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Speaker 1: This is Bloomberg Law.

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Speaker 2: What does a prosecutor have to prove in order to

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Speaker 2: get a Rico conviction? Tell us why this solicitor General

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Speaker 2: is sometimes referred to as the tenth Justice.

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Speaker 1: Interviews with prominent attorneys in Bloomberg Legal Experts.

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Speaker 2: That's Jennifer k for Bloomberg Law. Joining me is former

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Speaker 2: federal prosecutor Robert miss.

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Speaker 1: And analysis of important legal issues cases in headlines.

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Speaker 2: It's the toughest hurdle for prosecutors proving Trump's intent. Alito

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Speaker 2: took on Congress, saying Congress has no power to regulate

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Speaker 2: the Supreme Court.

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Speaker 1: Bloomberg Law with June Grosso from Bloomberg Radio.

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Speaker 2: Welcome to the Bloomberg Law Show. I'm June Grosso. Ahead

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Speaker 2: in this hour a landmark anti trust case against Google,

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Speaker 2: the controversial decision limiting the administration's communications with social media companies.

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Speaker 2: Justice Alito rejects calls for his recusal in a major

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Speaker 2: tax case, and Tesla's ban on US union shirts goes

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Speaker 2: all the way to a federal appellate court. The United

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Speaker 2: States versus Google, the first trial pitting the federal government

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Speaker 2: against a US technology company in more than two decades,

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Speaker 2: began in a DC federal court on Tuesday. The Justice

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Speaker 2: Department and state attorneys general alleged that Google illegally monopolized

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Speaker 2: the online search market by paying billions of dollars to

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Speaker 2: tech rival smartphone makers and wireless providers in exchange for

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Speaker 2: being the default search engine on browsers and mobile devices.

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Speaker 2: But Google's top lawyer, Can't Walker, told CBS News that

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Speaker 2: consumers use the search engine because it's helpful and it's

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Speaker 2: easy to switch to another search engine.

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Speaker 1: It really couldn't be easier.

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Speaker 3: You can sit at home on your couch and change

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Speaker 3: what search engine you're using.

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Speaker 1: It's as easy as changing your shoes.

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Speaker 2: My guest is antitrust expert Harry First, a professor at

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Speaker 2: NYU Law School. Harry, just how important is this case?

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Speaker 4: This is an important case, at least symbolically and maybe practically.

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Speaker 4: So symbolically it's important. It is the first case in

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Speaker 4: more than two decades to challenge a durable, high tech monopoly.

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Speaker 4: So the last case was brought in May of nineteen

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Speaker 4: ninety eight, so that's a quarter of a century since

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Speaker 4: the last one, and that was against Microsoft, and since

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Speaker 4: that time nothing, So it is symbolically important because it

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Speaker 4: shows the federal government and the state any trust enforces

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Speaker 4: turning their attention to big power in our economy.

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Speaker 2: The government says that Google paid more than ten billion

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Speaker 2: dollars a year for exclusive agreements to make Google the

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Speaker 2: default search engine on mobile phones and browsers. Is there

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Speaker 2: anything wrong with that with the company saying I'll pay

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Speaker 2: you if you do this and we both benefit.

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Speaker 4: Well, the definition of an agreement is we both benefit.

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Speaker 4: So the question is whether these agreements helped to maintain

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Speaker 4: Google's monopoly position. So firms entered into lots of agreements

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Speaker 4: across the economy, of course, and most of them are lawful.

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Speaker 4: But when it comes to monopoly firms, firms that have

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Speaker 4: a monopoly position, they can't use agreements to unreasonably exclude competitors.

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Speaker 4: And that's what the government plaintiffs are arguing that these

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Speaker 4: agreements unreasonably excluded good competitors who were foreclosed from, you know,

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Speaker 4: getting their search engines in front of consumers so they

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Speaker 4: could use them, and so that they could get more

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Speaker 4: and more searches done on them and continuously do what

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Speaker 4: Google had been able to do. And they were monopolists.

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Speaker 4: More and more data, more and more data, and so

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Speaker 4: get better results, have a better search engine. So the

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Speaker 4: argument is that they excluded competitors through these agreements.

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Speaker 2: In the opening statements, Google's lawyer argued that consumers don't

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Speaker 2: use Google because they have to. They use it because

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Speaker 2: they want to, and if they want to switch, it's

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Speaker 2: easy enough, right.

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Speaker 4: So that is a factual argument in essence, but it's

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Speaker 4: also an appeal to framing the case in a way

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Speaker 4: favorable to Google and in a way that they hope

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Speaker 4: will appeal to the judge. So Google's basic argument is,

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Speaker 4: are you kidding me? This is the greatest product ever?

