Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: President elect Donald Trump is scheduled to be sentenced this
Speaker 2: Fronde for his conviction on criminal charges in the New
Speaker 2: York hush money case. A jury convicted him back in
Speaker 2: May of thirty four felony counts in a scheme to
Speaker 2: hide hush money payments to a porn star during his
Speaker 2: twenty sixteen campaign, so clearly before he became president. The
Speaker 2: conviction made Trump the first US president, whether sitting or former,
Speaker 2: to be convicted of a crime, and now he's basically
Speaker 2: trying to erase the conviction so that he doesn't become
Speaker 2: the first felon to be sworn in as the president
Speaker 2: of the United States. Both the New York trial judge
Speaker 2: and an appellate judge have refused to put off his
Speaker 2: sentencing based on his arguments that a president elect is
Speaker 2: entitled to the same sweeping immunity that a sitting gets.
Speaker 2: So now Trump is going to the Supreme Court, which
Speaker 2: has been friendly to his claims of presidential immunity. He's
Speaker 2: asking the justices to intervene in the state hush money
Speaker 2: criminal case to prevent his sentencing from going forward quote,
Speaker 2: the Court should enter an immediate stay of further proceedings
Speaker 2: in the New York Trial Court to prevent grave injustice
Speaker 2: and harm to the institution of the Presidency and the
Speaker 2: operations of the federal government. Joining me is Bloomberg Legal
Speaker 2: reporter Eric Larson, who's been covering all the proceedings in
Speaker 2: New York and there have been many Eric tell us
Speaker 2: about Trump's latest filing with the Supreme Court.
Speaker 3: So late last night, his lawyers filed a petition with
Speaker 3: the Supreme Court asking for a stay of the sentencing
Speaker 3: hearing that is scheduled for Friday morning here in Manhattan.
Speaker 3: So this was sort of a fast track, sort of
Speaker 3: unexpected that he was going to go this quickly to
Speaker 3: the Supreme Court. But earlier a New York appellate judge
Speaker 3: in Manhattan had agreed with the trial judge and that
Speaker 3: the sense things should go forward. So with that ruling,
Speaker 3: he went ahead and went straight to the Supreme Court
Speaker 3: to request a stay while he continues to press his
Speaker 3: appeal in New York State Court.
Speaker 2: So what are the grounds for him asking the Supreme
Speaker 2: Court to step in.
Speaker 3: So they're the same arguments that he made with the
Speaker 3: New York Appellate Court, and with the judge who oversaw
Speaker 3: the hush money trial, it is all about his interpretation
Speaker 3: of presidential immunity. Of course, that the broad legal doctrine
Speaker 3: that was expanded by the Supreme Court last year or
Speaker 3: in a different criminal case against Trump, where they held
Speaker 3: for the first time that former presidents have brought immunity
Speaker 3: from criminal charges related to their official conduct in office.
Speaker 3: So even though this hush money case relates to his
Speaker 3: actions before he was elected in twenty sixteen, and even
Speaker 3: though he was tried convicted last year while he was
Speaker 3: just a private citizen, I mean, before he was even
Speaker 3: elected in the November election, notwithstanding all that, he argues
Speaker 3: that he's protected from this guilty verdict by the concept
Speaker 3: of presidential immunity. He argues that having this verdict the
Speaker 3: hanging over him would undermine his authorities and his credibility
Speaker 3: with world leaders and things like this, all of the
Speaker 3: reasons that the Supreme Court has previously granted this kind
Speaker 3: of immunity to presidents to begin with, to make sure
Speaker 3: that the office of the presidency is powerful and protected
Speaker 3: and whatnot. Clearly that is not how the Manhattan District
Speaker 3: Attorney sees it, and that's also not how the judge
Speaker 3: thought or the appellate judge who ruled against him. Will
Speaker 3: see what the Supreme Court thinks. But for now, he's
Speaker 3: saying that even though he's just president elect, this immunity
Speaker 3: should be extended to him.
Speaker 2: The judge in this case has already said that he's
Speaker 2: not going to sentence him to time or probation or anything.
Speaker 2: It's sort of like a formality, but it will put
Speaker 2: on the record that he's been convicted of felonies.
Speaker 3: It's an unconditional discharge, is what Judge Murchon called it.
Speaker 3: It means that, you know, because of these unusual circumstances
Speaker 3: with a defendant being convicted but then winning a presidential
Speaker 3: election before being sentenced, the judge went ahead and said, look,
Speaker 3: I'm not actually going to sentence you to any time
Speaker 3: behind bars, or probation or a fine or anything. He's
Speaker 3: getting an unconditional discharge, which means zero penalty other than
Speaker 3: having the conviction remain intact. But it's that that Trump
Speaker 3: wants to stop from happening. He doesn't even want that
Speaker 3: hanging over him, you know. His lawyer also made the
Speaker 3: argument that the appellate judge said was pretty weak. But
Speaker 3: his lawyer did argue that there's always the chance that
Speaker 3: Judge Mrchan could backtrack and sentence him to time in prison,
Speaker 3: even though he said he wouldn't. But the judge didn't
Speaker 3: really buy that argument. You know, if this this thing
Speaker 3: goes ahead on Friday, clearly Trump is not at any.
