1 00:00:00,480 --> 00:00:05,680 Speaker 1: You're listening to Bloomberg Law with June Grazzo from Bloomberg Radio. 2 00:00:05,960 --> 00:00:09,000 Speaker 1: The Department of Justice and state attorneys general have been 3 00:00:09,039 --> 00:00:13,400 Speaker 1: investigating Google's dominance over the one thirty billion dollar digital 4 00:00:13,440 --> 00:00:17,400 Speaker 1: advertising market for about a year, and the Justice Department 5 00:00:17,480 --> 00:00:21,520 Speaker 1: is drafting an antitrust lawsuit against the company. Joining me 6 00:00:21,600 --> 00:00:26,400 Speaker 1: is Jennifer Ray, Bloomberg Intelligence Senior Litigation Analyst. So, Jen, 7 00:00:26,520 --> 00:00:30,160 Speaker 1: do we know what charges the Justice Department is incorporating 8 00:00:30,320 --> 00:00:33,879 Speaker 1: in its complaint. We really don't. The only thing that 9 00:00:33,920 --> 00:00:36,640 Speaker 1: we have is just broadly that it sounds like, at 10 00:00:36,720 --> 00:00:39,320 Speaker 1: least what's been reported in the news, that they're looking 11 00:00:39,400 --> 00:00:42,680 Speaker 1: at advertising and I think that's not a surprise because 12 00:00:42,720 --> 00:00:46,080 Speaker 1: in Europe, Google some of its conduct within its advertising 13 00:00:46,120 --> 00:00:50,960 Speaker 1: realm has already been penalized in Europe for abuse of dominance, 14 00:00:51,120 --> 00:00:54,360 Speaker 1: so that isn't surprising. But but it could be that 15 00:00:54,400 --> 00:00:57,720 Speaker 1: they're also looking at other conducts. You know, these investigations 16 00:00:58,200 --> 00:01:01,600 Speaker 1: really dive into the nitty retty of a company's business 17 00:01:01,720 --> 00:01:04,120 Speaker 1: and really get into the weeds, and they could be 18 00:01:04,160 --> 00:01:07,399 Speaker 1: looking at just about anything. There was a study done 19 00:01:07,480 --> 00:01:10,120 Speaker 1: that gave a sort of a roadmap for what a 20 00:01:10,160 --> 00:01:14,440 Speaker 1: complaint might look like, what do these studies authors suggest 21 00:01:14,680 --> 00:01:18,360 Speaker 1: should be some of the components of the complaint right now? 22 00:01:18,440 --> 00:01:21,399 Speaker 1: That study did focus on the advertising world, and you 23 00:01:21,440 --> 00:01:24,200 Speaker 1: know what they really said is that at this point, 24 00:01:24,560 --> 00:01:28,119 Speaker 1: through developing its own business and through acquiring other companies, 25 00:01:28,480 --> 00:01:32,800 Speaker 1: Google is not only a major displayer of ads. Let's say, 26 00:01:32,800 --> 00:01:35,400 Speaker 1: on on its own websites that it owns, like Google 27 00:01:35,440 --> 00:01:38,520 Speaker 1: Maps or YouTube, or just through a search when somebody's 28 00:01:38,600 --> 00:01:42,240 Speaker 1: using Google to search a topic, but it also controls 29 00:01:42,560 --> 00:01:44,880 Speaker 1: a lot of the products that are needed, you know, 30 00:01:45,040 --> 00:01:47,520 Speaker 1: sort of across the whole supply chain to link up 31 00:01:47,560 --> 00:01:50,760 Speaker 1: an advertiser with a publisher. Let's say, you know, a 32 00:01:50,800 --> 00:01:53,640 Speaker 1: third party website like The New York Times that wants 33 00:01:53,640 --> 00:01:56,800 Speaker 1: to have ads displayed on its website. UM. And that 34 00:01:56,880 --> 00:01:59,240 Speaker 1: because it has so much control of so many of 35 00:01:59,240 --> 00:02:01,400 Speaker 1: the products need it is to link a publisher with 36 00:02:01,440 --> 00:02:04,960 Speaker 1: an advertiser and get an appropriate ad put onto a 37 00:02:05,000 --> 00:02:07,920 Speaker 1: website or connected to a search on the website, that 38 00:02:08,080 --> 00:02:12,480 Speaker 1: it's able really to extract profits out of that chain 39 00:02:12,880 --> 00:02:15,000 Speaker 1: and the prices that ought to be going to the 40 00:02:15,000 --> 00:02:18,440 Speaker 1: publishers and the advertisers. Um. And they're just looking at 41 00:02:18,600 --> 00:02:23,960 Speaker 1: the way that toole supply chain works from publisher to advertiser, 42 00:02:24,560 --> 00:02:30,000 Speaker 1: and how Google might extract sort of let's say, extraordinary, uh, 43 00:02:30,200 --> 00:02:33,640 Speaker 1: super competitive fees out of that supply chain. And they 44 00:02:34,080 --> 00:02:37,200 Speaker 1: don't really make any suggestions with respect to what the 45 00:02:37,240 --> 00:02:40,400 Speaker 1: remedies should be. Um. But but they just show how 46 00:02:40,480 --> 00:02:44,200 Speaker 1: Google has market power and how some of its practices 47 00:02:44,240 --> 00:02:49,480 Speaker 1: could be considered unreasonably exclusionary under our anti trust laws. 48 00:02:49,880 --> 00:02:53,240 Speaker 1: Jen does Google have market power because it's the most 49 00:02:53,320 --> 00:02:57,959 Speaker 1: popular search engine or doesn't have market power because it 50 00:02:58,080 --> 00:03:04,519 Speaker 1: made acquisitions to increase its power? You know, June, It 51 00:03:04,639 --> 00:03:08,320 Speaker 1: is probably a combination of both. Uh. Certainly, a company 52 00:03:08,360 --> 00:03:11,680 Speaker 1: can gain market power by being desirable and again consumers 53 00:03:11,720 --> 00:03:14,160 Speaker 1: like it, and so they gain all the business um, 54 00:03:14,200 --> 00:03:16,960 Speaker 1: and they can gain a lawful monopoly in that way. Um. 55 00:03:17,000 --> 00:03:20,399 Speaker 1: They can also gain market power by acquiring other entities. 56 00:03:20,720 --> 00:03:23,440 Speaker 1: But the issue really is that it's just the market 57 00:03:23,480 --> 00:03:27,640 Speaker 1: power alone isn't enough to violate the laws against illegal monopolization. 58 00:03:28,040 --> 00:03:31,000 Speaker 1: There needs to be market power shown, and that's why 59 00:03:31,040 --> 00:03:33,560 Speaker 1: in this paper they focused on how to show market power. 60 00:03:33,880 --> 00:03:36,440 Speaker 1: But then they need to show that there's been some 61 00:03:36,480 --> 00:03:40,920 Speaker 1: sort of a conduct that can essentially leverages that market power. 62 00:03:41,160 --> 00:03:44,640 Speaker 1: And excludes rivals. There needs to be unreasonable conduct that's 63 00:03:44,680 --> 00:03:48,600 Speaker 1: exclusionary that helps to maintain that market power. That's where 64 00:03:48,600 --> 00:03:51,600 Speaker 1: it starts to cross the line. So what this paper 65 00:03:51,640 --> 00:03:54,160 Speaker 1: did was it talked about the market power that Google 66 00:03:54,200 --> 00:03:57,360 Speaker 1: has with certain ad products, and then some of the 67 00:03:57,440 --> 00:04:01,080 Speaker 1: conducts that might help to maintain that market power, such 68 00:04:01,120 --> 00:04:06,200 Speaker 1: as exclusionary contracts with certain third parties UM, a lack 69 00:04:06,240 --> 00:04:09,520 Speaker 1: of interoperability with some of its functionality that might be 70 00:04:09,560 --> 00:04:12,200 Speaker 1: needed for rivals. It's a way to keep the rivals 71 00:04:12,240 --> 00:04:14,920 Speaker 1: out and to keep companies using their own product and 72 00:04:14,960 --> 00:04:18,279 Speaker 1: maintaining their market power. So it's those two steps, and 73 00:04:18,279 --> 00:04:21,600 Speaker 1: and having that market power by itself isn't necessarily unlawful. 