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Speaker 4: Why do people use it? You know, nobody's holding a

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Speaker 4: gun to their head. They use it because it's darn good.

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Speaker 4: And you know, nothing is stopping consumers from changing those

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Speaker 4: the falls. They could do it. You know it's easy

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Speaker 4: enough to do, So tell me why they don't do it.

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Speaker 4: I'll tell you why they don't do it. They don't

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Speaker 4: do it because they get a great product and they're

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Speaker 4: happy with it. And in the end, Google says, and

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Speaker 4: this is true, the purpose of the any trust laws

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Speaker 4: is to serve consumers. That's what markets are for, and

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Speaker 4: consumers are being very well served. So why are you bringing.

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Speaker 1: This case government?

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Speaker 2: Is that the only argument you think they're going to make.

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Speaker 4: Well, there are lots of legal arguments along the way.

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Speaker 4: They may argue that search actually isn't a product because

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Speaker 4: it's on price free. You know, you can't raise its price.

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Speaker 4: You can't lower its price the product if there's a

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Speaker 4: product involved as advertising, you know, and then what's the

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Speaker 4: advertising market? They'll argue that, okay, if search is a product,

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Speaker 4: you know, there are lots of ways to search for information.

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Speaker 4: Even on the Internet. There are lots of ways to

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Speaker 4: search for information. So for example, you know, people search

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Speaker 4: for information on TikTok. Maybe not you or me, but

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Speaker 4: younger people do. People search for information on Amazon, you know,

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Speaker 4: if they are looking for a product, lots of people

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Speaker 4: just go right to Amazon and look for it. They

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Speaker 4: don't look for it on Google. So there are lots

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Speaker 4: of different ways to search for things, and Google is

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Speaker 4: if search is a product, Google doesn't control it. Consumers

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Speaker 4: control it. They those keyboards and make their choices.

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Speaker 2: The judge asked Google's lawyer to respond to the Justice

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Speaker 2: Department's allegation that quote, what you say, our competition for

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Speaker 2: defaults are not really competition at all that. Really, only

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Speaker 2: Google can be selected for the default. Explain why that's important.

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Speaker 4: So Google was selected for the default because they paid

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Speaker 4: for it in one way or another, either through the

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Speaker 4: revenue share or for saying, you know, if you want

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Speaker 4: all these apps, you've got to make it a default,

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Speaker 4: or they paid Apple large sums of money. The question

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Speaker 4: is more, what does a default mean? Default is an exclusivity.

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Speaker 4: It's just the start, It's where things start. It's default.

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Speaker 4: So you know, Google wants to say, there's still plenty

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Speaker 4: of consumer choice. So Google isn't controlling it. Consumers are

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Speaker 4: controlling it. I think the judge has already shown a

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Speaker 4: little skepticism about an argument that the faults don't matter,

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Speaker 4: which is I think what Google wants to say, You know,

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Speaker 4: they don't matter because they're changeable. And I think, you know,

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Speaker 4: the judge is my recollection was pressing Google's council already

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Speaker 4: for saying, well, give me some examples to consumers changing.

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Speaker 2: Harry as a lawyer, which side would you rather be on,

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Speaker 2: the governments or Googles?

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Speaker 4: I think the government's case is strong. Actually now, I

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Speaker 4: say that in part because there's been a test run.

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Speaker 4: In a way the European Commission already found a lot

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Speaker 4: of this stuff to be in European competitional abusive dominance,

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Speaker 4: the agreements relating to mobile distribution, not the browser part.

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Speaker 4: And you know, one good reasoning that doesn't compel the

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Speaker 4: same results in the United States, but it's pretty similar.

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Speaker 4: It's similar to arguments that were made in the Microsoft

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Speaker 4: case about contracts that were exclusive and effectively excluded Netscape

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Speaker 4: the browser, even though you know you could still get

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Speaker 4: a browser in different ways. Now you may remember, I remember,

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Speaker 4: you know, it used to be well, if you couldn't

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Speaker 4: get the browser pre installed on a Dell PC, they

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Speaker 4: came in the mail. Hey, there's plenty of distribution in

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Speaker 4: the court that there. You know, it doesn't have to

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Speaker 4: completely foreclose you, but it just shuts off basically the

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Speaker 4: most efficient way of distribution. And in that old day,

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Speaker 4: the OEMs, the Dells of the world compact didn't want

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Speaker 4: to put a second browser on because of cost. And

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Speaker 4: here they get that same default, even though they technically

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Speaker 4: don't call it exclusive. It's the same sort of thing.