Speaker 2: Risk of going to jail, and he doesn't have to
Speaker 2: even be at the sentencing, right, that's right.
Speaker 3: Jes Mareschawan told him that he had the option to
Speaker 3: appear virtually according to court papers, Trump is already indicated
Speaker 3: that that is what he would do.
Speaker 1: What's unusual here.
Speaker 2: One unusual thing is that normally you have to wait
Speaker 2: until a case is litigated in the state courts before
Speaker 2: you go to the Supreme Court.
Speaker 1: And in this case, he's still appealing to the Court.
Speaker 3: Of Appeals, right, right, He does plan to continue to
Speaker 3: press the appeal through the New York state court system.
Speaker 3: He did say in his filing with the Supreme Court
Speaker 3: last night that he was filing a similar petition for
Speaker 3: a state simultaneously with the New York Court of Appeals,
Speaker 3: the highest court in New York. We couldn't verify that
Speaker 3: that had been filed. In fact, the court that it
Speaker 3: hadn't been, but it seems that Trump is at least
Speaker 3: planning to file something there to sort of connect the
Speaker 3: dots to the Supreme Court, as it were. But clearly
Speaker 3: time is of the essence and Trump's view, that's what
Speaker 3: they've said all along here, So that might be one
Speaker 3: of the reasons why they just trumped straight to the
Speaker 3: Supreme Court. Of course, Trump is due to be inaugurated
Speaker 3: just ten days after this sentencing hearing exept for Friday.
Speaker 2: Right now, since the Second Circuit is in the purview
Speaker 2: of Justice Sonya Soto Mayor, she's asked the Manhattan District
Speaker 2: attorney for papers.
Speaker 3: That's right. She directed Alvin Bragg, the district's attorney, to
Speaker 3: respond to Trump's filing by tomorrow morning. So we would expect,
Speaker 3: or we hope, that we'll get some ruling from the
Speaker 3: Supreme Court by tomorrow night. Given that the sentencing hearing
Speaker 3: is happening Friday morning, it would.
Speaker 2: Take five Supreme Court justices to grant to stay. In
Speaker 2: the case, of course, there were six justices who voted
Speaker 2: to give him that broad presidential immunity from criminal prosecution.
Speaker 2: And another point is that it's Trump that's been asking
Speaker 2: for these delays in sentencing.
Speaker 1: It's been the.
Speaker 2: Strategy of delay, delayed, delay, and now that he's been
Speaker 2: elected president, he doesn't want to just delay the sentencing.
Speaker 1: He wants to eliminate the sentencing.
Speaker 3: That's right. That's one of the points that the appellate
Speaker 3: judge made at the hearing yesterday. She said that, you know,
Speaker 3: this timing was so inconvenient for Trump that he should
Speaker 3: have gone ahead and went through with the sentencing earlier.
Speaker 3: It's been delayed at least a couple of times, and
Speaker 3: the most recent delay was as a result of the election,
Speaker 3: but it could have happened months before the election, so
Speaker 3: that that is a strong argument in favor of the prosecution.
Speaker 3: But you know, Trump has had good luck with the
Speaker 3: Supreme Court in previous arguments around presidential immunity, so it's
Speaker 3: impossible to know how much weight they'll give that particular
Speaker 3: argument exactly.
Speaker 2: And he has been using that controversial ruling on presidential
Speaker 2: immunity to try to get this New York hush money
Speaker 2: conviction thrown out, but the judge has denied his motions twice.
Speaker 3: So there's really two separate orders from Judge Marschan that
Speaker 3: Trump is appealing that both relates to presidential immunity. The
Speaker 3: first decision was from December, when Judge Mrshan rejected Trump's
Speaker 3: argument that presidential immunity ruling from the Supreme Court undermines
Speaker 3: the verdict. He claims that the trial itself had been
Speaker 3: painted by witness testimony and other evidence that would not
Speaker 3: have been allowed at trial if that Supreme Court standard
Speaker 3: on presidential meunity had been in place, which it wasn't.
Speaker 3: It wasn't handed down until a few months later. So
Speaker 3: this is attorney argues that no, whatever evidence might have
Speaker 3: been disallowed under that standard wouldn't have effected the outcome
Speaker 3: of the verdict, that the remaining evidence was so strong,
Speaker 3: And then indeed that's what the judge agreed and ruled
Speaker 3: against Trump on that. The other argument was the sort
Speaker 3: of broader argument that the judge ruled earlier this month,
Speaker 3: you know, rejecting Trump's argument that the broad presidential immunity
Speaker 3: extends to a president elect. That was the bigger argument, Trump,
Speaker 3: that I won the election. Therefore, this whole criminal case
Speaker 3: should be thrown out, including the jury's verdict.
