Speaker 1: You're listening to Bloomberg Law with June Grazzo from Bloomberg Radio.
Speaker 1: The Department of Justice and state attorneys general have been
Speaker 1: investigating Google's dominance over the one thirty billion dollar digital
Speaker 1: advertising market for about a year, and the Justice Department
Speaker 1: is drafting an antitrust lawsuit against the company. Joining me
Speaker 1: is Jennifer Ray, Bloomberg Intelligence Senior Litigation Analyst. So, Jen,
Speaker 1: do we know what charges the Justice Department is incorporating
Speaker 1: in its complaint. We really don't. The only thing that
Speaker 1: we have is just broadly that it sounds like, at
Speaker 1: least what's been reported in the news, that they're looking
Speaker 1: at advertising and I think that's not a surprise because
Speaker 1: in Europe, Google some of its conduct within its advertising
Speaker 1: realm has already been penalized in Europe for abuse of dominance,
Speaker 1: so that isn't surprising. But but it could be that
Speaker 1: they're also looking at other conducts. You know, these investigations
Speaker 1: really dive into the nitty retty of a company's business
Speaker 1: and really get into the weeds, and they could be
Speaker 1: looking at just about anything. There was a study done
Speaker 1: that gave a sort of a roadmap for what a
Speaker 1: complaint might look like, what do these studies authors suggest
Speaker 1: should be some of the components of the complaint right now?
Speaker 1: That study did focus on the advertising world, and you
Speaker 1: know what they really said is that at this point,
Speaker 1: through developing its own business and through acquiring other companies,
Speaker 1: Google is not only a major displayer of ads. Let's say,
Speaker 1: on on its own websites that it owns, like Google
Speaker 1: Maps or YouTube, or just through a search when somebody's
Speaker 1: using Google to search a topic, but it also controls
Speaker 1: a lot of the products that are needed, you know,
Speaker 1: sort of across the whole supply chain to link up
Speaker 1: an advertiser with a publisher. Let's say, you know, a
Speaker 1: third party website like The New York Times that wants
Speaker 1: to have ads displayed on its website. UM. And that
Speaker 1: because it has so much control of so many of
Speaker 1: the products need it is to link a publisher with
Speaker 1: an advertiser and get an appropriate ad put onto a
Speaker 1: website or connected to a search on the website, that
Speaker 1: it's able really to extract profits out of that chain
Speaker 1: and the prices that ought to be going to the
Speaker 1: publishers and the advertisers. Um. And they're just looking at
Speaker 1: the way that toole supply chain works from publisher to advertiser,
Speaker 1: and how Google might extract sort of let's say, extraordinary, uh,
Speaker 1: super competitive fees out of that supply chain. And they
Speaker 1: don't really make any suggestions with respect to what the
Speaker 1: remedies should be. Um. But but they just show how
Speaker 1: Google has market power and how some of its practices
Speaker 1: could be considered unreasonably exclusionary under our anti trust laws.
Speaker 1: Jen does Google have market power because it's the most
Speaker 1: popular search engine or doesn't have market power because it
Speaker 1: made acquisitions to increase its power? You know, June, It
Speaker 1: is probably a combination of both. Uh. Certainly, a company
Speaker 1: can gain market power by being desirable and again consumers
Speaker 1: like it, and so they gain all the business um,
Speaker 1: and they can gain a lawful monopoly in that way. Um.
Speaker 1: They can also gain market power by acquiring other entities.
Speaker 1: But the issue really is that it's just the market
Speaker 1: power alone isn't enough to violate the laws against illegal monopolization.
Speaker 1: There needs to be market power shown, and that's why
Speaker 1: in this paper they focused on how to show market power.
Speaker 1: But then they need to show that there's been some
Speaker 1: sort of a conduct that can essentially leverages that market power.
Speaker 1: And excludes rivals. There needs to be unreasonable conduct that's
Speaker 1: exclusionary that helps to maintain that market power. That's where
Speaker 1: it starts to cross the line. So what this paper
Speaker 1: did was it talked about the market power that Google
Speaker 1: has with certain ad products, and then some of the
Speaker 1: conducts that might help to maintain that market power, such
Speaker 1: as exclusionary contracts with certain third parties UM, a lack
Speaker 1: of interoperability with some of its functionality that might be
Speaker 1: needed for rivals. It's a way to keep the rivals
Speaker 1: out and to keep companies using their own product and
Speaker 1: maintaining their market power. So it's those two steps, and
Speaker 1: and having that market power by itself isn't necessarily unlawful.