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Speaker 4: So I think the government has a strong case. Obviously,

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Speaker 4: it's not a lay down case. I haven't heard any

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Speaker 4: talk of settlement. So Google presumably feels that it might

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Speaker 4: be able to win a trial, and there's a long

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Speaker 4: time between here and there, As they say, before there's

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Speaker 4: some resolution of this case, because this is really we're

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Speaker 4: just at the beginning of it.

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Speaker 2: In its lawsuit against Google, the Justice Department pointed to

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Speaker 2: that Microsoft case and said that Google deploys the same

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Speaker 2: playbook as Microsoft did. How much does this case borrow

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Speaker 2: from the Microsoft case or echo the Microsoft case.

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Speaker 4: I think there are a lot of similarities. You know, Microsoft,

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Speaker 4: a lot of the exclusionary work was done by exclusive

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Speaker 4: contracts that they had with service providers, with cool so forth.

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Speaker 4: They paid the money, So there are a lot of

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Speaker 4: factual similarities. I don't think there's the same sort of

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Speaker 4: technicological effort of tying Google Search to something, which is

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Speaker 4: what Microsoft did with the Internet Explorer browser. But it's

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Speaker 4: quite similar. And the District Court has already followed the

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Speaker 4: legal playbook as well. I mean, the government, i think,

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Speaker 4: has tried to say, hey, this is Microsoft, and you

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Speaker 4: know how that came out, and legally, the district court

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Speaker 4: judges already followed the way the Court of Appeals set

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Speaker 4: out the structure for analyzing the problem. The district Court

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Speaker 4: has already chosen that in the earlier decision that made

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Speaker 4: the case. So Microsoft is going to be very important

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Speaker 4: in this case. But you know, in the end, facts

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Speaker 4: are very important. So we'll see yet how the judge

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Speaker 4: feels about the arguments on default and how much of

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Speaker 4: the market was really foreclosed by this or you know,

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Speaker 4: how you figure that out. So that's yet to be seen.

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Speaker 2: Yes, a lot more to come. This is just the

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Speaker 2: first stage of the trial and the judge isn't expected

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Speaker 2: to make a decision until next year. If he finds

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Speaker 2: that Google broke the law, then a second phase will

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Speaker 2: determine remedies. So will surely be talking to you again, Harry,

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Speaker 2: Thanks so much. That's Professor Harry First of NYU Law School.

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Speaker 2: Coming up next a decision limiting administration officials communications with

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Speaker 2: social media companies. I'm June Grosse. When you're listening to Bloomberg, this.

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Speaker 1: Is Bloomberg Law with June Grosso from Bloomberg Radio.

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Speaker 2: The Supreme Court has paused a ruling that restricts the

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Speaker 2: Biden administration's contacts with social media companies. The administrative stay

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Speaker 2: granted by Justice Samuel Leto is a stopgap measure while

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Speaker 2: the justices consider how to handle the First Amendment clash

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Speaker 2: ruled on by the Fifth Circuit Court of Appeals last Friday.

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Speaker 2: That Circuit court concluded that the Biden White House, the

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Speaker 2: Surgeon General, the CDC, and the FBI likely violated free

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Speaker 2: speech rights by coercing social media platforms to take down

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Speaker 2: posts on their sites at times with intimidating messages and

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Speaker 2: threats of adverse consequences. White House Press Secretary Karine Jean

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Speaker 2: Pierre has said that communications by Biden officials with the

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Speaker 2: social media companies was not coercive.

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Speaker 3: We have promoted responsible actions to protect public health, safety,

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Speaker 3: and security when confronted by challenges like a deadly pandemic

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Speaker 3: and foreign attacks on our elections, and we have consistently

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Speaker 3: made clear that we believe social media companies have a

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Speaker 3: critical responsibility to take account of the effects of their

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Speaker 3: platforms that they have on the American people while making

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Speaker 3: independent decisions about the content of their platforms.

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Speaker 2: Joining me is Professor Eric Goleman of the Santa Clara

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Speaker 2: University School of Law. He's also a co director of

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Speaker 2: the High Tech Law Institute. Eric what was the main

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Speaker 2: issue in the Fifth Circuit case.

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Speaker 5: The basic question is when were conversations that were taking

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Speaker 5: place between the government and social media services becoming so

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Speaker 5: coersive or so directed that the social media services were

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Speaker 5: doing the government's bidding and removing content at their direction.

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Speaker 2: Did the Fifth Circuit find that there were actual threats

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Speaker 2: made to social media companies?

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Speaker 5: It did, But the threats are always a little bit vague.

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Speaker 5: It's not always as easy as you must do X

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Speaker 5: or we will throw you in jail. The threats are

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Speaker 5: often more indirect, and that's one of the many challenges

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Speaker 5: from this opinion. It wasn't entirely clear to me exactly

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Speaker 5: which threats mattered, were when they even became threats, and.