74 00:04:22,360 --> 00:04:28,320 Speaker 1: What has the US been investigating Google on? Well, it's 75 00:04:28,400 --> 00:04:32,200 Speaker 1: likely that the US has been been investigating Google's um 76 00:04:32,400 --> 00:04:35,080 Speaker 1: conduct and activity in an advertising market. And I say 77 00:04:35,080 --> 00:04:38,560 Speaker 1: it's likely because we know that Google has already been 78 00:04:38,560 --> 00:04:42,360 Speaker 1: found to have abused its dominance by the European Commission 79 00:04:42,360 --> 00:04:44,600 Speaker 1: in a couple of different areas, and one of those 80 00:04:44,600 --> 00:04:49,200 Speaker 1: areas is advertising. So it's kind of um handing some suggestions, 81 00:04:49,320 --> 00:04:51,760 Speaker 1: so to speak, to the Department of Justice, which started 82 00:04:51,800 --> 00:04:55,480 Speaker 1: looking at Google after the European Commission had already drawn 83 00:04:55,520 --> 00:04:59,799 Speaker 1: its conclusions. Um Our laws from a nopolization are different 84 00:05:00,080 --> 00:05:03,800 Speaker 1: from the European Commission's rules against the use of dominance, 85 00:05:04,040 --> 00:05:06,760 Speaker 1: but there are a lot of similarities and the same 86 00:05:06,839 --> 00:05:09,839 Speaker 1: kind of conduct can violate laws on both sides of 87 00:05:09,839 --> 00:05:13,320 Speaker 1: the ocean. So if the conduct violated europe lause, there's 88 00:05:13,320 --> 00:05:16,400 Speaker 1: a possibility it also violates US law. And it certainly 89 00:05:16,440 --> 00:05:18,360 Speaker 1: seems like that would have been a good place for 90 00:05:18,400 --> 00:05:21,200 Speaker 1: the Department of Justice to start. It doesn't mean that 91 00:05:21,240 --> 00:05:23,720 Speaker 1: they stopped there, you know, you know, once they issued 92 00:05:23,839 --> 00:05:26,240 Speaker 1: what's called the civil investigative demand, which is like a 93 00:05:26,320 --> 00:05:30,880 Speaker 1: large subpoena. They're now getting into the company's documents, emails, 94 00:05:31,120 --> 00:05:33,599 Speaker 1: text messages, things like that, and they're looking at the 95 00:05:33,680 --> 00:05:37,120 Speaker 1: way they operate and do business and the decisions they make, 96 00:05:37,200 --> 00:05:40,599 Speaker 1: and they could find some other area that Europe didn't 97 00:05:40,600 --> 00:05:44,040 Speaker 1: focus on that they also believe, uh could be an 98 00:05:44,040 --> 00:05:47,640 Speaker 1: example of Google, you know, exercising its dominance in an 99 00:05:47,640 --> 00:05:51,360 Speaker 1: improper manner. So jan they're in the drafting stage right now, 100 00:05:51,400 --> 00:05:54,919 Speaker 1: but doesn't seem likely that they will in fact file 101 00:05:55,000 --> 00:05:58,360 Speaker 1: the lawsuit. Well, it makes it pretty likely that it's 102 00:05:58,360 --> 00:06:00,839 Speaker 1: going to bring a lawsuit, it will have to complaint 103 00:06:01,400 --> 00:06:04,479 Speaker 1: and get itself prepared to go to trial if it 104 00:06:04,520 --> 00:06:07,320 Speaker 1: does believe that the law has been violated. Once that 105 00:06:07,480 --> 00:06:10,680 Speaker 1: complaint is drafted, of course, there could be a settlement. 106 00:06:10,720 --> 00:06:13,479 Speaker 1: I mean, this is what happens in most cases, not 107 00:06:13,680 --> 00:06:16,839 Speaker 1: just when a company is being investigated for violating the 108 00:06:16,880 --> 00:06:19,560 Speaker 1: antitrust laws, but also let's say when a merger is 109 00:06:19,640 --> 00:06:24,040 Speaker 1: being investigated for potentially violating antitrust laws. The Department of 110 00:06:24,080 --> 00:06:27,320 Speaker 1: Justice could conclude, yes, that it does, but then the 111 00:06:27,320 --> 00:06:30,040 Speaker 1: companies can offer a settlement and I can get filed 112 00:06:30,080 --> 00:06:33,800 Speaker 1: along with that complaint or after that complaint. So if 113 00:06:33,839 --> 00:06:37,360 Speaker 1: the Department of Justice does draft a complaint get itself 114 00:06:37,360 --> 00:06:39,800 Speaker 1: prepared to go to trial, there could be a settlement 115 00:06:40,160 --> 00:06:43,000 Speaker 1: before it goes any farther than that, or in fact, 116 00:06:43,040 --> 00:06:45,960 Speaker 1: that complaint could get filed in court and it could 117 00:06:45,960 --> 00:06:49,200 Speaker 1: start litigation. Is it surprising at all that this might 118 00:06:49,240 --> 00:06:52,800 Speaker 1: be happening during the pandemic or do you think that 119 00:06:52,880 --> 00:06:56,159 Speaker 1: most of the work, most of the investigation was done 120 00:06:56,400 --> 00:07:00,360 Speaker 1: well before. Well, I think the investigation was started well before. 121 00:07:00,480 --> 00:07:02,479 Speaker 1: I mean, I mean, this was this was all happening 122 00:07:02,520 --> 00:07:04,960 Speaker 1: and all in the cards and on the way when 123 00:07:04,960 --> 00:07:08,560 Speaker 1: the pandemic pandemic happened, It just happened to occur, I 124 00:07:08,560 --> 00:07:11,560 Speaker 1: think in the middle of this investigation. But the Department 125 00:07:11,560 --> 00:07:14,520 Speaker 1: of Justice and the FTC for that matter, which is 126 00:07:14,680 --> 00:07:17,760 Speaker 1: investigating Facebook, made it clear that their work is continuing, 127 00:07:18,160 --> 00:07:21,800 Speaker 1: maybe from home, you know, and virtually, but it's continuing, 128 00:07:22,080 --> 00:07:24,840 Speaker 1: and that they weren't really dropping anything. Um. And the 129 00:07:24,880 --> 00:07:28,920 Speaker 1: Attorney General, Bill Bard, did stay back in December that 130 00:07:29,080 --> 00:07:31,760 Speaker 1: he had hoped that the Department of Justice would be 131 00:07:31,800 --> 00:07:34,480 Speaker 1: able to reach some sort of a decision with respect 132 00:07:34,560 --> 00:07:36,960 Speaker 1: to what was going to happen with its investigation of 133 00:07:37,040 --> 00:07:40,080 Speaker 1: Google by this year, he had said, by this summer, 134 00:07:40,120 --> 00:07:43,800 Speaker 1: and maybe that possibly could get pushed back slightly due 135 00:07:43,840 --> 00:07:47,000 Speaker 1: to delays from the pandemic. But it's really been business 136 00:07:47,000 --> 00:07:50,800 Speaker 1: as usual, UM. With respect to the ongoing investigations that 137 00:07:50,920 --> 00:07:53,800 Speaker 1: both the SEC and the Department of Justice, so the 138 00:07:53,840 --> 00:07:59,560 Speaker 1: state attorneys general are also investigating Google. Is their investigation different? 