> 00:26:50,840
Speaker 5: Yeah, absolutely so. An undervalued part of the First Amendment

453
00:26:51,080 --> 00:26:54,280
Speaker 5: is this power to associate with people that you want

454
00:26:54,320 --> 00:26:57,800
Speaker 5: to right. This boils down to if you're starting a club,

455
00:26:57,920 --> 00:27:00,920
Speaker 5: if you've got a group, you've got the right to association.

456
00:27:01,600 --> 00:27:04,080
Speaker 5: You can't be forced to join up with people that

457
00:27:04,160 --> 00:27:06,760
Speaker 5: you don't want to hang out with. Now, courts have

458
00:27:06,880 --> 00:27:11,000
Speaker 5: interpreted that as saying student groups can bar the doors

459
00:27:11,040 --> 00:27:13,879
Speaker 5: to students that don't agree with their value system, or

460
00:27:14,080 --> 00:27:19,480
Speaker 5: certain religious employers can exclude from job positions people that

461
00:27:20,040 --> 00:27:24,320
Speaker 5: are for abortion rights. Or you can have a court say, hey,

462
00:27:24,400 --> 00:27:26,639
Speaker 5: this case, softball league doesn't have to put into the

463
00:27:26,680 --> 00:27:30,000
Speaker 5: lineup straight players. And it boils down to this First

464
00:27:30,040 --> 00:27:33,639
Speaker 5: Amendment right that if you want to exclude people because

465
00:27:33,640 --> 00:27:35,639
Speaker 5: you want to create a community, you get to do

466
00:27:35,760 --> 00:27:37,359
Speaker 5: that if you're a private organization.

467
00:27:38,119 --> 00:27:41,800
Speaker 2: To what does in perspective, where have we seen suits

468
00:27:41,920 --> 00:27:43,920
Speaker 2: against DEI programs.

469
00:27:44,520 --> 00:27:48,160
Speaker 5: So we've seen lawsuits against DEI pop up across the country.

470
00:27:48,560 --> 00:27:52,000
Speaker 5: We've seen them against the American Bar Association, We've seen

471
00:27:52,040 --> 00:27:54,960
Speaker 5: them against the Wisconsin Bar. We've seen a lot of

472
00:27:55,000 --> 00:27:59,760
Speaker 5: activity around the even places without lawsuits, including Florida, where

473
00:28:00,119 --> 00:28:02,960
Speaker 5: the STAKEHOURT system has basically done a one to eighty

474
00:28:03,400 --> 00:28:07,600
Speaker 5: on being very pro DEI for certain years, and then

475
00:28:07,880 --> 00:28:12,199
Speaker 5: now they're removing THEI entirely, both from the way it

476
00:28:12,200 --> 00:28:14,879
Speaker 5: communicates to its members and from the way it spends

477
00:28:14,880 --> 00:28:18,320
Speaker 5: money and organizes groups. So you've seen this issue pop

478
00:28:18,400 --> 00:28:22,200
Speaker 5: up across the United States, from big states to even

479
00:28:22,240 --> 00:28:25,080
Speaker 5: tiny ones like West Virginia, where there's a new lawsuit

480
00:28:25,160 --> 00:28:30,040
Speaker 5: challenging an at large member of a leadership community for a.

481
00:28:30,040 --> 00:28:33,600
Speaker 2: Lawyer that is black bars from Wisconsin to Florida. Are

482
00:28:33,600 --> 00:28:38,040
Speaker 2: they rolling back diversity programs and also you see corporations

483
00:28:38,120 --> 00:28:42,160
Speaker 2: rolling back diversity programs. Are they doing that because they're

484
00:28:43,040 --> 00:28:46,560
Speaker 2: afraid of a lawsuit or are they doing that because

485
00:28:46,960 --> 00:28:48,040
Speaker 2: the law has changed.