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Speaker 2: What did the injunction specifically prohibit Biden administration officials from doing.

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Speaker 5: The actual implementation of the injunction is no more clear

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Speaker 5: than before the opinion. What the court said is that

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Speaker 5: certain branch of the government, specifically they called out the

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Speaker 5: White House and the FBI must comply with the rules

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Speaker 5: articulated in the court. But the Court didn't provide concrete

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Speaker 5: boundaries around those rules, simply said you must comply with

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Speaker 5: the Constitution. So, in a sense, I don't know how

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Speaker 5: the executive branches are going to implement what the court's

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Speaker 5: ordering them to do because it's saying comply with the Constitution.

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Speaker 5: But obviously, the people who made the decision in the

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Speaker 5: first place weren't clear what was constitutional what wasn't, and

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Speaker 5: I don't know they're ingclearer now.

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Speaker 2: It also says they can't significantly encourage platforms to remove

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Speaker 2: lawful content. So what does significantly encourage mean exactly?

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Speaker 5: That's the point. The significant encouragement is the boundary around

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Speaker 5: the constitutional protections. In other words, if they're significantly encouraging

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Speaker 5: the removal of constitutional content that's not constitutional, that's a

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Speaker 5: violation of the First Amendment. However, what constitutes this significant

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Speaker 5: encouragement is not made clear by the opinion. They do

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Speaker 5: point to a few examples, but I don't think I

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Speaker 5: would know how to actually interpret that language. And so

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Speaker 5: what's likely to happen is that if this opinion stands,

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Speaker 5: the regulated entities are going to become far less conversational

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Speaker 5: with the social media services. They're not going to take

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Speaker 5: a chance about violating the rule. So the court standard

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Speaker 5: actually clears out a lot of permitted behavior today. Because

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Speaker 5: the boundary is so unclear, people are going to err

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Speaker 5: on the side of being cautious.

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Speaker 2: Well, that's what the Republicans who brought this case want,

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Speaker 2: isn't it. The Missouri ag Andrew Bailey, said that the

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Speaker 2: ruling was another brick in the wall of separation between

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Speaker 2: tech and state.

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Speaker 5: No doubt many people wish that the government would not

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Speaker 5: be in conversations with social media services, and yet the

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Speaker 5: court's opinion really cuts the shut over dialogues that take

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Speaker 5: place every day, all the time throughout our entire country

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Speaker 5: between governments and private entities, not just social media services.

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Speaker 5: This concern about significant encouragement or coercion and comes up

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Speaker 5: across the board in lots of spaces, and the quest

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Speaker 5: standard puts potentially many or all of those in play.

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Speaker 5: Opens up the door for lots of people to challenge

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Speaker 5: government conversations that are just in the public health and

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Speaker 5: safety interest. Gom's just trying to do its job to

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Speaker 5: protected citizens, and now this court casts a doubt on

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Speaker 5: the legitimacy of those efforts.

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Speaker 2: The Biden administration had said that it was pushing social

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Speaker 2: media companies to just adhere to their own rules about content.

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Speaker 2: Did you see a First Amendment violation here?

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Speaker 5: There's no doubt that some individual employees of the government

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Speaker 5: pushed the frontiers, perhaps to or over the limit. That's

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Speaker 5: just the nature of individual government employees so zealously trying

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Speaker 5: to do their job, they might get a little bit excited.

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Speaker 5: Having said that, I think that overall a number of

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Speaker 5: the social media services appreciate the feedback from the government.

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Speaker 5: They want to hear from the government because the government

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Speaker 5: sees things that they don't or is a good neutral

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Speaker 5: source of assessing risks in the community that need to

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Speaker 5: be addressed, and so it's helpful for the social media

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Speaker 5: services to hear from the government. The risk that the

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Speaker 5: government is assessing what might be done to address those risks.

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Speaker 5: That's actually helpful and that informs the social media service's

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Speaker 5: own independent turtle discretion. So the line between that kind

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Speaker 5: of activity and the overzealous pushing by some government employees

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Speaker 5: is really thin. And we want fewer of the overzeala's stuff,

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Speaker 5: but we definitely want the other stuff to continue. And

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Speaker 5: that's the part that I don't think the government employees

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Speaker 5: are going to know where they are on that spectrum.

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Speaker 2: I thought it was interesting that doctor Anthony Fauci, who

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Speaker 2: came under such criticism from conservatives during COVID, you know,

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Speaker 2: the Fifth Circuit said, no, he did, Okay, he was fine.

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Speaker 5: Yeah. I think the Fifth Circuit was trying not to

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Speaker 5: engage in partisan politics. Fauci was the targeted conservative iyre,

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Speaker 5: and so they weren't pandering to that ire. And yet

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Speaker 5: the entire structure of the opinion really does validate a

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Speaker 5: lot of the conservative objectives in a way that I

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Speaker 5: think fundamentally on their minds. Part of the health and safety.