139 00:07:59,760 --> 00:08:04,440 Speaker 1: Is it parallel or is it different? It seems like 140 00:08:04,600 --> 00:08:07,600 Speaker 1: from what's been reported that so far it's it's parallel 141 00:08:07,720 --> 00:08:10,920 Speaker 1: as well as combined. UM. It seems that there is 142 00:08:10,960 --> 00:08:14,360 Speaker 1: some sharing of information and documents between the state attorneys 143 00:08:14,360 --> 00:08:17,760 Speaker 1: general and the Department of Justice, and that the the 144 00:08:17,800 --> 00:08:20,560 Speaker 1: state attorneys general are also sort of looking on their 145 00:08:20,560 --> 00:08:24,400 Speaker 1: own and I think that's pretty typical and investigations that 146 00:08:24,440 --> 00:08:29,920 Speaker 1: are really big, and like this Google investigation, I suspect 147 00:08:29,960 --> 00:08:33,600 Speaker 1: at the end it'll probably all get combined and come together. 148 00:08:34,080 --> 00:08:36,880 Speaker 1: Um that the if the Department of Justice files the lawsuits, 149 00:08:36,880 --> 00:08:39,280 Speaker 1: that the states will join into that lawsuit. Now they 150 00:08:39,280 --> 00:08:42,640 Speaker 1: can also file their own independently if they want to 151 00:08:43,760 --> 00:08:46,120 Speaker 1: go on different grounds or don't agree with the Department 152 00:08:46,120 --> 00:08:48,040 Speaker 1: of Justice, but I think it more likely that they'll 153 00:08:48,080 --> 00:08:50,880 Speaker 1: probably all end up coming together in the end. The 154 00:08:50,960 --> 00:08:56,439 Speaker 1: FTC closed in investigation in into Google. Is there more 155 00:08:56,559 --> 00:09:00,480 Speaker 1: evidence now or is it a change in administer rations. 156 00:09:01,559 --> 00:09:03,720 Speaker 1: I don't think that it's a matter of more evidence. 157 00:09:03,760 --> 00:09:07,040 Speaker 1: I think that was actually a pretty exhaustive investigation back then. 158 00:09:07,120 --> 00:09:09,000 Speaker 1: But really what it is is a change in that 159 00:09:09,240 --> 00:09:11,559 Speaker 1: It could be a change in many things. It could 160 00:09:11,600 --> 00:09:13,920 Speaker 1: be a change in the competitive dynamic, a change in 161 00:09:13,960 --> 00:09:17,960 Speaker 1: the industries with respected different companies having entered or exited, 162 00:09:18,320 --> 00:09:21,880 Speaker 1: or perhaps acquisitions have small ocquisitions having been made since then. 163 00:09:22,240 --> 00:09:25,040 Speaker 1: And in addition, it could be a change in conduct. 164 00:09:25,240 --> 00:09:28,160 Speaker 1: You know, at that time they closed that investigation and 165 00:09:28,200 --> 00:09:33,080 Speaker 1: there wasn't really any formal settlement with Google that require 166 00:09:33,120 --> 00:09:35,680 Speaker 1: them in any legal sense to behave in a certain way. 167 00:09:36,240 --> 00:09:40,280 Speaker 1: So Google has pretty much been free to behave and 168 00:09:40,360 --> 00:09:42,360 Speaker 1: engage in its business in the way it's wanted to 169 00:09:42,480 --> 00:09:45,560 Speaker 1: since then. And so it may be doing things differently 170 00:09:45,600 --> 00:09:49,080 Speaker 1: now that do violate the law that at that time 171 00:09:49,120 --> 00:09:52,240 Speaker 1: they simply weren't doing. For instance, June, A lot of 172 00:09:52,240 --> 00:09:55,760 Speaker 1: times exclusive exclusive agreements can violate the law. You know, 173 00:09:55,840 --> 00:09:58,760 Speaker 1: if if a company with the dominant position or that's 174 00:09:58,840 --> 00:10:02,719 Speaker 1: vertically integrated, it say, has access to some input that 175 00:10:02,800 --> 00:10:07,800 Speaker 1: it's it's competitors need um and it it it or 176 00:10:08,600 --> 00:10:12,439 Speaker 1: it exclusively ties up an input that its competitors need, 177 00:10:12,559 --> 00:10:16,400 Speaker 1: let's say, with exclusive agreements, and now these competitors simply 178 00:10:16,440 --> 00:10:18,920 Speaker 1: can't operate because they need access and they can't get 179 00:10:18,960 --> 00:10:22,240 Speaker 1: access because there's exclusivity just for let's say Google. You know, 180 00:10:22,440 --> 00:10:25,200 Speaker 1: this can violate the law. And it's possible that Google 181 00:10:25,280 --> 00:10:27,520 Speaker 1: has agreements like this that they didn't have back in 182 00:10:27,559 --> 00:10:31,880 Speaker 1: two thousand thirteen. How significant would it be if the 183 00:10:32,000 --> 00:10:36,640 Speaker 1: Justice Department decides to file a case against Google well, 184 00:10:36,679 --> 00:10:40,240 Speaker 1: I think it's significant because, you know, it raises the 185 00:10:40,280 --> 00:10:44,800 Speaker 1: prospect of potentially requiring a breakup of the company. Now 186 00:10:44,840 --> 00:10:48,280 Speaker 1: I think that that's unlikely, but it's not outside the 187 00:10:48,320 --> 00:10:51,120 Speaker 1: balance of possibilities that if the d o J does 188 00:10:51,160 --> 00:10:53,839 Speaker 1: feel it needs to file a suit, UH, it has 189 00:10:53,880 --> 00:10:56,440 Speaker 1: to seek a remedy, and that remedy could be something 190 00:10:56,480 --> 00:11:01,120 Speaker 1: that impacts Google's business significantly, UM, be it a breakup 191 00:11:01,360 --> 00:11:05,440 Speaker 1: or restricting the way it does its business. UM. You know, 192 00:11:05,480 --> 00:11:07,480 Speaker 1: the d o J did try to break up Microsoft 193 00:11:07,559 --> 00:11:10,480 Speaker 1: many years ago and they were unsuccessful, but they came close. 194 00:11:11,679 --> 00:11:15,400 Speaker 1: And you know, both the Joe Simons from Sederal Trade 195 00:11:15,440 --> 00:11:19,560 Speaker 1: Commission and UM the antitrust headed Department of Justice has 196 00:11:19,600 --> 00:11:21,760 Speaker 1: said that they're all sorts of remedies they could seek, 197 00:11:22,080 --> 00:11:24,480 Speaker 1: including breakup, and that they're not ruling that out. So 198 00:11:24,520 --> 00:11:27,679 Speaker 1: it certainly raises the risks for Google if the d 199 00:11:27,760 --> 00:11:29,960 Speaker 1: o J susan the company has to go to court. 