Speaker 1: What has the US been investigating Google on? Well, it's
Speaker 1: likely that the US has been been investigating Google's um
Speaker 1: conduct and activity in an advertising market. And I say
Speaker 1: it's likely because we know that Google has already been
Speaker 1: found to have abused its dominance by the European Commission
Speaker 1: in a couple of different areas, and one of those
Speaker 1: areas is advertising. So it's kind of um handing some suggestions,
Speaker 1: so to speak, to the Department of Justice, which started
Speaker 1: looking at Google after the European Commission had already drawn
Speaker 1: its conclusions. Um Our laws from a nopolization are different
Speaker 1: from the European Commission's rules against the use of dominance,
Speaker 1: but there are a lot of similarities and the same
Speaker 1: kind of conduct can violate laws on both sides of
Speaker 1: the ocean. So if the conduct violated europe lause, there's
Speaker 1: a possibility it also violates US law. And it certainly
Speaker 1: seems like that would have been a good place for
Speaker 1: the Department of Justice to start. It doesn't mean that
Speaker 1: they stopped there, you know, you know, once they issued
Speaker 1: what's called the civil investigative demand, which is like a
Speaker 1: large subpoena. They're now getting into the company's documents, emails,
Speaker 1: text messages, things like that, and they're looking at the
Speaker 1: way they operate and do business and the decisions they make,
Speaker 1: and they could find some other area that Europe didn't
Speaker 1: focus on that they also believe, uh could be an
Speaker 1: example of Google, you know, exercising its dominance in an
Speaker 1: improper manner. So jan they're in the drafting stage right now,
Speaker 1: but doesn't seem likely that they will in fact file
Speaker 1: the lawsuit. Well, it makes it pretty likely that it's
Speaker 1: going to bring a lawsuit, it will have to complaint
Speaker 1: and get itself prepared to go to trial if it
Speaker 1: does believe that the law has been violated. Once that
Speaker 1: complaint is drafted, of course, there could be a settlement.
Speaker 1: I mean, this is what happens in most cases, not
Speaker 1: just when a company is being investigated for violating the
Speaker 1: antitrust laws, but also let's say when a merger is
Speaker 1: being investigated for potentially violating antitrust laws. The Department of
Speaker 1: Justice could conclude, yes, that it does, but then the
Speaker 1: companies can offer a settlement and I can get filed
Speaker 1: along with that complaint or after that complaint. So if
Speaker 1: the Department of Justice does draft a complaint get itself
Speaker 1: prepared to go to trial, there could be a settlement
Speaker 1: before it goes any farther than that, or in fact,
Speaker 1: that complaint could get filed in court and it could
Speaker 1: start litigation. Is it surprising at all that this might
Speaker 1: be happening during the pandemic or do you think that
Speaker 1: most of the work, most of the investigation was done
Speaker 1: well before. Well, I think the investigation was started well before.
Speaker 1: I mean, I mean, this was this was all happening
Speaker 1: and all in the cards and on the way when
Speaker 1: the pandemic pandemic happened, It just happened to occur, I
Speaker 1: think in the middle of this investigation. But the Department
Speaker 1: of Justice and the FTC for that matter, which is
Speaker 1: investigating Facebook, made it clear that their work is continuing,
Speaker 1: maybe from home, you know, and virtually, but it's continuing,
Speaker 1: and that they weren't really dropping anything. Um. And the
Speaker 1: Attorney General, Bill Bard, did stay back in December that
Speaker 1: he had hoped that the Department of Justice would be
Speaker 1: able to reach some sort of a decision with respect
Speaker 1: to what was going to happen with its investigation of
Speaker 1: Google by this year, he had said, by this summer,
Speaker 1: and maybe that possibly could get pushed back slightly due
Speaker 1: to delays from the pandemic. But it's really been business
Speaker 1: as usual, UM. With respect to the ongoing investigations that
Speaker 1: both the SEC and the Department of Justice, so the
Speaker 1: state attorneys general are also investigating Google. Is their investigation different?