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Speaker 5: So it's kind of like, what do we really want

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Speaker 5: from the government, And I don't know that I share

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Speaker 5: the Fifth Circus vision of what it wants from the government.

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Speaker 2: I always point out that the Fifth Circuit is considered

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Speaker 2: the most conservative appellate court in the country, and we've

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Speaker 2: seen these judges make rulings that were outliers before, and

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Speaker 2: it's getting reversed by the Supreme Court more than it

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Speaker 2: used to.

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Speaker 5: Well, the good news is that this particular opinion fixed

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Speaker 5: an even worse District Court opinion that was a true outlier,

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Speaker 5: and even that opinion was too much for the Fifth Circuit.

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Speaker 5: They could not stand behind this opinion that had just

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Speaker 5: gone rogue on the rule of law. So In that sense,

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Speaker 5: the Fifth circu opinion is definitely better than the District

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Speaker 5: Court opinion that preceded it. And yet I don't know

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Speaker 5: what would happen if the Fifth Circuit opinion is appealed

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Speaker 5: to the Supreme Court.

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Speaker 2: The Biden administration told the Supreme Court it's going to

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Speaker 2: ask the court to take the case on appeal, and

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Speaker 2: in the meantime, Justice Samuel Alito granted the government's request

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Speaker 2: for a temporary stay. Does the Justice Department have a

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Speaker 2: good argument for the court to take this case.

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Speaker 5: The opinion, Although it narrowed the injunction quite a bit,

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Speaker 5: it still leaves a core injunction against key executive branch agencies,

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Speaker 5: restricting their ability to do their job and leaving such

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Speaker 5: ambiguity about how they can do their job that it

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Speaker 5: seems like they need the Supreme Court to give the

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Speaker 5: government more guidance. It wouldn't surprise me if the states

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Speaker 5: that are the plaintiffs in this case also appeal the

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Speaker 5: ruling because they want to pick up the stuff they

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Speaker 5: had gotten in the District Court that the Fifth Circuit

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Speaker 5: took away. So it's entirely possible both sides will be

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Speaker 5: encouraged in the Supreme Court to take this case.

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Speaker 2: And we'll know more by next Friday when Alito's stay ends.

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Speaker 2: Thanks Eric, that's Professor Eric Goleman of the Santa Clara

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Speaker 2: University School of Law. Coming up next, Justice Alito refuses

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

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

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Speaker 2: At a judicial conference in August, Justice Elena Kagan was

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Speaker 2: asked about Congress's power to check the Supreme Court.

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Speaker 6: It just can't be that the Court is the only

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Speaker 6: institution that somehow is not subject to any checks and

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Speaker 6: balances from anybody else. I mean, we're not imperial, and

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Speaker 6: we too are a part of a checking and balancing

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Speaker 6: system in various ways. So can Congress do various things

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Speaker 6: to regulate the Supreme Court? I think the answer is yes.

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Speaker 2: Justice Kagan's answer may have been yes, but Justice Samuel

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Speaker 2: Alito's answer was no. In a July interview for The

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Speaker 2: Wall Street Journal, Alito said Congress did not have the

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Speaker 2: power to impose an ethics code on the Supreme Court.

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Speaker 2: That interview has now led to calls for Alito to

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Speaker 2: recuse himself. Not because of the content of the piece,

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Speaker 2: but because one of the writers is an attorney involved

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Speaker 2: in a major tax case coming before the court this term.

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Speaker 2: Alito has refused to recuse himself, explaining why in an

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Speaker 2: unusual statement released by the Court last Friday, joining me

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Speaker 2: is constitutional law scholar David Souper, a professor at Georgetown

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Speaker 2: Law School, tell us a little more about the background

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Speaker 2: of this recusal dispute.

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Speaker 7: Certainly, Justice Alito perceived correctly that he was under considerable

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Speaker 7: criticism in the media and responded in a number of ways,

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Speaker 7: partly by writing an op ed defending himself and partly

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Speaker 7: by giving two interviews to a lawyer who was interviewing

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Speaker 7: him for the Wall Street Journal. That lawyer is now

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Speaker 7: one of the lawyers behind an effort to have large

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Speaker 7: chunks of our tex system declared unconstitutional, that is in

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Speaker 7: front of the court. Several people, including a number of Senators,

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Speaker 7: have suggested that Justice Alto should refuse himself because of

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Speaker 7: the ties to the lawyer who twice interviewed him, and

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Speaker 7: Justice Alito has said he will do no such things.