Speaker 1: This is the only case that went to trial.
Speaker 2: And the only prosecution really that that has been successful
Speaker 2: against Trump.
Speaker 1: He's he's managed to.
Speaker 2: Get rid of the federal cases and the Atlantic case
Speaker 2: is also in doubt.
Speaker 3: Right, So the Atlanta case is still hanging out there,
Speaker 3: although it's definitely in limbo. It's suffering its own problem.
Speaker 3: But the two big federal prosecutions of Trump, they were
Speaker 3: both dropped by the Justice Department after Trump won the election,
Speaker 3: simply because of the long standing policy of not prosecuting
Speaker 3: a sitting president. They knew that the cases wouldn't be
Speaker 3: able to proceed trial while Trump was in office, and
Speaker 3: therefore they dropped those charges. But even before he won,
Speaker 3: that case over the twenty twenty election was significantly narrowed
Speaker 3: during that Supreme Court decision that we discussed, where they
Speaker 3: gave him broad immunity from criminal charges over anything related
Speaker 3: to his official conduct. But yeah, the presidential immunity doctrine
Speaker 3: is very broad, and that's why those two criminal cases
Speaker 3: were dropped by the Justice Department. That's also while he'll
Speaker 3: argue to have that Georgia State case, which is also
Speaker 3: over the twenty twenty election, will argue to have that
Speaker 3: one tossed out as well. But like they said, that
Speaker 3: case is already suffering from it from his own problems
Speaker 3: because the prosecutor was thrown out of the case by
Speaker 3: an appealed court over an affair she was having with
Speaker 3: an investigator. So totally separate drama.
Speaker 1: From a purely legal perspective.
Speaker 2: It's going to be fascinating to see what the Supreme
Speaker 2: Court does here.
Speaker 3: No one really knows what's going to happen, but it
Speaker 3: could be an interesting test to see how far the
Speaker 3: Supreme Court is going to go to help Trump out
Speaker 3: even before he takes office.
Speaker 2: Well, at least this should be resolved quickly one way
Speaker 2: or the other. Thanks so much, Eric, That's Bloomberg Legal
Speaker 2: reporter Eric Larson coming up next on the Bloomberg Law Show.
Speaker 2: Net neutrality appears to be dead after a Court of
Speaker 2: Appeals ruling deals a blow to the FCC. I'm June
Speaker 2: Grosso and you're listening to Bloomberg. After decades of fighting,
Speaker 2: it appears that the battle over net neutrality rules is over.
Speaker 2: The US Court of Appeals for the Sixth Circuit has
Speaker 2: acts the Federal Communications Commissions net neutrality rules, saying the
Speaker 2: agency didn't have the authority to issue the rules. The
Speaker 2: decision demonstrates the impact of the Supreme Court's ruling in
Speaker 2: June doing away with the Chevron doctrine and holding that
Speaker 2: judges shouldn't yield to agency's readings of unclear laws. Joining
Speaker 2: me is Christopher You, a professor at the University of
Speaker 2: Pennsylvania's Carrie Law School who's written extensively on administrative and
Speaker 2: telecommunications law. Will you start by explaining just what net
Speaker 2: neutrality is.
Speaker 4: Net neutrality is a political fight that's been going on
Speaker 4: since the early two thousands. On the one side are
Speaker 4: people who believe that ISPs provide Internet service to homes
Speaker 4: and businesses shouldn't exercise any editorial control over the content
Speaker 4: that they provide access to. Opponents of network neutrality argue
Speaker 4: that in the modern Internet, it has become important for
Speaker 4: ISPs to filter certain content, sometimes for security reasons, sometimes
Speaker 4: to avoid spam and unwanted content, sometimes to enforce copyright laws,
Speaker 4: but it can also be to provide a more refined
Speaker 4: and tailored service to customers who want increasingly more diverse
Speaker 4: offerings from the Internet. So, for example, online gamers are
Speaker 4: extremely sensitive to delay, and they may want content that's
Speaker 4: prioritized over other content. Another example is if you're on
Speaker 4: your cell phone and you're taking a voice call. If
Speaker 4: you're in a low bandwidth spot, you might want the
Speaker 4: system to hold your email and continue to give you
Speaker 4: your voice call to make sure that you get good
Speaker 4: quality voice communications, and the fact that you have to
Speaker 4: wait for your email is not a big deal.
Speaker 2: So the Sixth Circuit rule that the FCC doesn't have
Speaker 2: the authority to issue the net neutrality rules?