Speaker 1: Is it parallel or is it different? It seems like
Speaker 1: from what's been reported that so far it's it's parallel
Speaker 1: as well as combined. UM. It seems that there is
Speaker 1: some sharing of information and documents between the state attorneys
Speaker 1: general and the Department of Justice, and that the the
Speaker 1: state attorneys general are also sort of looking on their
Speaker 1: own and I think that's pretty typical and investigations that
Speaker 1: are really big, and like this Google investigation, I suspect
Speaker 1: at the end it'll probably all get combined and come together.
Speaker 1: Um that the if the Department of Justice files the lawsuits,
Speaker 1: that the states will join into that lawsuit. Now they
Speaker 1: can also file their own independently if they want to
Speaker 1: go on different grounds or don't agree with the Department
Speaker 1: of Justice, but I think it more likely that they'll
Speaker 1: probably all end up coming together in the end. The
Speaker 1: FTC closed in investigation in into Google. Is there more
Speaker 1: evidence now or is it a change in administer rations.
Speaker 1: I don't think that it's a matter of more evidence.
Speaker 1: I think that was actually a pretty exhaustive investigation back then.
Speaker 1: But really what it is is a change in that
Speaker 1: It could be a change in many things. It could
Speaker 1: be a change in the competitive dynamic, a change in
Speaker 1: the industries with respected different companies having entered or exited,
Speaker 1: or perhaps acquisitions have small ocquisitions having been made since then.
Speaker 1: And in addition, it could be a change in conduct.
Speaker 1: You know, at that time they closed that investigation and
Speaker 1: there wasn't really any formal settlement with Google that require
Speaker 1: them in any legal sense to behave in a certain way.
Speaker 1: So Google has pretty much been free to behave and
Speaker 1: engage in its business in the way it's wanted to
Speaker 1: since then. And so it may be doing things differently
Speaker 1: now that do violate the law that at that time
Speaker 1: they simply weren't doing. For instance, June, A lot of
Speaker 1: times exclusive exclusive agreements can violate the law. You know,
Speaker 1: if if a company with the dominant position or that's
Speaker 1: vertically integrated, it say, has access to some input that
Speaker 1: it's it's competitors need um and it it it or
Speaker 1: it exclusively ties up an input that its competitors need,
Speaker 1: let's say, with exclusive agreements, and now these competitors simply
Speaker 1: can't operate because they need access and they can't get
Speaker 1: access because there's exclusivity just for let's say Google. You know,
Speaker 1: this can violate the law. And it's possible that Google
Speaker 1: has agreements like this that they didn't have back in
Speaker 1: two thousand thirteen. How significant would it be if the
Speaker 1: Justice Department decides to file a case against Google well,
Speaker 1: I think it's significant because, you know, it raises the
Speaker 1: prospect of potentially requiring a breakup of the company. Now
Speaker 1: I think that that's unlikely, but it's not outside the
Speaker 1: balance of possibilities that if the d o J does
Speaker 1: feel it needs to file a suit, UH, it has
Speaker 1: to seek a remedy, and that remedy could be something
Speaker 1: that impacts Google's business significantly, UM, be it a breakup
Speaker 1: or restricting the way it does its business. UM. You know,
Speaker 1: the d o J did try to break up Microsoft
Speaker 1: many years ago and they were unsuccessful, but they came close.
Speaker 1: And you know, both the Joe Simons from Sederal Trade
Speaker 1: Commission and UM the antitrust headed Department of Justice has
Speaker 1: said that they're all sorts of remedies they could seek,
Speaker 1: including breakup, and that they're not ruling that out. So
Speaker 1: it certainly raises the risks for Google if the d
Speaker 1: o J susan the company has to go to court.
Speaker 1: Has Google made any acquisitions in the last few years
Speaker 1: that they could divest you know, I don't know about
Speaker 1: the time frame and and specifically the last three years,
Speaker 1: but they have made acquisitions over let's say, the last
Speaker 1: ten years in this ad in I'll call it the
Speaker 1: ad intermediary space. You know, these all of these sort
Speaker 1: of business to business products that are needed to connect
Speaker 1: a publisher with an advertiser. One of those acquisitions, for instance,
Speaker 1: was double click um, which is one of these ad products.