200 00:11:30,280 --> 00:11:34,319 Speaker 1: Has Google made any acquisitions in the last few years 201 00:11:34,320 --> 00:11:37,000 Speaker 1: that they could divest you know, I don't know about 202 00:11:37,000 --> 00:11:40,079 Speaker 1: the time frame and and specifically the last three years, 203 00:11:40,080 --> 00:11:42,600 Speaker 1: but they have made acquisitions over let's say, the last 204 00:11:42,600 --> 00:11:46,440 Speaker 1: ten years in this ad in I'll call it the 205 00:11:46,480 --> 00:11:49,720 Speaker 1: ad intermediary space. You know, these all of these sort 206 00:11:49,720 --> 00:11:52,320 Speaker 1: of business to business products that are needed to connect 207 00:11:52,360 --> 00:11:55,959 Speaker 1: a publisher with an advertiser. One of those acquisitions, for instance, 208 00:11:56,040 --> 00:11:59,559 Speaker 1: was double click um, which is one of these ad products. 209 00:11:59,840 --> 00:12:05,240 Speaker 1: And it is certainly possible that one of the remedies 210 00:12:05,240 --> 00:12:08,440 Speaker 1: the Department of Justice could seek would be the unwinding 211 00:12:08,920 --> 00:12:12,920 Speaker 1: of the acquisition of one of these products needed along 212 00:12:12,960 --> 00:12:17,640 Speaker 1: that supply chain. Are the House committees still investigating Google 213 00:12:17,800 --> 00:12:22,160 Speaker 1: and the other tech companies. Yes, they are, and they 214 00:12:22,240 --> 00:12:25,640 Speaker 1: had said that they had hoped to publish their findings 215 00:12:25,679 --> 00:12:29,640 Speaker 1: I believe fairly soon, like even this month or next month, 216 00:12:29,720 --> 00:12:32,920 Speaker 1: but that has been delayed due to the pandemic. Now, 217 00:12:33,000 --> 00:12:35,920 Speaker 1: you know, the House Committee investigation, I think ultimately has 218 00:12:36,040 --> 00:12:38,319 Speaker 1: a bit of a different role or goal in mind 219 00:12:38,600 --> 00:12:42,160 Speaker 1: than the Department of Justice investigation. I think what they're 220 00:12:42,200 --> 00:12:45,120 Speaker 1: looking at is whether or not there might be some 221 00:12:45,280 --> 00:12:49,920 Speaker 1: new legislation or amendments to current legislation needed to deal 222 00:12:50,040 --> 00:12:53,720 Speaker 1: with policing these big tech platforms and sort of this 223 00:12:53,840 --> 00:12:56,960 Speaker 1: new digital economy that we live in. I think they've 224 00:12:57,040 --> 00:12:59,720 Speaker 1: questioned whether or not the current antitrust laws that we 225 00:12:59,760 --> 00:13:02,679 Speaker 1: have and the precedent that's been built up over the years, 226 00:13:02,800 --> 00:13:06,679 Speaker 1: it's sufficient to tame the kind of behavior that the 227 00:13:06,800 --> 00:13:09,280 Speaker 1: d o J may be looking at. So their goal 228 00:13:09,400 --> 00:13:12,520 Speaker 1: is is more about the legislative goal than an enforcement coal. 229 00:13:12,800 --> 00:13:17,520 Speaker 1: Thanks Jen, that's Bloomberg Intelligence Senior Litigation analyst Jennifer Ree. 230 00:13:17,800 --> 00:13:21,240 Speaker 1: Bloomberg Law editor Jordan Rubin joins me now to discuss 231 00:13:21,320 --> 00:13:25,400 Speaker 1: those historic live Supreme Court arguments that wrapped up last week. 232 00:13:26,040 --> 00:13:28,360 Speaker 1: I would say overall it went very well, I think, 233 00:13:28,520 --> 00:13:31,880 Speaker 1: possibly even better than people expected it to go. Obviously, 234 00:13:31,920 --> 00:13:36,200 Speaker 1: there were probably one notable instance that got some people's 235 00:13:36,240 --> 00:13:40,360 Speaker 1: intention of what sounded like a toilet flushing, But besides that, 236 00:13:40,440 --> 00:13:43,240 Speaker 1: I think, you know, really the whole session went pretty well. 237 00:13:43,520 --> 00:13:45,880 Speaker 1: The only problem that seemed to occur over and over 238 00:13:46,040 --> 00:13:49,480 Speaker 1: was the justices forgetting to un mute their mute button. 239 00:13:49,559 --> 00:13:53,199 Speaker 1: Some of the justices exactly, so they're sort of experiencing 240 00:13:53,240 --> 00:13:55,360 Speaker 1: the same working from home issues that all of us 241 00:13:55,400 --> 00:13:58,400 Speaker 1: are working on conference calls, people on muting. So kind 242 00:13:58,440 --> 00:14:00,640 Speaker 1: of stuff is far from the core us just happens 243 00:14:00,679 --> 00:14:02,439 Speaker 1: to be in a Supreme Court argument. But on the 244 00:14:02,480 --> 00:14:05,000 Speaker 1: whole that didn't really detract too much from the substance 245 00:14:05,040 --> 00:14:07,599 Speaker 1: of what was going on, and really, given all that 246 00:14:07,760 --> 00:14:10,320 Speaker 1: could have gone wrong, it went pretty well. So you 247 00:14:10,360 --> 00:14:13,960 Speaker 1: mentioned the one thing, the flush heard around the country 248 00:14:14,800 --> 00:14:18,760 Speaker 1: in the middle of an argument, and the justices didn't 249 00:14:19,000 --> 00:14:22,040 Speaker 1: say anything about it. They just kept going. It's been 250 00:14:22,080 --> 00:14:25,880 Speaker 1: taken out of the permanent record, it's been taken out 251 00:14:25,880 --> 00:14:29,840 Speaker 1: of the audio files as well as the transcript. Do 252 00:14:29,960 --> 00:14:34,000 Speaker 1: we know any more about who did that? Well, as 253 00:14:34,040 --> 00:14:37,600 Speaker 1: you can imagine, the Supreme Court isn't coming forward saying 254 00:14:37,640 --> 00:14:41,600 Speaker 1: anyone in particular is responsible for the alleged flush. The 255 00:14:41,640 --> 00:14:44,920 Speaker 1: flush in question. There's some speculation perhaps that it could 256 00:14:44,920 --> 00:14:48,160 Speaker 1: have been Justice Brier, given the timing of it and 257 00:14:48,200 --> 00:14:51,440 Speaker 1: how he was interacting during the rest of the argument, 258 00:14:51,480 --> 00:14:54,920 Speaker 1: But we really don't know, and it's unclear whether there's 259 00:14:54,960 --> 00:14:59,560 Speaker 1: going to be a serious congressional investigation into this uh incident. 260 00:15:00,320 --> 00:15:02,480 Speaker 1: You know, there's some speculation. I think we look back 261 00:15:02,520 --> 00:15:05,200 Speaker 1: on it kind of just as a funny thing that happened, 262 00:15:05,200 --> 00:15:08,160 Speaker 1: showing that, you know, the justices are are human too, 263 00:15:08,160 --> 00:15:10,200 Speaker 1: and if that's the worst thing that came out of 264 00:15:10,200 --> 00:15:12,840 Speaker 1: this argument, I would say that kind of just underscores 265 00:15:12,840 --> 00:15:15,320 Speaker 1: how much of a win the whole process was. So 266 00:15:15,400 --> 00:15:18,120 Speaker 1: let's talk about some of the first Well, the first 267 00:15:18,160 --> 00:15:21,960 Speaker 1: time we've heard Justice Clarence Thomas speak in ten arguments 268 00:15:21,960 --> 00:15:24,800 Speaker 1: in a row. Oh yeah, that was certainly something that 269 00:15:25,200 --> 00:15:28,840 Speaker 1: and certainly not everyone was expecting. The last time Justice 270 00:15:28,880 --> 00:15:32,520 Speaker 1: Thomas asked questions that an argument