Speaker 1: What did they base their determination on?
Speaker 4: The Sixth Circuit basis determination on a Supreme Court decision
Speaker 4: that change the rules that courts will use to determine
Speaker 4: the legality of an agency's interpretation of a statute. Before
Speaker 4: this decision Loperbrite, which the Supreme Court rendered in June
Speaker 4: twenty twenty four, courts tended to defer to the agency's
Speaker 4: interpretation of the statute. That is, as long as it
Speaker 4: was reasonable within the broad range of possibility, courts would
Speaker 4: accept the agency interpretation. And on the basis of this principle,
Speaker 4: we've seen agencies flip flop and their interpretations of the
Speaker 4: legality of net neutrality rules, saying that initially that they
Speaker 4: should adopt a more deregulatory approach starting in two thousand
Speaker 4: and two, then changing in twenty ten to a more
Speaker 4: regulatory approach, then back to a more deregulatory approach in
Speaker 4: twenty eighteen, and back to a more regulatory approach in
Speaker 4: twenty twenty four. And what the Supreme Court held is
Speaker 4: that this sort of flip flopping is inconsistent with the
Speaker 4: rule of law, inconsistent with the role of courts and agencies,
Speaker 4: and is actually hurting consumers and people who have to
Speaker 4: comply with law by creating a great deal of uncertainty.
Speaker 4: And after June twenty twenty four, instead of deferring to
Speaker 4: agency interpretations, courts are supposed to exercise their own judgment
Speaker 4: as to the best reading of the statute and apply that.
Speaker 4: And that's what the Sixth Circuit did.
Speaker 1: Is it the fault of.
Speaker 2: The FCC for flip flopping on its.
Speaker 1: Readings of the statute?
Speaker 2: The Court said, applying low or bright means we can
Speaker 2: and the FCC's vacillations.
Speaker 4: The fact that the FCC was vacillating on the right
Speaker 4: interpretation of the statute when deciding whether to apply that
Speaker 4: neutrality isn't really the fault of the FCC. In fact,
Speaker 4: that complied with the law that existed at the time.
Speaker 4: The decision that called for courts to defer to agency
Speaker 4: decisions that's called Chevron and has been in place since
Speaker 4: nineteen eighty six explicitly recognized that agencies are likely to
Speaker 4: change their minds and in fact endorse that idea. So
Speaker 4: what the prior regime envisioned is that vrocations of statutes
Speaker 4: were policy decisions, and just like say, for example, foreign
Speaker 4: policy changes with the advent of a new administration, we
Speaker 4: would expect this degree of policy to change as well.
Speaker 4: The problem the Supreme Court had with that is statutes
Speaker 4: aren't policy. Statutes are law, and the change of administration
Speaker 4: does not involve the change in the statute or change
Speaker 4: in the law. It's a change in the interpretation of
Speaker 4: the law. And that opens the door to the claim
Speaker 4: that interpreting law is policy, not lawmaking. And that's where
Speaker 4: the Supreme Court said, we don't do that anymore. If
Speaker 4: you want to change the statute, you need to actually
Speaker 4: amend it. It's not open for reinterpretation just because someone
Speaker 4: else occupies the White House.
Speaker 2: Lober Bright said that prior decisions that relied on that
Speaker 2: doctor the Chevron doctrine still have binding power, starry decisives.
Speaker 2: How did the Sixth Circuit get around that?
Speaker 4: The issue you're raising has been around owned with us
Speaker 4: since certainly the days of the war in court. I
Speaker 4: mean to give you a simple example. Gideon versus Wainwright
Speaker 4: announced that all criminal defendants must be provided with defense
Speaker 4: counsel provided by the government. And you know we had
Speaker 4: never as a country it provided that to indigence. And
Speaker 4: it raised a question, so does that mean every single
Speaker 4: conviction going back to the beginning of the Republic was
Speaker 4: inherently suspect? And what the Supreme Court has developed is
Speaker 4: a doctrine which is, we will apply our best understanding
Speaker 4: of the law to all cases that are ongoing, but
Speaker 4: to cases that are final. We're not going to overturn
Speaker 4: convictions going back hundreds of years. So the real question is,
Speaker 4: in a particular matter, if the courts have resolved the issue,
Speaker 4: the Supreme Court said, we will not disturb that decision,
Speaker 4: but for new matters involving cases that are still ongoing
Speaker 4: or cases that are newly submitted, they will apply a
Speaker 4: new set of principles. Here, every prior decision about net
Speaker 4: neutrality regarded a different net neutrality order either the declaratory
Speaker 4: judgment in two thousand and two or orders in twenty ten,
Speaker 4: twenty fifteen, twenty eighteen, and all of those have been
Speaker 4: resolved under law, and all of those decisions are now final.