Speaker 1: And it is certainly possible that one of the remedies
Speaker 1: the Department of Justice could seek would be the unwinding
Speaker 1: of the acquisition of one of these products needed along
Speaker 1: that supply chain. Are the House committees still investigating Google
Speaker 1: and the other tech companies. Yes, they are, and they
Speaker 1: had said that they had hoped to publish their findings
Speaker 1: I believe fairly soon, like even this month or next month,
Speaker 1: but that has been delayed due to the pandemic. Now,
Speaker 1: you know, the House Committee investigation, I think ultimately has
Speaker 1: a bit of a different role or goal in mind
Speaker 1: than the Department of Justice investigation. I think what they're
Speaker 1: looking at is whether or not there might be some
Speaker 1: new legislation or amendments to current legislation needed to deal
Speaker 1: with policing these big tech platforms and sort of this
Speaker 1: new digital economy that we live in. I think they've
Speaker 1: questioned whether or not the current antitrust laws that we
Speaker 1: have and the precedent that's been built up over the years,
Speaker 1: it's sufficient to tame the kind of behavior that the
Speaker 1: d o J may be looking at. So their goal
Speaker 1: is is more about the legislative goal than an enforcement coal.
Speaker 1: Thanks Jen, that's Bloomberg Intelligence Senior Litigation analyst Jennifer Ree.
Speaker 1: Bloomberg Law editor Jordan Rubin joins me now to discuss
Speaker 1: those historic live Supreme Court arguments that wrapped up last week.
Speaker 1: I would say overall it went very well, I think,
Speaker 1: possibly even better than people expected it to go. Obviously,
Speaker 1: there were probably one notable instance that got some people's
Speaker 1: intention of what sounded like a toilet flushing, But besides that,
Speaker 1: I think, you know, really the whole session went pretty well.
Speaker 1: The only problem that seemed to occur over and over
Speaker 1: was the justices forgetting to un mute their mute button.
Speaker 1: Some of the justices exactly, so they're sort of experiencing
Speaker 1: the same working from home issues that all of us
Speaker 1: are working on conference calls, people on muting. So kind
Speaker 1: of stuff is far from the core us just happens
Speaker 1: to be in a Supreme Court argument. But on the
Speaker 1: whole that didn't really detract too much from the substance
Speaker 1: of what was going on, and really, given all that
Speaker 1: could have gone wrong, it went pretty well. So you
Speaker 1: mentioned the one thing, the flush heard around the country
Speaker 1: in the middle of an argument, and the justices didn't
Speaker 1: say anything about it. They just kept going. It's been
Speaker 1: taken out of the permanent record, it's been taken out
Speaker 1: of the audio files as well as the transcript. Do
Speaker 1: we know any more about who did that? Well, as
Speaker 1: you can imagine, the Supreme Court isn't coming forward saying
Speaker 1: anyone in particular is responsible for the alleged flush. The
Speaker 1: flush in question. There's some speculation perhaps that it could
Speaker 1: have been Justice Brier, given the timing of it and
Speaker 1: how he was interacting during the rest of the argument,
Speaker 1: But we really don't know, and it's unclear whether there's
Speaker 1: going to be a serious congressional investigation into this uh incident.
Speaker 1: You know, there's some speculation. I think we look back
Speaker 1: on it kind of just as a funny thing that happened,
Speaker 1: showing that, you know, the justices are are human too,
Speaker 1: and if that's the worst thing that came out of
Speaker 1: this argument, I would say that kind of just underscores
Speaker 1: how much of a win the whole process was. So
Speaker 1: let's talk about some of the first Well, the first
Speaker 1: time we've heard Justice Clarence Thomas speak in ten arguments
Speaker 1: in a row. Oh yeah, that was certainly something that
Speaker 1: and certainly not everyone was expecting. The last time Justice
Speaker 1: Thomas asked questions that an argument was last term, and
Speaker 1: before that, it was many years before that, and so
Speaker 1: there was some speculation perhaps that because Justice Thomas's reasoning
Speaker 1: that he said in not questioning during the arguments is
Speaker 1: that he doesn't want to take away time from the
Speaker 1: lawyers making their arguments. But one notable thing about the
Speaker 1: way that the Court carried out these arguments was that
Speaker 1: the justices had turned to question in order. So really
Speaker 1: there was a set time for Justice Thomas and the
Speaker 1: rest of the justices to ask questions. And so it
Speaker 1: seems that in that setting he was more comfortable and
Speaker 1: perhaps didn't feel that he was detracting from the rest
Speaker 1: of the argument as opposed to just participating it, which
Speaker 1: he which he did, And the justices piggybacks off of
Speaker 1: his questions, saying, you know, following up on Justice Thomas's questions.