486
00:28:48,960 --> 00:28:50,840
Speaker 5: I think it's a little bit of both. Jude. So

487
00:28:50,880 --> 00:28:52,960
Speaker 5: if we think about it, sometimes they're under the gun

488
00:28:53,000 --> 00:28:56,400
Speaker 5: of a lawsuit to alter programs, and sometimes they'll say

489
00:28:56,440 --> 00:29:00,239
Speaker 5: that their changes of programs won't reduce the ability, you know,

490
00:29:00,280 --> 00:29:03,320
Speaker 5: for groups to access certain benefits. But then there's some

491
00:29:03,400 --> 00:29:06,400
Speaker 5: states like Florida which are proactively doing this. They have

492
00:29:06,440 --> 00:29:09,560
Speaker 5: a more conservative judiciary that the Santus has put in

493
00:29:09,600 --> 00:29:12,120
Speaker 5: place and they're rolling back things and they have been

494
00:29:12,160 --> 00:29:15,400
Speaker 5: for several years even without litigation in their state. So

495
00:29:15,480 --> 00:29:18,240
Speaker 5: it really depends on whether or not the impetus is

496
00:29:18,280 --> 00:29:21,120
Speaker 5: coming from the judiciary and the judges, or if it's

497
00:29:21,160 --> 00:29:25,800
Speaker 5: coming from a conservative or libertarian oriented legal community that

498
00:29:25,920 --> 00:29:28,520
Speaker 5: is set up with DEI and wants to see it gone.

499
00:29:28,720 --> 00:29:32,200
Speaker 2: This case is being appealed to the New Jersey Supreme Court.

500
00:29:32,480 --> 00:29:36,280
Speaker 2: Where does that court stand as far as being conservative

501
00:29:36,360 --> 00:29:36,880
Speaker 2: or liberal.

502
00:29:37,360 --> 00:29:40,560
Speaker 5: So we've done big stories on the New Jersey Supreme

503
00:29:40,600 --> 00:29:42,560
Speaker 5: Court recently, and I've even spoken with you in the

504
00:29:42,600 --> 00:29:46,680
Speaker 5: past on this where the court is extremely tough to gauge.

505
00:29:47,040 --> 00:29:50,840
Speaker 5: They have unwritten rules which require partisan balance for lack

506
00:29:50,880 --> 00:29:53,680
Speaker 5: of a better term on it. So it's unclear. But

507
00:29:53,800 --> 00:29:56,600
Speaker 5: the Bar itself is a very pro DEI and it

508
00:29:56,640 --> 00:29:59,320
Speaker 5: has been running this kind of program with a large

509
00:29:59,320 --> 00:30:03,920
Speaker 5: seats for decades and only recently was their legal challenge

510
00:30:03,960 --> 00:30:06,200
Speaker 5: brought against it, something that's kind of been in place

511
00:30:06,240 --> 00:30:08,800
Speaker 5: for a long time, and the bar has been expanding.

512
00:30:09,120 --> 00:30:12,600
Speaker 5: So we see the appeals court here potentially keying up

513
00:30:12,960 --> 00:30:16,640
Speaker 5: a broader fight before that New Jersey Supreme Court about

514
00:30:16,680 --> 00:30:20,280
Speaker 5: whether or not their state judicial system, which is one

515
00:30:20,320 --> 00:30:23,840
Speaker 5: of the largest by attorney number in the country, will

516
00:30:23,880 --> 00:30:26,680
Speaker 5: allow this sort of minority participation.

517
00:30:26,520 --> 00:30:30,880
Speaker 2: Benefit and explain the difference between private organizations and DEI

518
00:30:31,040 --> 00:30:33,200
Speaker 2: and public organizations.