Speaker 4: The decision in front of the Sixth Circuit involved a
Speaker 4: order that came out of twenty twenty four that had
Speaker 4: never been resolved or addressed by a court, and as
Speaker 4: a result, it was still a live issue, and under
Speaker 4: the Supreme Court's guidance, the Sixth Circuit applied the current
Speaker 4: rules that have been placed ince June twenty twenty four
Speaker 4: to address the legality of the twenty twenty four action.
Speaker 4: So all they're saying really is that we're not going
Speaker 4: to upset the decisions regarding the twenty ten, twenty fifteen,
Speaker 4: twenty eighteen orders. We are going to look at the
Speaker 4: twenty twenty four order with new eyes under the Supreme
Speaker 4: Court's current rules for how courts should evaluate agency interpretations
Speaker 4: of the statue.
Speaker 2: Does this decision end the legal battle over net neutrality rules?
Speaker 2: Brendan Carr, who Trump has named as an incoming FCC chair,
Speaker 2: has been a strong critic of net neutrality.
Speaker 4: So is this the end the Sixth Circuit decision most
Speaker 4: likely ends the controversy over the legality of net neutrality.
Speaker 4: The parties who support the twenty twenty four order that
Speaker 4: the Sixth Circuit overturned could still appeal the issue to
Speaker 4: the Supreme Court, and so there remain some possibility that
Speaker 4: there will be further review of the Sixth Circuit decision.
Speaker 4: But honestly, having clorked on the court myself and having
Speaker 4: some experience in how they operate, my guess is that
Speaker 4: this is not likely to be the kind of case
Speaker 4: that they take. It doesn't bear the kinds of conflicts
Speaker 4: between different courts and different parts of the country that
Speaker 4: has been the hallmark of the types of cases the
Speaker 4: Supreme Court takes.
Speaker 1: Theseis as far as lowbribright.
Speaker 2: In general, are the courts around the country interpreting the
Speaker 2: decision there differently, are their conflicting decisions out there?
Speaker 4: There are no conflicting decisions on the net neutrality order,
Speaker 4: And in fact, the parties who litigated that case before
Speaker 4: the Sixth Circuit are now bound by that decision and
Speaker 4: are really obligated to follow it, so they're not really
Speaker 4: in a position to bring a new challenge to the
Speaker 4: twenty twenty four order. From a broader perspective, the Sixth
Speaker 4: Circuit has taken the approach that gives it a great
Speaker 4: deal of latitude to deviate from prior judicial decisions that
Speaker 4: presented the same issue but arose from a different agency order.
Speaker 4: And that actually opens the door to a fairly broad
Speaker 4: scope of action for courts to revisit issues that had
Speaker 4: been adjusted by prior courts and hadn't been resolved now.
Speaker 4: I don't think that's improper for the Sixth Circuit, and
Speaker 4: in fact, the Supreme Court, by changing the interpretive rules,
Speaker 4: expects there to be different outcomes. And in fact, if
Speaker 4: there was too little latitude for courts to apply their
Speaker 4: own judgment as to the best reading of the statute
Speaker 4: and instead to continue to defer to what agencies thought
Speaker 4: were the best reading, that would actually create a very
Speaker 4: little room for the kinds of changes in law that
Speaker 4: the Supreme Court has called for. And it's during twenty
Speaker 4: twenty four decision. I think the Sixth Circuit's opinion, while
Speaker 4: one of the first to address this issue, is likely
Speaker 4: to be borne out by further decisions in the future.
Speaker 1: And do you.
Speaker 2: Think that we're going to see more federal regulations at
Speaker 2: the FCC and other agencies followed out or you know,
Speaker 2: disregarded agencies.
Speaker 4: Like the FCC are certainly facing a more challenging environment
Speaker 4: in which courts are likely to be more skeptical of
Speaker 4: the actions they take. The previous regime gave them deference
Speaker 4: and so therefore they had a pretty wide latitude to
Speaker 4: follow the policies that they preferred. Now they're going to
Speaker 4: have to justify their actions a bit more specifically, and
Speaker 4: that's going to represent a clear challenge to them.
Speaker 2: There have been fights over net neutrality for decades. Does
Speaker 2: it seem odd that now this one court is going
Speaker 2: to put the whole issue to rest.
Speaker 4: Courts have to decide close cases all the time, and
Speaker 4: even if it's a very very narrow issue, they generally
Speaker 4: don't shy away from resolving those issues, and I think
Speaker 4: that sort of characterizes what's going on with net neutrality.