Speaker 1: So from their view, it seemed anyway that they thought
Speaker 1: of the questions he was asking, we're good ones. He
Speaker 1: also had what I consider one of the most memorable moments.
Speaker 1: Maybe that's because I'm a fan of the Lord of
Speaker 1: the Rings. He referred to Frodo Baggins in one of
Speaker 1: his questions. Yeah, certainly another thing that you know, if
Speaker 1: you had that one on your coronavirus pandemic Supreme Court argument,
Speaker 1: bingo card, you can cross that one off. To Justice
Speaker 1: Thomas referencing Frodo Baggins during the Supreme Court argument. That
Speaker 1: one came in the arguments over the electoral college, and
Speaker 1: that wound up spunning out all these hypotheticals of could
Speaker 1: you write in a candidate or as an elector could
Speaker 1: you wind up voting for Frodo Baggins over the person
Speaker 1: who your state actually essentially told you to vote for.
Speaker 1: And that was a fun hypothetical that the Justice Thomas
Speaker 1: came up with. So certainly by the end of the
Speaker 1: session when that argument took place, he was feeling comfortable
Speaker 1: enough to have a little fun with it. It sounds
Speaker 1: like so the first case that Justice has heard, which
Speaker 1: involved Booking dot Com and a trademark dispute that featured
Speaker 1: two women attorneys. Was that a first for the Supreme Court?
Speaker 1: It wasn't the first ever for the Supreme Court, but
Speaker 1: it's certainly a rarity. And if you were a uh,
Speaker 1: someone who doesn't follow the Supreme Court regularly and you
Speaker 1: tuned in for that argument, certainly you would be a
Speaker 1: bit misled into thinking that that's the normal representation of
Speaker 1: gender at the court. It's certainly Supreme Court arguments are
Speaker 1: a male dominated phenomenon. But you had the first argument
Speaker 1: kicking off in this historic session of two female advocates
Speaker 1: Erica Ross from the Solicitor General's Office representing the federal
Speaker 1: government and veteran Supreme Court at to get Lisa Black
Speaker 1: arguing for the company. And so you had really two
Speaker 1: great advocates to female advocates launching off this historic session,
Speaker 1: and they certainly did very well as the test subject,
Speaker 1: so to speak, for this new process. Any other first
Speaker 1: that you can think of Jordan's, well, there were some
Speaker 1: other advocates who are making their High Court debut interesting
Speaker 1: enough during this session. And you know, certainly your first
Speaker 1: Supreme Court argument is something that you'll remember, but certainly
Speaker 1: all the more during this pandemic, For example, in the
Speaker 1: mcgurd against Oklahoma case. Uh, the Oklahoma State Solicitor General
Speaker 1: Mith and Monston Connie was making his High Court debut
Speaker 1: in that elector's case that we were talking about, the
Speaker 1: Frodo bag Ins case, let's call it. You had an
Speaker 1: attorney Jason Harrow making his High Court debut in the
Speaker 1: Trump's Tobcoena cases. You had Carry Dunne from the Manhattan
Speaker 1: DA's office making a debut as well. So certainly it
Speaker 1: was first for them, and I'm sure it made it
Speaker 1: all the more interesting having that being one's first Supreme
Speaker 1: Court argumists. So, Jordan's which case did you find the
Speaker 1: most exciting? I choose the arguments over Trump's financial records. Well, certainly,
Speaker 1: you know you can't go wrong with that. These are
Speaker 1: historic cases, it's ones. These are arguments certainly that will
Speaker 1: be remembered for a long time. Going back to looking
Speaker 1: at cases for example, in the Nixon tapes case, this
Speaker 1: is certainly a case in line with that precedent, and
Speaker 1: so certainly just the fact of the historic issue before
Speaker 1: the court is exciting and its own right. Um, I'll
Speaker 1: go ahead and pick on a different case that maybe
Speaker 1: is a little lesser known and perhaps lesser watched out