519
00:30:33,400 --> 00:30:35,760
Speaker 5: Yeah, there's going to be nuanced differences between a lot

520
00:30:35,800 --> 00:30:37,920
Speaker 5: of these, right. The key thing here is that bar

521
00:30:38,000 --> 00:30:42,560
Speaker 5: associations are often private associations. They're the same thing is

522
00:30:42,960 --> 00:30:45,680
Speaker 5: you know, if you have a club that supports your

523
00:30:45,800 --> 00:30:48,800
Speaker 5: local river cleanup, or if you have, you know, a

524
00:30:48,840 --> 00:30:52,240
Speaker 5: big national organization like the NRA. You know, these people

525
00:30:52,240 --> 00:30:55,680
Speaker 5: get to pick who's on their leadership board based on

526
00:30:55,960 --> 00:30:59,840
Speaker 5: the value systems that they hold deer right, so that

527
00:31:00,120 --> 00:31:04,080
Speaker 5: into a value system for the New Jersey State Bar Association,

528
00:31:04,360 --> 00:31:07,640
Speaker 5: which is liberal and has had d programs for a

529
00:31:07,680 --> 00:31:09,680
Speaker 5: long time. It might be different than a bar association

530
00:31:09,760 --> 00:31:13,840
Speaker 5: somewhere else, but that is different from a corporation right

531
00:31:13,880 --> 00:31:18,800
Speaker 5: where you have federal accommodation and employment laws that prohibit

532
00:31:19,200 --> 00:31:23,120
Speaker 5: outright quotas or discrimination in that way, or a government

533
00:31:23,200 --> 00:31:26,040
Speaker 5: organization where you have the same thing. You know, the

534
00:31:26,040 --> 00:31:28,680
Speaker 5: government can't discriminate, but if you're a private group. If

535
00:31:28,680 --> 00:31:31,960
Speaker 5: you're just an association, then yeah, you can pick your leadership.

536
00:31:32,880 --> 00:31:35,800
Speaker 2: Hard to believe it's been twenty four years since the

537
00:31:35,840 --> 00:31:39,520
Speaker 2: Supreme Court ruling the Boy Scouts case. Remind us what

538
00:31:39,560 --> 00:31:42,480
Speaker 2: that ruling was about and the impact it's had.

539
00:31:42,840 --> 00:31:46,120
Speaker 5: The ruling was really, at its bottom about the power

540
00:31:46,200 --> 00:31:49,800
Speaker 5: of the First Amendment for groups to tell other people

541
00:31:49,840 --> 00:31:52,200
Speaker 5: to get lost. You know, if you want to pick

542
00:31:52,240 --> 00:31:54,200
Speaker 5: the people that are at the top of your organization,

543
00:31:54,320 --> 00:31:56,480
Speaker 5: they're going to be communicating to the public, they're going

544
00:31:56,560 --> 00:31:58,800
Speaker 5: to be showing your values. You really get to choose

545
00:31:58,800 --> 00:32:02,960
Speaker 5: who that is. And the Conservative Justices they laid down

546
00:32:02,960 --> 00:32:06,040
Speaker 5: this line in a five to four decision that private

547
00:32:06,080 --> 00:32:10,680
Speaker 5: groups like the Boy Scouts of America can exclude Scout

548
00:32:10,760 --> 00:32:14,560
Speaker 5: masters who are gay from their organization. That lawsuit was

549
00:32:14,600 --> 00:32:18,000
Speaker 5: brought under the new Jersey log and discrimination. This very

550
00:32:18,160 --> 00:32:22,320
Speaker 5: same anti discrimination suit that is being levied against the

551
00:32:22,360 --> 00:32:26,040
Speaker 5: State bar right now, And the Justice has said, listen,

552
00:32:26,200 --> 00:32:29,080
Speaker 5: you know the New Jersey logins discrimination. Sure it's broad,

553
00:32:29,160 --> 00:32:31,400
Speaker 5: but you know it can't go this far when it

554
00:32:31,480 --> 00:32:34,600
Speaker 5: deals with private association. So in the twenty four years

555
00:32:34,600 --> 00:32:38,280
Speaker 5: since then, you haven't seen this flipped in the same

556
00:32:38,360 --> 00:32:42,000
Speaker 5: way as much, and it looks like it's an opportunity

557
00:32:42,360 --> 00:32:46,760
Speaker 5: for progressive groups to use this conservative court's opinion to

558
00:32:46,920 --> 00:32:50,640
Speaker 5: lean into di to do more to pick the leaders

559
00:32:50,680 --> 00:32:53,640
Speaker 5: that they want in positions to communicate their values to