was last term, and 271 00:15:32,560 --> 00:15:35,360 Speaker 1: before that, it was many years before that, and so 272 00:15:35,600 --> 00:15:39,640 Speaker 1: there was some speculation perhaps that because Justice Thomas's reasoning 273 00:15:39,680 --> 00:15:42,360 Speaker 1: that he said in not questioning during the arguments is 274 00:15:42,400 --> 00:15:44,640 Speaker 1: that he doesn't want to take away time from the 275 00:15:44,720 --> 00:15:47,960 Speaker 1: lawyers making their arguments. But one notable thing about the 276 00:15:48,000 --> 00:15:50,840 Speaker 1: way that the Court carried out these arguments was that 277 00:15:50,840 --> 00:15:54,280 Speaker 1: the justices had turned to question in order. So really 278 00:15:54,320 --> 00:15:56,400 Speaker 1: there was a set time for Justice Thomas and the 279 00:15:56,400 --> 00:15:59,160 Speaker 1: rest of the justices to ask questions. And so it 280 00:15:59,200 --> 00:16:02,080 Speaker 1: seems that in that setting he was more comfortable and 281 00:16:02,120 --> 00:16:05,440 Speaker 1: perhaps didn't feel that he was detracting from the rest 282 00:16:05,480 --> 00:16:08,080 Speaker 1: of the argument as opposed to just participating it, which 283 00:16:08,080 --> 00:16:11,240 Speaker 1: he which he did, And the justices piggybacks off of 284 00:16:11,280 --> 00:16:14,560 Speaker 1: his questions, saying, you know, following up on Justice Thomas's questions. 285 00:16:14,560 --> 00:16:17,360 Speaker 1: So from their view, it seemed anyway that they thought 286 00:16:17,360 --> 00:16:20,240 Speaker 1: of the questions he was asking, we're good ones. He 287 00:16:20,400 --> 00:16:24,240 Speaker 1: also had what I consider one of the most memorable moments. 288 00:16:24,560 --> 00:16:27,320 Speaker 1: Maybe that's because I'm a fan of the Lord of 289 00:16:27,320 --> 00:16:31,160 Speaker 1: the Rings. He referred to Frodo Baggins in one of 290 00:16:31,200 --> 00:16:35,880 Speaker 1: his questions. Yeah, certainly another thing that you know, if 291 00:16:35,920 --> 00:16:40,080 Speaker 1: you had that one on your coronavirus pandemic Supreme Court argument, 292 00:16:40,120 --> 00:16:42,920 Speaker 1: bingo card, you can cross that one off. To Justice 293 00:16:42,960 --> 00:16:46,440 Speaker 1: Thomas referencing Frodo Baggins during the Supreme Court argument. That 294 00:16:46,440 --> 00:16:49,840 Speaker 1: one came in the arguments over the electoral college, and 295 00:16:49,840 --> 00:16:53,080 Speaker 1: that wound up spunning out all these hypotheticals of could 296 00:16:53,120 --> 00:16:55,880 Speaker 1: you write in a candidate or as an elector could 297 00:16:55,880 --> 00:16:59,200 Speaker 1: you wind up voting for Frodo Baggins over the person 298 00:16:59,240 --> 00:17:02,440 Speaker 1: who your state actually essentially told you to vote for. 299 00:17:02,560 --> 00:17:05,880 Speaker 1: And that was a fun hypothetical that the Justice Thomas 300 00:17:06,200 --> 00:17:08,919 Speaker 1: came up with. So certainly by the end of the 301 00:17:08,960 --> 00:17:11,960 Speaker 1: session when that argument took place, he was feeling comfortable 302 00:17:12,040 --> 00:17:13,840 Speaker 1: enough to have a little fun with it. It sounds 303 00:17:13,880 --> 00:17:17,520 Speaker 1: like so the first case that Justice has heard, which 304 00:17:17,560 --> 00:17:21,840 Speaker 1: involved Booking dot Com and a trademark dispute that featured 305 00:17:21,880 --> 00:17:25,800 Speaker 1: two women attorneys. Was that a first for the Supreme Court? 306 00:17:26,359 --> 00:17:28,720 Speaker 1: It wasn't the first ever for the Supreme Court, but 307 00:17:28,760 --> 00:17:32,640 Speaker 1: it's certainly a rarity. And if you were a uh, 308 00:17:32,680 --> 00:17:35,040 Speaker 1: someone who doesn't follow the Supreme Court regularly and you 309 00:17:35,080 --> 00:17:37,800 Speaker 1: tuned in for that argument, certainly you would be a 310 00:17:37,800 --> 00:17:42,280 Speaker 1: bit misled into thinking that that's the normal representation of 311 00:17:42,520 --> 00:17:46,000 Speaker 1: gender at the court. It's certainly Supreme Court arguments are 312 00:17:46,080 --> 00:17:49,679 Speaker 1: a male dominated phenomenon. But you had the first argument 313 00:17:49,760 --> 00:17:53,680 Speaker 1: kicking off in this historic session of two female advocates 314 00:17:53,800 --> 00:17:57,280 Speaker 1: Erica Ross from the Solicitor General's Office representing the federal 315 00:17:57,320 --> 00:18:01,240 Speaker 1: government and veteran Supreme Court at to get Lisa Black 316 00:18:01,880 --> 00:18:05,720 Speaker 1: arguing for the company. And so you had really two 317 00:18:05,760 --> 00:18:09,480 Speaker 1: great advocates to female advocates launching off this historic session, 318 00:18:09,880 --> 00:18:12,920 Speaker 1: and they certainly did very well as the test subject, 319 00:18:13,000 --> 00:18:15,919 Speaker 1: so to speak, for this new process. Any other first 320 00:18:15,960 --> 00:18:18,359 Speaker 1: that you can think of Jordan's, well, there were some 321 00:18:18,520 --> 00:18:21,840 Speaker 1: other advocates who are making their High Court debut interesting 322 00:18:21,920 --> 00:18:26,200 Speaker 1: enough during this session. And you know, certainly your first 323 00:18:26,200 --> 00:18:29,399 Speaker 1: Supreme Court argument is something that you'll remember, but certainly 324 00:18:29,440 --> 00:18:32,880 Speaker 1: all the more during this pandemic, For example, in the 325 00:18:32,960 --> 00:18:37,919 Speaker 1: mcgurd against Oklahoma case. Uh, the Oklahoma State Solicitor General 326 00:18:37,960 --> 00:18:41,000 Speaker 1: Mith and Monston Connie was making his High Court debut 327 00:18:41,480 --> 00:18:44,040 Speaker 1: in that elector's case that we were talking about, the 328 00:18:44,160 --> 00:18:46,560 Speaker 1: Frodo bag Ins case, let's call it. You had an 329 00:18:46,600 --> 00:18:49,840 Speaker 1: attorney Jason Harrow making his High Court debut in the 330 00:18:49,840 --> 00:18:52,680 Speaker 1: Trump's Tobcoena cases. You had Carry Dunne from the Manhattan 331 00:18:52,720 --> 00:18:56,040 Speaker 1: DA's office making a debut as well. So certainly it 332 00:18:56,080 --> 00:18:57,800 Speaker 1: was first for them, and I'm sure it made it 333 00:18:58,119 --> 00:19:01,359 Speaker 1: all the more interesting having that being one's first Supreme 334 00:19:01,400 --> 00:19:04,960 Speaker 1: Court argumists. So, Jordan's which case did you find the 335 00:19:05,040 --> 00:19:11,600 Speaker 1: most exciting? I choose the arguments over Trump's financial records. Well, certainly, 336 00:19:12,240 --> 00:19:14,199 Speaker 1: you know you can't go wrong with that. These are 337 00:19:14,280 --> 00:19:17,920 Speaker 1: historic cases, it's