Speaker 1: of the rest of the ones in this session. And
Speaker 1: that's the one I referenced a little earlier called McGirt
Speaker 1: against Oklahoma, And that's the case that we've talked about
Speaker 1: about whether essentially the eastern half of Oklahoma is technically
Speaker 1: sitting on Indian reservation land. And that's the case that
Speaker 1: has a lot of implications for criminal jurisdiction and civil
Speaker 1: and tax and regulatory implications. And there were four lawyers
Speaker 1: arguing in that case, as I mentioned, Solicitor General Monston
Speaker 1: Honey being one of those lawyers. And that was a
Speaker 1: really exciting argument in one with very interesting implications that
Speaker 1: I'll be very interested to see how the justices sort
Speaker 1: that case out. And what would you say was the
Speaker 1: dullest argument, the dullest argument? Oh wow, you know you can't.
Speaker 1: You can't say that about your children, right, you know
Speaker 1: you have to uh, the dullest argument, Well, probably, you know,
Speaker 1: aside from the the flush in a case involving robocalls,
Speaker 1: that probably was not the most exciting issue. Maybe, you know,
Speaker 1: trying to get more attention to the issue. Maybe that's
Speaker 1: why someone did the flush. I don't know, maybe that's
Speaker 1: the new theory that'll be out there, but that was
Speaker 1: probably on the lesser watch spectrum of all these cases.
Speaker 1: It did seem as though there was a mix of
Speaker 1: kind of high profile cases and lower profiles cases that
Speaker 1: the Court shows. It wasn't immediately clear in terms of
Speaker 1: every case that was put on for this session why
Speaker 1: the Supreme Court put it on for this session. Obviously,
Speaker 1: of something like the Trump's subpoena cases and the so
Speaker 1: called faithless electors cases about the Electoral College, obviously there's
Speaker 1: election implications in both of those cases and they're very important,
Speaker 1: So it's clear why the Court picked something like that.
Speaker 1: But for example, you know, the trademark case that we
Speaker 1: talked about, they kicked off the session. In terms of
Speaker 1: the significance of that case relative to some others that
Speaker 1: were pushed off the next term, it's not immediately clear,
Speaker 1: but it did give a nice kind of mix of
Speaker 1: different types of issues and cases to have throughout the session.
Speaker 1: You know, I would pick the trademark case as the dullest,
Speaker 1: and I think they picked it first because they wanted
Speaker 1: something that was going to be you know, lawyers who
Speaker 1: knew what they were doing, and a topic that was
Speaker 1: pretty dull it is, I think so, but it's also
Speaker 1: one that was I think somewhat accessible. You know, whether
Speaker 1: you can trade more this generic brand and so, you know,
Speaker 1: certainly not. You know, they're they're complicated aspects of every
Speaker 1: Supreme Court case, but for people who are turning into
Speaker 1: the first one, it had some fun hypotheticals in that
Speaker 1: case too, and so it was relatively accessible for a case. Also,
Speaker 1: there were only two lawyers arguing in that case, and
Speaker 1: in the first two days of the session, there was
Speaker 1: only one case on for each session, So it did
Speaker 1: seem like the justices wanted to focus on just maybe
Speaker 1: one case each day to kind of roll out this
Speaker 1: new platform, to see how it went, and not start
Speaker 1: off with these high level four lawyer arguments like we
Speaker 1: saw in the second week of the session. So at
Speaker 1: the beginning of these arguments, Chief Justice John Roberts was
Speaker 1: keeping things moving, he was cutting some people off so
Speaker 1: that you can move to the next justice. But the
Speaker 1: argument seemed to get longer and longer as the weeks
Speaker 1: went on. Certainly, some of the arguments did go over
Speaker 1: the one hour allotted time, and you know, you want
Speaker 1: under why does an argument just have to be one hour.