560
00:32:53,680 --> 00:32:57,120
Speaker 5: the public, and that could mean adding more people of

561
00:32:57,160 --> 00:33:00,960
Speaker 5: different gender identities or you know, people of color to

562
00:33:01,360 --> 00:33:04,080
Speaker 5: board positions and leadership positions. I think that it comes

563
00:33:04,120 --> 00:33:07,320
Speaker 5: down to this general thing that what's good for the

564
00:33:07,360 --> 00:33:10,400
Speaker 5: goose is good for the gander. So the question with

565
00:33:10,480 --> 00:33:13,440
Speaker 5: discrimination with private groups, right, is if you get to

566
00:33:13,520 --> 00:33:16,800
Speaker 5: discriminate by telling people they can't come in, how far

567
00:33:16,840 --> 00:33:19,560
Speaker 5: are you able to use that to say only certain

568
00:33:19,600 --> 00:33:22,719
Speaker 5: people can come in for this particular job. We're going

569
00:33:22,800 --> 00:33:24,920
Speaker 5: to see an appeal of this case the New Jersey

570
00:33:25,000 --> 00:33:28,360
Speaker 5: Supreme Court, and it's still an open question how far

571
00:33:28,600 --> 00:33:31,200
Speaker 5: that First Amendment is going to protect this novel theory.

572
00:33:31,720 --> 00:33:36,040
Speaker 2: Let's turn to another interesting legal issue. The North Carolina

573
00:33:36,120 --> 00:33:41,000
Speaker 2: Supreme Court has blocked the certification of reelection for one

574
00:33:41,040 --> 00:33:42,960
Speaker 2: of its own sitting justices.

575
00:33:43,360 --> 00:33:44,200
Speaker 1: Tell us about this.

576
00:33:44,920 --> 00:33:48,400
Speaker 5: We had a big decision out of North Carolina yesterday

577
00:33:48,600 --> 00:33:51,720
Speaker 5: and we also have the development today the North Carolina

578
00:33:51,880 --> 00:33:57,200
Speaker 5: Supreme Court decided to pause the certification for votes given

579
00:33:57,240 --> 00:34:01,360
Speaker 5: to Alison Riggs, who's a sitting member of that very court.

580
00:34:01,880 --> 00:34:05,800
Speaker 5: A challenger of hers, the Republican, who's down roughly seven

581
00:34:05,920 --> 00:34:10,239
Speaker 5: hundred votes, brought up claims to the state's election board

582
00:34:10,440 --> 00:34:15,800
Speaker 5: that there should be about fifty six thousand voters excluded,

583
00:34:16,320 --> 00:34:21,200
Speaker 5: and they're both not counted. Those voters were different groups.

584
00:34:21,520 --> 00:34:26,960
Speaker 5: Old voting requirements in the state didn't necessarily mandate that

585
00:34:27,000 --> 00:34:30,719
Speaker 5: a voter would have the driver's license number or their

586
00:34:30,719 --> 00:34:34,360
Speaker 5: Social Security number logged with the state to register. Since

587
00:34:34,520 --> 00:34:37,279
Speaker 5: that sign things have changed and the state isn't going

588
00:34:37,360 --> 00:34:41,000
Speaker 5: to hold you know, that against particular voters. They're not

589
00:34:41,040 --> 00:34:43,799
Speaker 5: going to exclude them after the fact because of that.

590
00:34:44,400 --> 00:34:48,600
Speaker 5: There's also issues dealing with overseas voters, where the Republican

591
00:34:48,680 --> 00:34:51,680
Speaker 5: claims that, you know, these folks never actually came to

592
00:34:52,040 --> 00:34:54,800
Speaker 5: North Carolina, so they shouldn't be considered residents. You know,

593
00:34:54,840 --> 00:34:56,919
Speaker 5: they might be army brats that were born at base

594
00:34:57,040 --> 00:34:59,480
Speaker 5: or things like that, or just living abroad. And then

595
00:34:59,520 --> 00:35:02,920
Speaker 5: there's a se with service members overseas sending in their