ones. These are arguments certainly that will 338 00:19:17,960 --> 00:19:21,000 Speaker 1: be remembered for a long time. Going back to looking 339 00:19:21,000 --> 00:19:23,960 Speaker 1: at cases for example, in the Nixon tapes case, this 340 00:19:24,080 --> 00:19:27,280 Speaker 1: is certainly a case in line with that precedent, and 341 00:19:27,400 --> 00:19:31,359 Speaker 1: so certainly just the fact of the historic issue before 342 00:19:31,400 --> 00:19:35,359 Speaker 1: the court is exciting and its own right. Um, I'll 343 00:19:35,440 --> 00:19:38,600 Speaker 1: go ahead and pick on a different case that maybe 344 00:19:38,680 --> 00:19:42,560 Speaker 1: is a little lesser known and perhaps lesser watched out 345 00:19:42,560 --> 00:19:44,080 Speaker 1: of the rest of the ones in this session. And 346 00:19:44,119 --> 00:19:46,920 Speaker 1: that's the one I referenced a little earlier called McGirt 347 00:19:46,960 --> 00:19:50,320 Speaker 1: against Oklahoma, And that's the case that we've talked about 348 00:19:50,359 --> 00:19:54,960 Speaker 1: about whether essentially the eastern half of Oklahoma is technically 349 00:19:54,960 --> 00:19:58,280 Speaker 1: sitting on Indian reservation land. And that's the case that 350 00:19:58,280 --> 00:20:01,959 Speaker 1: has a lot of implications for criminal jurisdiction and civil 351 00:20:02,000 --> 00:20:06,000 Speaker 1: and tax and regulatory implications. And there were four lawyers 352 00:20:06,080 --> 00:20:09,320 Speaker 1: arguing in that case, as I mentioned, Solicitor General Monston 353 00:20:09,359 --> 00:20:11,919 Speaker 1: Honey being one of those lawyers. And that was a 354 00:20:11,960 --> 00:20:15,960 Speaker 1: really exciting argument in one with very interesting implications that 355 00:20:16,000 --> 00:20:19,040 Speaker 1: I'll be very interested to see how the justices sort 356 00:20:19,040 --> 00:20:21,600 Speaker 1: that case out. And what would you say was the 357 00:20:21,680 --> 00:20:25,960 Speaker 1: dullest argument, the dullest argument? Oh wow, you know you can't. 358 00:20:26,119 --> 00:20:28,199 Speaker 1: You can't say that about your children, right, you know 359 00:20:28,280 --> 00:20:33,560 Speaker 1: you have to uh, the dullest argument, Well, probably, you know, 360 00:20:33,640 --> 00:20:38,760 Speaker 1: aside from the the flush in a case involving robocalls, 361 00:20:38,840 --> 00:20:43,760 Speaker 1: that probably was not the most exciting issue. Maybe, you know, 362 00:20:43,960 --> 00:20:46,320 Speaker 1: trying to get more attention to the issue. Maybe that's 363 00:20:46,320 --> 00:20:48,600 Speaker 1: why someone did the flush. I don't know, maybe that's 364 00:20:48,640 --> 00:20:51,199 Speaker 1: the new theory that'll be out there, but that was 365 00:20:51,280 --> 00:20:54,879 Speaker 1: probably on the lesser watch spectrum of all these cases. 366 00:20:54,920 --> 00:20:57,000 Speaker 1: It did seem as though there was a mix of 367 00:20:57,119 --> 00:21:00,920 Speaker 1: kind of high profile cases and lower profiles cases that 368 00:21:01,040 --> 00:21:04,280 Speaker 1: the Court shows. It wasn't immediately clear in terms of 369 00:21:04,359 --> 00:21:06,560 Speaker 1: every case that was put on for this session why 370 00:21:06,720 --> 00:21:09,600 Speaker 1: the Supreme Court put it on for this session. Obviously, 371 00:21:09,720 --> 00:21:12,879 Speaker 1: of something like the Trump's subpoena cases and the so 372 00:21:13,000 --> 00:21:17,080 Speaker 1: called faithless electors cases about the Electoral College, obviously there's 373 00:21:18,080 --> 00:21:21,760 Speaker 1: election implications in both of those cases and they're very important, 374 00:21:21,800 --> 00:21:24,640 Speaker 1: So it's clear why the Court picked something like that. 375 00:21:24,720 --> 00:21:27,480 Speaker 1: But for example, you know, the trademark case that we 376 00:21:27,520 --> 00:21:30,199 Speaker 1: talked about, they kicked off the session. In terms of 377 00:21:30,200 --> 00:21:33,000 Speaker 1: the significance of that case relative to some others that 378 00:21:33,000 --> 00:21:36,040 Speaker 1: were pushed off the next term, it's not immediately clear, 379 00:21:36,080 --> 00:21:38,600 Speaker 1: but it did give a nice kind of mix of 380 00:21:38,720 --> 00:21:42,000 Speaker 1: different types of issues and cases to have throughout the session. 381 00:21:42,400 --> 00:21:45,680 Speaker 1: You know, I would pick the trademark case as the dullest, 382 00:21:46,480 --> 00:21:49,280 Speaker 1: and I think they picked it first because they wanted 383 00:21:49,359 --> 00:21:52,439 Speaker 1: something that was going to be you know, lawyers who 384 00:21:52,520 --> 00:21:55,520 Speaker 1: knew what they were doing, and a topic that was 385 00:21:55,920 --> 00:21:59,720 Speaker 1: pretty dull it is, I think so, but it's also 386 00:21:59,760 --> 00:22:02,680 Speaker 1: one that was I think somewhat accessible. You know, whether 387 00:22:02,760 --> 00:22:05,879 Speaker 1: you can trade more this generic brand and so, you know, 388 00:22:06,000 --> 00:22:09,240 Speaker 1: certainly not. You know, they're they're complicated aspects of every 389 00:22:09,240 --> 00:22:12,080 Speaker 1: Supreme Court case, but for people who are turning into 390 00:22:12,080 --> 00:22:15,240 Speaker 1: the first one, it had some fun hypotheticals in that 391 00:22:15,320 --> 00:22:18,840 Speaker 1: case too, and so it was relatively accessible for a case. Also, 392 00:22:19,280 --> 00:22:22,320 Speaker 1: there were only two lawyers arguing in that case, and 393 00:22:22,400 --> 00:22:24,480 Speaker 1: in the first two days of the session, there was 394 00:22:24,520 --> 00:22:27,120 Speaker 1: only one case on for each session, So it did 395 00:22:27,160 --> 00:22:30,160 Speaker 1: seem like the justices wanted to focus on just maybe 396 00:22:30,200 --> 00:22:32,720 Speaker 1: one case each day to kind of roll out this 397 00:22:32,800 --> 00:22:35,440 Speaker 1: new platform, to see how it went, and not start 398 00:22:35,480 --> 00:22:38,639 Speaker 1: off with these high level four lawyer arguments like we 399 00:22:38,680 --> 00:22:41,119 Speaker 1: saw in the second week of the session. So at 400 00:22:41,160 --> 00:22:45,040 Speaker 1: the beginning of these arguments, Chief Justice John Roberts was 401 00:22:45,119 --> 00:22:48,320 Speaker 1: keeping things moving, he was cutting some people off so 402 00:22:48,359 --> 00:22:50,800 Speaker 1: that you can move to the next justice. But the 403 00:22:50,920 --> 00:22:54,359 Speaker 1: argument seemed to get longer and longer as the weeks 404 00:22:54,359 --> 00:22:57,120 Speaker 1: went on. Certainly, some of the arguments did go over 405 00:22:57,160 --> 00:22:59,919 Speaker 1: the one hour allotted time, and