Speaker 1: Certainly we're all seeing in the virtual meetings that we're
Speaker 1: having and working from home that just the fact of
Speaker 1: using this technology can make things go a little longer
Speaker 1: than they otherwise would. And so, just as an other
Speaker 1: aspects of life, I think the Supreme Court is kind
Speaker 1: of just in that mess with the rest of us
Speaker 1: of technology up ending things. And so maybe an argument
Speaker 1: did go for about a half hour longer, But you know,
Speaker 1: these are important cases, and so I think that if
Speaker 1: the justices need a little more time, another half hour
Speaker 1: to sort out something like the presidential power in the
Speaker 1: Trump's Satoina cases, you know, I think we can afford
Speaker 1: to give them that time, even if the Chief Justice
Speaker 1: maybe wished that some of the arguments moved along a
Speaker 1: little more briskly. Good point Jordan's you listen to these
Speaker 1: arguments all the time in person a lot of the time.
Speaker 1: Did you get a sense of the justice is personalities
Speaker 1: from these ten arguments? You know? I think you still did?
Speaker 1: You have? You know, Justice Brier, who's always a lively
Speaker 1: questionnaire and he spins out all these long hypotheticals that
Speaker 1: take up pages of the Supreme Courts transcripts. He didn't
Speaker 1: necessarily speak for as long as he usually does, but
Speaker 1: just the fact that he's jumping into the argument and
Speaker 1: saying good morning, which not every justice, then you could
Speaker 1: tell he was kind of just happy to be there,
Speaker 1: whether or not he was the alleged flusher in this
Speaker 1: robot call case. He made a robocall joke about how
Speaker 1: he had an un muting issue or some kind of
Speaker 1: phone issue during that argument. Now he had to go,
Speaker 1: and so he wasn't immediately available when the Chief called
Speaker 1: on him, and he made a joke about, oh, I
Speaker 1: wasn't getting a robocall or something of that nature. So
Speaker 1: you had the justices personalities shining through. I think you
Speaker 1: have someone who Justice bry Or, you have him shining
Speaker 1: through anyway, And just as you mentioned the Chief kind
Speaker 1: of trying to keep things moving and orderly to some extent,
Speaker 1: that's his personality shining through. And so I think the
Speaker 1: answer is yes, maybe not to the extent that some
Speaker 1: of the justices might have wanted, But if you were
Speaker 1: to put the question to them, they would say, you know,
Speaker 1: it's just about kind of figuring out the issue, not
Speaker 1: so much about their their personalities. But I do think
Speaker 1: even someone who has never turned into a Supreme Court
Speaker 1: argument before. Did get a sense of really the serious
Speaker 1: business that the Court undertakes on a daily basis. And
Speaker 1: speaking of serious business, it seemed to me that Justice
Speaker 1: Alito was consistently the most no nonsense, no frills question
Speaker 1: or among the justices. Yeah, I think that there. I
Speaker 1: think that that's right. Uh. You know, I mentioned Justice
Speaker 1: Brier and some of the other justices they would start
Speaker 1: by saying good morning. Certainly that's not a requirement. I
Speaker 1: don't recall Justice Alito ever starting that way. Not that
Speaker 1: he was the only one, but he was ready to
Speaker 1: get down to business. He's kind of a no nonsense guy.
Speaker 1: And so going back to your previous question, I think
Speaker 1: his personality shown through in in that way as well.
Speaker 1: So the more I think about it, I really do
Speaker 1: think that the country did get a look or a
Speaker 1: liston anyway at the justices. I think you also got
Speaker 1: a sense of what an attorney who has argued so
Speaker 1: many times before the court, how their arguments go so
Speaker 1: much smoother, and there's a sort of a sense of
Speaker 1: respect from the justice, for example a Paul Clement. Oh,
Speaker 1: for sure, you could definitely tell all the work that
Speaker 1: goes into these arguments and the respects that all of
Speaker 1: these lawyers have, and listeners really did get to tune
Speaker 1: into some of these great advocates really from the start.