596
00:35:02,960 --> 00:35:06,200
Speaker 5: ballots and his claims are that several hundred of these

597
00:35:06,239 --> 00:35:09,840
Speaker 5: perhaps thousands didn't include photo copies of their ideas that

598
00:35:09,880 --> 00:35:14,359
Speaker 5: are necessary under North Carolina law. The state election board said, no,

599
00:35:14,440 --> 00:35:16,799
Speaker 5: we're not going to move forward with this. The vote

600
00:35:16,840 --> 00:35:21,080
Speaker 5: should be certified, and the Republican challenger sued. His name

601
00:35:21,120 --> 00:35:24,320
Speaker 5: is Judge Griffin, and he sued first in state court

602
00:35:24,640 --> 00:35:27,800
Speaker 5: and then state appeals Court and then the state Supreme Court.

603
00:35:28,120 --> 00:35:32,760
Speaker 5: That was taken out to federal court by the Justice,

604
00:35:33,120 --> 00:35:37,120
Speaker 5: and the North Carolina Supreme Court took it back yesterday

605
00:35:37,480 --> 00:35:39,320
Speaker 5: they decided that they were going to put a pause

606
00:35:39,360 --> 00:35:45,239
Speaker 5: on certification for that election. And today Justice Riggs, who

607
00:35:45,520 --> 00:35:49,080
Speaker 5: recused herself from the decision yesterday, she's now appealed that

608
00:35:49,160 --> 00:35:52,560
Speaker 5: to the Fourth Circuit asking them to say, no, we're

609
00:35:52,560 --> 00:35:55,239
Speaker 5: going to introject ourselves here. We're going to demand that

610
00:35:55,320 --> 00:35:56,160
Speaker 5: the state certified.

611
00:35:56,719 --> 00:35:57,800
Speaker 1: That's crazy stuff.

612
00:35:58,160 --> 00:36:00,320
Speaker 5: It is in it. It raises a whole most of

613
00:36:00,400 --> 00:36:03,720
Speaker 5: really interesting state and federal constitutional issues.

614
00:36:04,000 --> 00:36:05,120
Speaker 3: So if you were to.

615
00:36:05,080 --> 00:36:08,360
Speaker 5: Exclude these votes, does that mean that you now have

616
00:36:08,480 --> 00:36:12,560
Speaker 5: treated voters desperately because all of the other races that

617
00:36:12,600 --> 00:36:16,279
Speaker 5: were impacted by these votes weren't excluded. So does that

618
00:36:16,320 --> 00:36:19,600
Speaker 5: mean local races have to get toss you know, county

619
00:36:19,920 --> 00:36:24,319
Speaker 5: states other statewide races are impacted because the challenger here

620
00:36:24,360 --> 00:36:26,520
Speaker 5: is only asking them to be tossed in this one case,

621
00:36:26,760 --> 00:36:29,840
Speaker 5: and that raises federal constitution issues, you know, for equal

622
00:36:29,840 --> 00:36:31,200
Speaker 5: treatment and equal protection.

623
00:36:31,560 --> 00:36:33,160
Speaker 1: You'll have to come back Alex to tell us what

624
00:36:33,200 --> 00:36:35,560
Speaker 1: happens in this case. Thanks so much.

625
00:36:36,160 --> 00:36:40,239
Speaker 2: That's Alex Ebert, Bloomberg Law Senior Correspondent, and that's it

626
00:36:40,280 --> 00:36:42,880
Speaker 2: for this edition of The Bloomberg Law Show. Remember you

627
00:36:42,920 --> 00:36:45,400
Speaker 2: can always get the latest legal news on our Bloomberg

628
00:36:45,440 --> 00:36:49,080
Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify,

629
00:36:49,280 --> 00:36:54,320
Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law,

630
00:36:54,719 --> 00:36:57,280
Speaker 2: And remember to tune into The Bloomberg Law Show every

631
00:36:57,360 --> 00:37:01,240
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso

632
00:37:01,400 --> 00:37:02,960
Speaker 2: and you're listening to Bloomberg