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Speaker 2: A group of Democrats, led by Senatjudiciary chaired Dick Durbin,

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Speaker 2: call for his recusal in a letter to the Chief Justice,

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Speaker 2: and Alito attached his statement in response to a Supreme

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Speaker 2: Court orders list, And if you look at it quickly,

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Speaker 2: it looks like a decision of the court, complete with footnotes.

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Speaker 2: How unusual is it on a scale of.

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Speaker 7: One to ten, pretty close to a ten. I think

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Speaker 7: you can get to a ten if you come by

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Speaker 7: in the very unusual form, and that the content is

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Speaker 7: also extremely strange.

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Speaker 2: He said that there was nothing out of the ordinary

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Speaker 2: about the interviews in question, and then he refers to

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Speaker 2: in footnotes interviews that various justices have done with members

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Speaker 2: of the media and says, well, they didn't recuse themselves

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Speaker 2: when cases involving those media entities came before the court.

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Speaker 2: But I don't know of any case where the journalists

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Speaker 2: then came before the court.

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Speaker 7: I don't either. It's also pretty unusual because Justice Alito

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Speaker 7: himself described this PR campaign as his self defense. Judges

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Speaker 7: talked to journalists to educate the public about the law

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Speaker 7: all the time, that's all fine, but he said that

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Speaker 7: no one was defending him, so he would have to

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Speaker 7: defend himself and launched this PR campaign. The lawyer in

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Speaker 7: this case helped to him with his pr campaign. Something

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Speaker 7: that people in this town pay tens and hundreds of

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Speaker 7: thousands of dollars for was given to him free, and

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Speaker 7: then this lawyer who did this enormous favor to him

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Speaker 7: is arguing a case in front of the court that's

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Speaker 7: unprecedented to my knowledge.

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Speaker 2: There's also the fact that when the first article was

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Speaker 2: published in April, the justices hadn't yet agreed to hear

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Speaker 2: the case. They agreed in June, and then the second

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Speaker 2: article was published in July. So the timing alone gives

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Speaker 2: the appearance of impropriety.

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Speaker 7: Well, any participation, whether it's in considering whether to take

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Speaker 7: the case or in deciding it, is improper if you

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Speaker 7: have a conflict of interest, and when someone has just

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Speaker 7: provided you services which, by your own admission, you felt

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Speaker 7: you badly needed, and those services have enormous value. That's

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Speaker 7: precisely why we have conflict of interest law. There's nothing

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Speaker 7: wrong with his getting these services. He just shouldn't participate

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Speaker 7: in a case that being litigated by the person who

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Speaker 7: provided them.

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Speaker 2: Something he said is something that I think Justice Thomas

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Speaker 2: has said too, which to me, this is the point

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Speaker 2: about ethics. He said they didn't discuss the tax case,

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Speaker 2: either directly or indirectly. Well, I mean, that's not the point,

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Speaker 2: is it, whether they discuss the case.

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Speaker 7: Well, that's certainly not the point. I mean, if a

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Speaker 7: lawyer in the case had given a car or a

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Speaker 7: house to a Supreme Court justice while not discussing the

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Speaker 7: case they were litigating, that justice should still refuse themselves

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Speaker 7: from the case that that lawyer was arguing, because they

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Speaker 7: obviously owe the lawyer or something and will have a

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Speaker 7: temptation to repay it.

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Speaker 2: Judiciary Chairman Dick Durbin's response was quote Justice Alito, of

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Speaker 2: the originalist school of thinking that empty seats on an

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Speaker 2: airplane don't count as gifts, surprises no one by sitting

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Speaker 2: on a case involving a lawyer who honored him with

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Speaker 2: a puff piece in the World Street Journal that referred

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Speaker 2: to Alito accepting a trip to a luxury fishing lodge

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Speaker 2: in Alaska from wealthy Republican donors. But there have been

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Speaker 2: a string of ethical lapses by some of the justices,

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Speaker 2: especially Clarence Thomas.

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Speaker 7: Yes, this one, though, is really more striking because Justice

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Speaker 7: Alito is saying that he should be able to rise

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Speaker 7: above his debt that he owes this lawyer and decide

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Speaker 7: the case fairly, which shows a fundamental misunderstanding of conflicts

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Speaker 7: of interest law. The whole point of conflicts of interest

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Speaker 7: law is that we don't want to ask people to

437
00:26:41,240 --> 00:26:44,000
Speaker 7: rise above their conflicts, and we don't want to ask

438
00:26:44,040 --> 00:26:46,879
Speaker 7: the public to trust that that has happened. Instead, we

439
00:26:46,960 --> 00:26:50,840
Speaker 7: eliminate the conflicts by having people who are conflicted not

440
00:26:51,320 --> 00:26:55,239
Speaker 7: involved in cases and with judges, the goal is to

441
00:26:55,320 --> 00:26:57,840
Speaker 7: avoid the appearance of impropriety.