you know, you want 406 00:23:00,040 --> 00:23:02,840 Speaker 1: under why does an argument just have to be one hour. 407 00:23:03,200 --> 00:23:06,520 Speaker 1: Certainly we're all seeing in the virtual meetings that we're 408 00:23:06,560 --> 00:23:08,879 Speaker 1: having and working from home that just the fact of 409 00:23:09,000 --> 00:23:11,560 Speaker 1: using this technology can make things go a little longer 410 00:23:11,600 --> 00:23:14,760 Speaker 1: than they otherwise would. And so, just as an other 411 00:23:14,800 --> 00:23:16,960 Speaker 1: aspects of life, I think the Supreme Court is kind 412 00:23:16,960 --> 00:23:19,200 Speaker 1: of just in that mess with the rest of us 413 00:23:19,240 --> 00:23:22,840 Speaker 1: of technology up ending things. And so maybe an argument 414 00:23:22,840 --> 00:23:25,119 Speaker 1: did go for about a half hour longer, But you know, 415 00:23:25,200 --> 00:23:28,200 Speaker 1: these are important cases, and so I think that if 416 00:23:28,200 --> 00:23:30,920 Speaker 1: the justices need a little more time, another half hour 417 00:23:31,000 --> 00:23:34,159 Speaker 1: to sort out something like the presidential power in the 418 00:23:34,160 --> 00:23:36,800 Speaker 1: Trump's Satoina cases, you know, I think we can afford 419 00:23:36,880 --> 00:23:39,320 Speaker 1: to give them that time, even if the Chief Justice 420 00:23:39,320 --> 00:23:42,040 Speaker 1: maybe wished that some of the arguments moved along a 421 00:23:42,080 --> 00:23:46,200 Speaker 1: little more briskly. Good point Jordan's you listen to these 422 00:23:46,280 --> 00:23:49,080 Speaker 1: arguments all the time in person a lot of the time. 423 00:23:49,520 --> 00:23:53,320 Speaker 1: Did you get a sense of the justice is personalities 424 00:23:53,480 --> 00:23:57,680 Speaker 1: from these ten arguments? You know? I think you still did? 425 00:23:57,840 --> 00:24:00,720 Speaker 1: You have? You know, Justice Brier, who's always a lively 426 00:24:00,800 --> 00:24:04,639 Speaker 1: questionnaire and he spins out all these long hypotheticals that 427 00:24:04,720 --> 00:24:08,200 Speaker 1: take up pages of the Supreme Courts transcripts. He didn't 428 00:24:08,200 --> 00:24:11,240 Speaker 1: necessarily speak for as long as he usually does, but 429 00:24:11,760 --> 00:24:14,119 Speaker 1: just the fact that he's jumping into the argument and 430 00:24:14,240 --> 00:24:17,280 Speaker 1: saying good morning, which not every justice, then you could 431 00:24:17,280 --> 00:24:19,040 Speaker 1: tell he was kind of just happy to be there, 432 00:24:19,600 --> 00:24:22,119 Speaker 1: whether or not he was the alleged flusher in this 433 00:24:22,200 --> 00:24:25,480 Speaker 1: robot call case. He made a robocall joke about how 434 00:24:25,480 --> 00:24:27,560 Speaker 1: he had an un muting issue or some kind of 435 00:24:27,560 --> 00:24:30,280 Speaker 1: phone issue during that argument. Now he had to go, 436 00:24:30,400 --> 00:24:33,480 Speaker 1: and so he wasn't immediately available when the Chief called 437 00:24:33,480 --> 00:24:35,320 Speaker 1: on him, and he made a joke about, oh, I 438 00:24:35,359 --> 00:24:38,359 Speaker 1: wasn't getting a robocall or something of that nature. So 439 00:24:38,440 --> 00:24:42,320 Speaker 1: you had the justices personalities shining through. I think you 440 00:24:42,320 --> 00:24:45,399 Speaker 1: have someone who Justice bry Or, you have him shining 441 00:24:45,480 --> 00:24:48,400 Speaker 1: through anyway, And just as you mentioned the Chief kind 442 00:24:48,400 --> 00:24:51,399 Speaker 1: of trying to keep things moving and orderly to some extent, 443 00:24:51,760 --> 00:24:54,359 Speaker 1: that's his personality shining through. And so I think the 444 00:24:54,400 --> 00:24:57,520 Speaker 1: answer is yes, maybe not to the extent that some 445 00:24:57,600 --> 00:25:00,399 Speaker 1: of the justices might have wanted, But if you were 446 00:25:00,440 --> 00:25:02,320 Speaker 1: to put the question to them, they would say, you know, 447 00:25:02,400 --> 00:25:05,280 Speaker 1: it's just about kind of figuring out the issue, not 448 00:25:05,400 --> 00:25:08,320 Speaker 1: so much about their their personalities. But I do think 449 00:25:08,560 --> 00:25:11,520 Speaker 1: even someone who has never turned into a Supreme Court 450 00:25:11,560 --> 00:25:14,360 Speaker 1: argument before. Did get a sense of really the serious 451 00:25:14,400 --> 00:25:18,160 Speaker 1: business that the Court undertakes on a daily basis. And 452 00:25:18,280 --> 00:25:21,639 Speaker 1: speaking of serious business, it seemed to me that Justice 453 00:25:21,720 --> 00:25:28,480 Speaker 1: Alito was consistently the most no nonsense, no frills question 454 00:25:28,560 --> 00:25:31,600 Speaker 1: or among the justices. Yeah, I think that there. I 455 00:25:31,600 --> 00:25:33,840 Speaker 1: think that that's right. Uh. You know, I mentioned Justice 456 00:25:33,840 --> 00:25:36,200 Speaker 1: Brier and some of the other justices they would start 457 00:25:36,200 --> 00:25:38,879 Speaker 1: by saying good morning. Certainly that's not a requirement. I 458 00:25:38,880 --> 00:25:41,960 Speaker 1: don't recall Justice Alito ever starting that way. Not that 459 00:25:42,040 --> 00:25:44,560 Speaker 1: he was the only one, but he was ready to 460 00:25:45,000 --> 00:25:48,080 Speaker 1: get down to business. He's kind of a no nonsense guy. 461 00:25:48,200 --> 00:25:50,840 Speaker 1: And so going back to your previous question, I think 462 00:25:50,920 --> 00:25:53,520 Speaker 1: his personality shown through in in that way as well. 463 00:25:53,560 --> 00:25:54,960 Speaker 1: So the more I think about it, I really do 464 00:25:55,040 --> 00:25:57,639 Speaker 1: think that the country did get a look or a 465 00:25:58,000 --> 00:26:00,960 Speaker 1: liston anyway at the justices. I think you also got 466 00:26:00,960 --> 00:26:05,360 Speaker 1: a sense of what an attorney who has argued so 467 00:26:05,400 --> 00:26:09,119 Speaker 1: many times before the court, how their arguments go so 468 00:26:09,280 --> 00:26:11,399 Speaker 1: much smoother, and there's a sort of a sense of 469 00:26:11,440 --> 00:26:15,800 Speaker 1: respect from the justice, for example a Paul Clement. Oh, 470 00:26:15,840 --> 00:26:18,800 Speaker 1: for sure, you could definitely tell all the work that 471 00:26:18,880 --> 00:26:21,919 Speaker 1: goes into these arguments and the respects that all of 472 00:26:21,960 --> 00:26:25,440 Speaker 1: these lawyers have, and listeners really did get to tune 473 00:26:25,440 --> 00:26:28,639 Speaker 1: into some of these great advocates really from the start. 