Speaker 4: I think there are good arguments on both sides. I
Speaker 4: personally agree with the way the Six Circuit resolve the issue,
Speaker 4: but I understand why other people feel differently. The bigger
Speaker 4: issue that the Supreme Court addressed is to eliminate the
Speaker 4: possibility or in this case, the net neutrality. The reality
Speaker 4: that we saw what was the laws flip flop every
Speaker 4: time the White House changed party. And in fact, many
Speaker 4: people would say, if there's a close issue, we're better
Speaker 4: off having courts resolving it once on the best terms
Speaker 4: it can and then letting that interpretation stand until Congress
Speaker 4: sees fit to amend it or not. The world in
Speaker 4: which we're in where we saw policy flip flop multiple times,
Speaker 4: is not one that's conducive to creating great Internet connectivity
Speaker 4: or to creating stable expectations for consumers and Internet users
Speaker 4: to understand what they're getting. And so, in fact, I
Speaker 4: think that the fact that there are tough cases is
Speaker 4: not a reason for courts to shy away from making
Speaker 4: tough decisions. It doesn't justify allowing judicial decisions to change
Speaker 4: back and forth with the political wins.
Speaker 2: Thanks so much for joining me on the show. That's
Speaker 2: Professor Christopher You of the University of Pennsylvania carry Law School.
Speaker 2: Coming up next, a new Jersey decision turns the tables
Speaker 2: on the move to kill DEI programs.
Speaker 1: This is Bloomberg.
Speaker 2: The First Amendment right of free association has led to
Speaker 2: court rulings allowing a gay softball league to strike straight
Speaker 2: guys from teams, lineups, student groups to bar their doors
Speaker 2: to members who disagree with their mission, and even some
Speaker 2: religiously affiliated employers to fire workers who support abortion rights,
Speaker 2: while a new Jersey Appeals Court ruling is turning the
Speaker 2: tables by saying that the reverse is true as well,
Speaker 2: and that private organizations can also deliberately include certain people
Speaker 2: in their groups. It's the first decision of its kind
Speaker 2: in the country. A counter to the movement to kill diversity,
Speaker 2: equity and inclusion programs. Joining me is Alex Ebert Bloomberg
Speaker 2: Law Senior correspondent who's written about this. Tell us about
Speaker 2: this new Jersey decision that turned the tables on the
Speaker 2: movement to n DEI programs.
Speaker 5: So this decision is groundbreaking and that it flips in away.
Speaker 5: The Supreme Court's ru is that groups can discriminate when
Speaker 5: they pick their leaders, and the new Jersey Court is saying, well,
Speaker 5: if you can discriminate when you pick your leaders exclude people,
Speaker 5: that means you can discriminate to include people as well.
Speaker 5: If you're going to get to pick the leadership that
Speaker 5: will guide your group and enforce your values, like let's
Speaker 5: say the boy Scouts of America can when it excludes
Speaker 5: certain people, then that means that you can include specific
Speaker 5: people for specific leadership position that essentially is DEI.
Speaker 1: And this had to do with a bar association.
Speaker 5: It did. Yeah, so bar association litigation is popping up
Speaker 5: all over the country. You have conservative and libertarian groups
Speaker 5: in particular, bringing cases against DEI work that bar associations
Speaker 5: are doing. They're going to sue over leadership spots, over
Speaker 5: programs for particular attorney groups, and basically anything that sort
Speaker 5: of looks at race, gender orientation, things like that in
Speaker 5: order to elevate particular jorneyes that have maybe been disadvantaged
Speaker 5: in the past. That's what happened here. New Jersey for
Speaker 5: many years has had a program where they reserve at
Speaker 5: large leadership positions on committee is for people that are
Speaker 5: certain disadvantaged groups. So you'll see black lawyer positions reserved.
Speaker 5: You'll see positions reserved for women, for people that are elderly,
Speaker 5: for people with disabilities, for people in the LGBTQ community.
Speaker 5: And this lawsuit was saying, hey, what you're doing is
Speaker 5: violating this really powerful New Jersey loginst discrimination.
Speaker 1: So now you're right.
Speaker 2: It all comes back to one of the first amendments
Speaker 2: extremely undervalued benefits, the right to tell people to get lost,
Speaker 2: tell us about some cases in that arena.
Speaker 5: Yeah, absolutely so. An undervalued part of the First Amendment
Speaker 5: is this power to associate with people that you want
Speaker 5: to right. This boils down to if you're starting a club,
Speaker 5: if you've got a group, you've got the right to association.
Speaker 5: You can't be forced to join up with people that
Speaker 5: you don't want to hang out with. Now, courts have
Speaker 5: interpreted that as saying student groups can bar the doors
Speaker 5: to students that don't agree with their value system, or
Speaker 5: certain religious employers can exclude from job positions people that
Speaker 5: are for abortion rights. Or you can have a court say, hey,
Speaker 5: this case, softball league doesn't have to put into the
Speaker 5: lineup straight players. And it boils down to this First
Speaker 5: Amendment right that if you want to exclude people because
Speaker 5: you want to create a community, you get to do
Speaker 5: that if you're a private organization.