442
00:26:58,000 --> 00:27:03,280
Speaker 2: The Judiciary Chair wrote to Chief Justice Roberts, Can Roberts

443
00:27:03,359 --> 00:27:06,480
Speaker 2: do anything when Alito says, nope, I'm not going to

444
00:27:06,480 --> 00:27:07,360
Speaker 2: recuse myself.

445
00:27:07,800 --> 00:27:08,000
Speaker 1: Yeah.

446
00:27:08,280 --> 00:27:11,199
Speaker 7: The Chief Justice, combined with the other justice can do

447
00:27:11,320 --> 00:27:14,560
Speaker 7: quite a great deal. Towards the end of Justice Douglas's

448
00:27:14,680 --> 00:27:18,800
Speaker 7: service on the Court, the other justice concluded that he

449
00:27:19,200 --> 00:27:24,399
Speaker 7: didn't have enough mental acuity to make responsible decisions, so

450
00:27:24,480 --> 00:27:27,760
Speaker 7: they informally agreed that they would not decide any case

451
00:27:27,800 --> 00:27:30,600
Speaker 7: in which his was the fifth vote. The other justices

452
00:27:30,800 --> 00:27:35,520
Speaker 7: can similarly decide that they will not decide any case

453
00:27:35,880 --> 00:27:39,520
Speaker 7: in which Justice Alito's is the fifth vote, or they

454
00:27:39,520 --> 00:27:43,560
Speaker 7: could simply vote to reject this case because they can't

455
00:27:43,640 --> 00:27:48,919
Speaker 7: hear it in impartial circumstances. It's called dismissed as improvidently

456
00:27:49,040 --> 00:27:53,240
Speaker 7: granted or dig. They can dig the case to prevent

457
00:27:53,680 --> 00:27:56,560
Speaker 7: Justice Alito from participating in it. But this goes way

458
00:27:56,600 --> 00:28:01,879
Speaker 7: beyond Justice Alito or Justice Thomas, other justices, and it

459
00:28:01,920 --> 00:28:05,120
Speaker 7: only takes five of them to make an order. They

460
00:28:05,160 --> 00:28:08,760
Speaker 7: can adopt an ethics code, they can adopt rules for accusal,

461
00:28:09,280 --> 00:28:12,680
Speaker 7: and it does not have to be unanimous. Many orders

462
00:28:12,720 --> 00:28:15,159
Speaker 7: of the Court, of course, are not unanimous, so the

463
00:28:15,240 --> 00:28:18,879
Speaker 7: others haven't need to step up. If they want the

464
00:28:18,920 --> 00:28:21,199
Speaker 7: public to respect the Court and if they want the

465
00:28:21,240 --> 00:28:23,880
Speaker 7: Court to do its business in a way that's worthy

466
00:28:23,920 --> 00:28:25,080
Speaker 7: of the public's competence.

467
00:28:25,440 --> 00:28:28,200
Speaker 2: It seems like a three prong problem. You have the

468
00:28:28,280 --> 00:28:32,800
Speaker 2: court's ethics controversies, you have the limited transparency at the court,

469
00:28:32,840 --> 00:28:35,919
Speaker 2: and then you have also these far reaching rulings that

470
00:28:36,640 --> 00:28:39,320
Speaker 2: bring the public's attention to the Court and its power.

471
00:28:39,840 --> 00:28:43,680
Speaker 7: Yeah, and that's the combination. Now, there's a majority of

472
00:28:43,720 --> 00:28:46,520
Speaker 7: the Court that is very conservative, and even on a

473
00:28:46,560 --> 00:28:50,840
Speaker 7: case that neither Justice Thomas nor Justice Leader were participating in,

474
00:28:50,920 --> 00:28:53,520
Speaker 7: there would still be a conservative majority on the Court.

475
00:28:53,920 --> 00:28:58,120
Speaker 7: The question is, why do they insist on proceeding in

476
00:28:58,200 --> 00:29:01,080
Speaker 7: a way that is, at once they're in bold and

477
00:29:01,160 --> 00:29:05,360
Speaker 7: at the same time raises serious ethical questions, and that's

478
00:29:05,480 --> 00:29:08,960
Speaker 7: very hard to understand. And then why the other justices

479
00:29:09,000 --> 00:29:11,400
Speaker 7: don't seem to see this is the problem worth addressing

480
00:29:11,840 --> 00:29:13,160
Speaker 7: is also hard to understand.