474 00:26:28,680 --> 00:26:32,000 Speaker 1: As we mentioned, uh, Lisa Blad is a very well 475 00:26:32,040 --> 00:26:35,479 Speaker 1: respected in long time Supreme Court advocate. And you had 476 00:26:35,480 --> 00:26:38,159 Speaker 1: an interesting mix too of kind of newer advocates and 477 00:26:38,600 --> 00:26:41,280 Speaker 1: more veteran ones. And on the whole, everyone did a 478 00:26:41,280 --> 00:26:43,440 Speaker 1: pretty good job, you know, going into it, all these 479 00:26:43,480 --> 00:26:45,959 Speaker 1: lawyers know that maybe there's gonna be a little more 480 00:26:46,000 --> 00:26:49,080 Speaker 1: attention on these cases than there otherwise would be. Not 481 00:26:49,200 --> 00:26:51,639 Speaker 1: that there isn't reason enough to be well prepared for 482 00:26:51,640 --> 00:26:53,919 Speaker 1: an argument in itself, but you could tell that everyone 483 00:26:54,080 --> 00:26:56,640 Speaker 1: was on the whole anyway, ready to rise to the occasion. 484 00:26:57,160 --> 00:27:00,760 Speaker 1: And it also showed the inexperience of some of the 485 00:27:00,800 --> 00:27:04,320 Speaker 1: attorneys arguing before the court. I believe it was the 486 00:27:04,359 --> 00:27:09,400 Speaker 1: attorney who was arguing in the faithless electors case who 487 00:27:09,520 --> 00:27:12,600 Speaker 1: some of the justices seem to be really frustrated with, 488 00:27:12,720 --> 00:27:16,960 Speaker 1: especially Chief Justice John Roberts, because the Chief Justice asked 489 00:27:17,000 --> 00:27:20,840 Speaker 1: for limiting principles, and you know, he said anyone could vote, 490 00:27:21,080 --> 00:27:23,760 Speaker 1: a giraffe could vote. You mean, you know, June. It's 491 00:27:23,760 --> 00:27:26,080 Speaker 1: interesting you bring up this notion of a limiting principle, 492 00:27:26,240 --> 00:27:29,520 Speaker 1: because I think someone who even just casually was listening 493 00:27:29,560 --> 00:27:32,320 Speaker 1: to all the arguments in this two weeks session, that 494 00:27:32,440 --> 00:27:34,720 Speaker 1: was kind of the theme, and it's almost the theme 495 00:27:34,760 --> 00:27:38,080 Speaker 1: of the Court's work in general. They're looking to draw lines. Obviously, 496 00:27:38,480 --> 00:27:40,640 Speaker 1: any party that brings the case to the Supreme Court 497 00:27:40,720 --> 00:27:42,919 Speaker 1: they want to win pretty much anyway they can. But 498 00:27:42,960 --> 00:27:46,119 Speaker 1: the Supreme Court is more interested not necessarily just in 499 00:27:46,240 --> 00:27:49,000 Speaker 1: who wins or loses a particular case, but the legal 500 00:27:49,040 --> 00:27:50,800 Speaker 1: principle that's going to come out of it. And so 501 00:27:51,240 --> 00:27:54,480 Speaker 1: whether it was in that faithless Selector's case, whether it's 502 00:27:54,640 --> 00:27:57,600 Speaker 1: talking about the line or the limiting principle of congressional 503 00:27:57,600 --> 00:28:00,000 Speaker 1: subpoena power into the president in the Trump subpoena case, 504 00:28:00,600 --> 00:28:03,400 Speaker 1: this was a topic that was clearly on the Justice's 505 00:28:03,480 --> 00:28:05,320 Speaker 1: mind during the session, and it was kind of a 506 00:28:05,440 --> 00:28:08,280 Speaker 1: through line through all of these arguments. And not that 507 00:28:08,280 --> 00:28:11,200 Speaker 1: that's unique to to these cases, but that shows really 508 00:28:11,240 --> 00:28:13,760 Speaker 1: what the work of the Court is for the most part, 509 00:28:13,800 --> 00:28:17,000 Speaker 1: in trying to make these clear legal rules to apply 510 00:28:17,119 --> 00:28:20,159 Speaker 1: in all cases going forward. So in your Cases and 511 00:28:20,240 --> 00:28:23,639 Speaker 1: Controversies podcast, didn't you speak to the lawyer who was 512 00:28:23,760 --> 00:28:27,560 Speaker 1: involved in that fact as elector's case. Yes, we spoke 513 00:28:27,640 --> 00:28:32,360 Speaker 1: to Jason Harrow about the Frodo Baggen's example and how 514 00:28:32,400 --> 00:28:34,840 Speaker 1: it was his first time arguing, and that was a 515 00:28:34,880 --> 00:28:38,440 Speaker 1: really interesting insight that we got from him to being 516 00:28:38,480 --> 00:28:40,840 Speaker 1: able to talk to someone who had just come off 517 00:28:40,840 --> 00:28:42,560 Speaker 1: of one of these arguments. So that was a treat 518 00:28:42,800 --> 00:28:45,360 Speaker 1: How did he feel about how the argument went. We 519 00:28:45,360 --> 00:28:48,400 Speaker 1: didn't get too much into the substance of the argument. 520 00:28:48,440 --> 00:28:50,480 Speaker 1: We kind of talked more generally about the issue and 521 00:28:50,520 --> 00:28:52,640 Speaker 1: what it was like arguing at the court. You know, 522 00:28:52,760 --> 00:28:55,680 Speaker 1: I think it seemed unlikely coming out of that argument 523 00:28:55,720 --> 00:28:59,480 Speaker 1: that the justices were going to grant these electors the 524 00:28:59,560 --> 00:29:03,200 Speaker 1: ability need to vote for whoever they wanted, or to 525 00:29:03,240 --> 00:29:05,760 Speaker 1: put it differently, it seemed likely that the justices were 526 00:29:05,760 --> 00:29:08,880 Speaker 1: going to prevent states from taking steps to make sure 527 00:29:08,960 --> 00:29:12,400 Speaker 1: that electors vote in the way that their states actually wanted. 528 00:29:12,480 --> 00:29:14,720 Speaker 1: So it might have kind of just been a tough 529 00:29:14,800 --> 00:29:17,800 Speaker 1: argument to make in some ways. You know, as the lawyers, 530 00:29:17,840 --> 00:29:20,520 Speaker 1: sometimes you have the the case that's in front of you, right, 531 00:29:20,880 --> 00:29:24,560 Speaker 1: and so you know, I think searching for this limiting 532 00:29:24,600 --> 00:29:27,880 Speaker 1: principle was a through line that we saw throughout the week, 533 00:29:27,920 --> 00:29:30,800 Speaker 1: and we saw a lot of frustrations again, you know, 534 00:29:31,800 --> 00:29:34,800 Speaker 1: perhaps the most frustrated that the justices have been, or 535 00:29:34,840 --> 00:29:36,800 Speaker 1: at least some of them. Anyway, we're in these trumps 536 00:29:36,840 --> 00:29:40,120 Speaker 1: topoena cases when it was the lawyer for the House 537 00:29:40,120 --> 00:29:43,800 Speaker 1: of Representatives who it seems was perhaps unable to come 538 00:29:43,880 --> 00:29:46,640 Speaker 1: up with a clear line at least to a majority 539 00:29:47,080 --> 00:29:50,760 Speaker 1: of the court satisfaction to the line for what congressional 540 00:29:50,760 --> 00:29:53,800 Speaker 1: power could be in terms of investigating the president with 541 00:29:53,880 --> 00:29:57,959 Speaker 1: these topoena's. Thanks, Jordan's that's Bloomberg Law editor Jordan Rubin, 542 00:29:58,160 --> 00:30:00,520 Speaker 1: and that's it to this edition of Bloomberg A. I'm 543 00:30:00,560 --> 00:30:02,480 Speaker 1: June Russell and this is Woolburg