Speaker 2: To what does in perspective, where have we seen suits
Speaker 2: against DEI programs.
Speaker 5: So we've seen lawsuits against DEI pop up across the country.
Speaker 5: We've seen them against the American Bar Association, We've seen
Speaker 5: them against the Wisconsin Bar. We've seen a lot of
Speaker 5: activity around the even places without lawsuits, including Florida, where
Speaker 5: the STAKEHOURT system has basically done a one to eighty
Speaker 5: on being very pro DEI for certain years, and then
Speaker 5: now they're removing THEI entirely, both from the way it
Speaker 5: communicates to its members and from the way it spends
Speaker 5: money and organizes groups. So you've seen this issue pop
Speaker 5: up across the United States, from big states to even
Speaker 5: tiny ones like West Virginia, where there's a new lawsuit
Speaker 5: challenging an at large member of a leadership community for a.
Speaker 2: Lawyer that is black bars from Wisconsin to Florida. Are
Speaker 2: they rolling back diversity programs and also you see corporations
Speaker 2: rolling back diversity programs. Are they doing that because they're
Speaker 2: afraid of a lawsuit or are they doing that because
Speaker 2: the law has changed.
Speaker 5: I think it's a little bit of both. Jude. So
Speaker 5: if we think about it, sometimes they're under the gun
Speaker 5: of a lawsuit to alter programs, and sometimes they'll say
Speaker 5: that their changes of programs won't reduce the ability, you know,
Speaker 5: for groups to access certain benefits. But then there's some
Speaker 5: states like Florida which are proactively doing this. They have
Speaker 5: a more conservative judiciary that the Santus has put in
Speaker 5: place and they're rolling back things and they have been
Speaker 5: for several years even without litigation in their state. So
Speaker 5: it really depends on whether or not the impetus is
Speaker 5: coming from the judiciary and the judges, or if it's
Speaker 5: coming from a conservative or libertarian oriented legal community that
Speaker 5: is set up with DEI and wants to see it gone.
Speaker 2: This case is being appealed to the New Jersey Supreme Court.
Speaker 2: Where does that court stand as far as being conservative
Speaker 2: or liberal.
Speaker 5: So we've done big stories on the New Jersey Supreme
Speaker 5: Court recently, and I've even spoken with you in the
Speaker 5: past on this where the court is extremely tough to gauge.
Speaker 5: They have unwritten rules which require partisan balance for lack
Speaker 5: of a better term on it. So it's unclear. But
Speaker 5: the Bar itself is a very pro DEI and it
Speaker 5: has been running this kind of program with a large
Speaker 5: seats for decades and only recently was their legal challenge
Speaker 5: brought against it, something that's kind of been in place
Speaker 5: for a long time, and the bar has been expanding.
Speaker 5: So we see the appeals court here potentially keying up
Speaker 5: a broader fight before that New Jersey Supreme Court about
Speaker 5: whether or not their state judicial system, which is one
Speaker 5: of the largest by attorney number in the country, will
Speaker 5: allow this sort of minority participation.
Speaker 2: Benefit and explain the difference between private organizations and DEI
Speaker 2: and public organizations.
Speaker 5: Yeah, there's going to be nuanced differences between a lot
Speaker 5: of these, right. The key thing here is that bar
Speaker 5: associations are often private associations. They're the same thing is
Speaker 5: you know, if you have a club that supports your
Speaker 5: local river cleanup, or if you have, you know, a
Speaker 5: big national organization like the NRA. You know, these people
Speaker 5: get to pick who's on their leadership board based on
Speaker 5: the value systems that they hold deer right, so that
Speaker 5: into a value system for the New Jersey State Bar Association,
Speaker 5: which is liberal and has had d programs for a
Speaker 5: long time. It might be different than a bar association
Speaker 5: somewhere else, but that is different from a corporation right
Speaker 5: where you have federal accommodation and employment laws that prohibit
Speaker 5: outright quotas or discrimination in that way, or a government
Speaker 5: organization where you have the same thing. You know, the
Speaker 5: government can't discriminate, but if you're a private group. If
Speaker 5: you're just an association, then yeah, you can pick your leadership.
Speaker 2: Hard to believe it's been twenty four years since the
Speaker 2: Supreme Court ruling the Boy Scouts case. Remind us what
Speaker 2: that ruling was about and the impact it's had.