Speaker 1: As we mentioned, uh, Lisa Blad is a very well
Speaker 1: respected in long time Supreme Court advocate. And you had
Speaker 1: an interesting mix too of kind of newer advocates and
Speaker 1: more veteran ones. And on the whole, everyone did a
Speaker 1: pretty good job, you know, going into it, all these
Speaker 1: lawyers know that maybe there's gonna be a little more
Speaker 1: attention on these cases than there otherwise would be. Not
Speaker 1: that there isn't reason enough to be well prepared for
Speaker 1: an argument in itself, but you could tell that everyone
Speaker 1: was on the whole anyway, ready to rise to the occasion.
Speaker 1: And it also showed the inexperience of some of the
Speaker 1: attorneys arguing before the court. I believe it was the
Speaker 1: attorney who was arguing in the faithless electors case who
Speaker 1: some of the justices seem to be really frustrated with,
Speaker 1: especially Chief Justice John Roberts, because the Chief Justice asked
Speaker 1: for limiting principles, and you know, he said anyone could vote,
Speaker 1: a giraffe could vote. You mean, you know, June. It's
Speaker 1: interesting you bring up this notion of a limiting principle,
Speaker 1: because I think someone who even just casually was listening
Speaker 1: to all the arguments in this two weeks session, that
Speaker 1: was kind of the theme, and it's almost the theme
Speaker 1: of the Court's work in general. They're looking to draw lines. Obviously,
Speaker 1: any party that brings the case to the Supreme Court
Speaker 1: they want to win pretty much anyway they can. But
Speaker 1: the Supreme Court is more interested not necessarily just in
Speaker 1: who wins or loses a particular case, but the legal
Speaker 1: principle that's going to come out of it. And so
Speaker 1: whether it was in that faithless Selector's case, whether it's
Speaker 1: talking about the line or the limiting principle of congressional
Speaker 1: subpoena power into the president in the Trump subpoena case,
Speaker 1: this was a topic that was clearly on the Justice's
Speaker 1: mind during the session, and it was kind of a
Speaker 1: through line through all of these arguments. And not that
Speaker 1: that's unique to to these cases, but that shows really
Speaker 1: what the work of the Court is for the most part,
Speaker 1: in trying to make these clear legal rules to apply
Speaker 1: in all cases going forward. So in your Cases and
Speaker 1: Controversies podcast, didn't you speak to the lawyer who was
Speaker 1: involved in that fact as elector's case. Yes, we spoke
Speaker 1: to Jason Harrow about the Frodo Baggen's example and how
Speaker 1: it was his first time arguing, and that was a
Speaker 1: really interesting insight that we got from him to being
Speaker 1: able to talk to someone who had just come off
Speaker 1: of one of these arguments. So that was a treat
Speaker 1: How did he feel about how the argument went. We
Speaker 1: didn't get too much into the substance of the argument.
Speaker 1: We kind of talked more generally about the issue and
Speaker 1: what it was like arguing at the court. You know,
Speaker 1: I think it seemed unlikely coming out of that argument
Speaker 1: that the justices were going to grant these electors the
Speaker 1: ability need to vote for whoever they wanted, or to
Speaker 1: put it differently, it seemed likely that the justices were
Speaker 1: going to prevent states from taking steps to make sure
Speaker 1: that electors vote in the way that their states actually wanted.
Speaker 1: So it might have kind of just been a tough
Speaker 1: argument to make in some ways. You know, as the lawyers,
Speaker 1: sometimes you have the the case that's in front of you, right,
Speaker 1: and so you know, I think searching for this limiting
Speaker 1: principle was a through line that we saw throughout the week,
Speaker 1: and we saw a lot of frustrations again, you know,
Speaker 1: perhaps the most frustrated that the justices have been, or
Speaker 1: at least some of them. Anyway, we're in these trumps
Speaker 1: topoena cases when it was the lawyer for the House
Speaker 1: of Representatives who it seems was perhaps unable to come
Speaker 1: up with a clear line at least to a majority
Speaker 1: of the court satisfaction to the line for what congressional
Speaker 1: power could be in terms of investigating the president with
Speaker 1: these topoena's. Thanks, Jordan's that's Bloomberg Law editor Jordan Rubin,
Speaker 1: and that's it to this edition of Bloomberg A. I'm
Speaker 1: June Russell and this is Woolburg