Speaker 5: The ruling was really, at its bottom about the power
Speaker 5: of the First Amendment for groups to tell other people
Speaker 5: to get lost. You know, if you want to pick
Speaker 5: the people that are at the top of your organization,
Speaker 5: they're going to be communicating to the public, they're going
Speaker 5: to be showing your values. You really get to choose
Speaker 5: who that is. And the Conservative Justices they laid down
Speaker 5: this line in a five to four decision that private
Speaker 5: groups like the Boy Scouts of America can exclude Scout
Speaker 5: masters who are gay from their organization. That lawsuit was
Speaker 5: brought under the new Jersey log and discrimination. This very
Speaker 5: same anti discrimination suit that is being levied against the
Speaker 5: State bar right now, And the Justice has said, listen,
Speaker 5: you know the New Jersey logins discrimination. Sure it's broad,
Speaker 5: but you know it can't go this far when it
Speaker 5: deals with private association. So in the twenty four years
Speaker 5: since then, you haven't seen this flipped in the same
Speaker 5: way as much, and it looks like it's an opportunity
Speaker 5: for progressive groups to use this conservative court's opinion to
Speaker 5: lean into di to do more to pick the leaders
Speaker 5: that they want in positions to communicate their values to
Speaker 5: the public, and that could mean adding more people of
Speaker 5: different gender identities or you know, people of color to
Speaker 5: board positions and leadership positions. I think that it comes
Speaker 5: down to this general thing that what's good for the
Speaker 5: goose is good for the gander. So the question with
Speaker 5: discrimination with private groups, right, is if you get to
Speaker 5: discriminate by telling people they can't come in, how far
Speaker 5: are you able to use that to say only certain
Speaker 5: people can come in for this particular job. We're going
Speaker 5: to see an appeal of this case the New Jersey
Speaker 5: Supreme Court, and it's still an open question how far
Speaker 5: that First Amendment is going to protect this novel theory.
Speaker 2: Let's turn to another interesting legal issue. The North Carolina
Speaker 2: Supreme Court has blocked the certification of reelection for one
Speaker 2: of its own sitting justices.
Speaker 1: Tell us about this.
Speaker 5: We had a big decision out of North Carolina yesterday
Speaker 5: and we also have the development today the North Carolina
Speaker 5: Supreme Court decided to pause the certification for votes given
Speaker 5: to Alison Riggs, who's a sitting member of that very court.
Speaker 5: A challenger of hers, the Republican, who's down roughly seven
Speaker 5: hundred votes, brought up claims to the state's election board
Speaker 5: that there should be about fifty six thousand voters excluded,
Speaker 5: and they're both not counted. Those voters were different groups.
Speaker 5: Old voting requirements in the state didn't necessarily mandate that
Speaker 5: a voter would have the driver's license number or their
Speaker 5: Social Security number logged with the state to register. Since
Speaker 5: that sign things have changed and the state isn't going
Speaker 5: to hold you know, that against particular voters. They're not
Speaker 5: going to exclude them after the fact because of that.
Speaker 5: There's also issues dealing with overseas voters, where the Republican
Speaker 5: claims that, you know, these folks never actually came to
Speaker 5: North Carolina, so they shouldn't be considered residents. You know,
Speaker 5: they might be army brats that were born at base
Speaker 5: or things like that, or just living abroad. And then
Speaker 5: there's a se with service members overseas sending in their
Speaker 5: ballots and his claims are that several hundred of these
Speaker 5: perhaps thousands didn't include photo copies of their ideas that
Speaker 5: are necessary under North Carolina law. The state election board said, no,
Speaker 5: we're not going to move forward with this. The vote
Speaker 5: should be certified, and the Republican challenger sued. His name
Speaker 5: is Judge Griffin, and he sued first in state court
Speaker 5: and then state appeals Court and then the state Supreme Court.
Speaker 5: That was taken out to federal court by the Justice,
Speaker 5: and the North Carolina Supreme Court took it back yesterday
Speaker 5: they decided that they were going to put a pause
Speaker 5: on certification for that election. And today Justice Riggs, who
Speaker 5: recused herself from the decision yesterday, she's now appealed that
Speaker 5: to the Fourth Circuit asking them to say, no, we're
Speaker 5: going to introject ourselves here. We're going to demand that
Speaker 5: the state certified.
Speaker 1: That's crazy stuff.
Speaker 5: It is in it. It raises a whole most of
Speaker 5: really interesting state and federal constitutional issues.
Speaker 3: So if you were to.
Speaker 5: Exclude these votes, does that mean that you now have
Speaker 5: treated voters desperately because all of the other races that
Speaker 5: were impacted by these votes weren't excluded. So does that
Speaker 5: mean local races have to get toss you know, county
Speaker 5: states other statewide races are impacted because the challenger here
Speaker 5: is only asking them to be tossed in this one case,
Speaker 5: and that raises federal constitution issues, you know, for equal
Speaker 5: treatment and equal protection.
Speaker 1: You'll have to come back Alex to tell us what
Speaker 1: happens in this case. Thanks so much.
Speaker 2: That's Alex Ebert, Bloomberg Law Senior Correspondent, and that's it
Speaker 2: for this edition of The Bloomberg Law Show. Remember you
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