481
00:29:13,600 --> 00:29:16,120
Speaker 2: You talked about the various things that could be done

482
00:29:16,240 --> 00:29:19,640
Speaker 2: by the Supreme Court justices, But do you think that

483
00:29:19,840 --> 00:29:22,680
Speaker 2: anything will really be done in the end about either

484
00:29:22,840 --> 00:29:25,760
Speaker 2: just As Alito or just As Thomas by the Court itself.

485
00:29:26,080 --> 00:29:30,200
Speaker 7: I don't think they'll take action directly against them. That's

486
00:29:30,400 --> 00:29:33,920
Speaker 7: not how I close system like the Supreme Court typically works.

487
00:29:34,000 --> 00:29:37,240
Speaker 7: But I think they might very well establish a code

488
00:29:37,240 --> 00:29:39,720
Speaker 7: of ethics going forward. It won't deal with all the

489
00:29:39,760 --> 00:29:43,720
Speaker 7: problems we've had, it won't deal with how much, particularly

490
00:29:43,720 --> 00:29:48,160
Speaker 7: these two justices have committed themselves to a narrow set

491
00:29:48,240 --> 00:29:52,520
Speaker 7: of right wing billionaires, but it can limit what happens

492
00:29:52,600 --> 00:29:56,400
Speaker 7: going forward and hopefully keep this sort of thing from

493
00:29:56,640 --> 00:29:59,680
Speaker 7: snowballing as it obviously has with these two justices.

494
00:30:00,080 --> 00:30:02,200
Speaker 2: Well, we'll see if this is the last word on

495
00:30:02,920 --> 00:30:06,560
Speaker 2: Justice Alito's recusal or not. Thanks so much, David. That's

496
00:30:06,600 --> 00:30:10,440
Speaker 2: Professor David super of Georgetown Law School coming up. Next

497
00:30:10,440 --> 00:30:14,280
Speaker 2: on the Bloomberg Law Show, a controversial appellate court ruling

498
00:30:14,560 --> 00:30:19,080
Speaker 2: that the Biden administration coerced social media platforms to take

499
00:30:19,120 --> 00:30:22,720
Speaker 2: down posts on their sites. I'm Junengrosso and you're listening

500
00:30:22,800 --> 00:30:23,520
Speaker 2: to Bloomberg.

501
00:30:26,760 --> 00:30:32,000
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

502
00:30:32,680 --> 00:30:36,720
Speaker 3: The money is there, the cause is righteous, the world

503
00:30:36,800 --> 00:30:41,160
Speaker 3: is watching, and the UAW is ready to stand up.

504
00:30:41,600 --> 00:30:43,120
Speaker 1: This is our defining moment.

505
00:30:44,000 --> 00:30:48,000
Speaker 2: It certainly was an unprecedented moment, as the United Auto

506
00:30:48,040 --> 00:30:52,360
Speaker 2: Workers went on strike Friday against all three Detroit automakers,

507
00:30:52,560 --> 00:30:56,640
Speaker 2: a strategy announced by its president Sean Fain. Of course,

508
00:30:56,720 --> 00:31:00,160
Speaker 2: Tesla doesn't have to worry about strikes. It's the the

509
00:31:00,200 --> 00:31:04,760
Speaker 2: only major US auto manufacturer not represented by a union.

510
00:31:05,120 --> 00:31:09,000
Speaker 2: The electric car makers legal disputes over union organizing are

511
00:31:09,040 --> 00:31:12,520
Speaker 2: no secret, and the legal fight over Tesla's ban on

512
00:31:12,640 --> 00:31:16,520
Speaker 2: workers wearing union shirts on its electric car production line

513
00:31:16,640 --> 00:31:19,600
Speaker 2: has reached the Fifth Circuit Court of Appeals. Joining me

514
00:31:19,680 --> 00:31:23,160
Speaker 2: is labor law expert Kate Andreas, a professor at Columbia

515
00:31:23,240 --> 00:31:27,040
Speaker 2: Law School. Kate is a ban on union shirts unusual.

516
00:31:27,560 --> 00:31:30,480
Speaker 2: I mean a lot of places even require uniforms.

517
00:31:30,960 --> 00:31:35,320
Speaker 8: Since the nineteen forties. The NLRB has held, with Supreme

518
00:31:35,320 --> 00:31:40,200
Speaker 8: Court approval that workers are allowed to wear union insignia,

519
00:31:40,560 --> 00:31:44,640
Speaker 8: including union T shirts, unless there's a special business reason

520
00:31:44,800 --> 00:31:46,840
Speaker 8: for an employer to prohibit it. So it is the

521
00:31:46,840 --> 00:31:50,240
Speaker 8: case that a lot of employers have uniform requirements, but

522
00:31:50,320 --> 00:31:55,320
Speaker 8: they have to permit workers to wear union buttons, union stickers,

523
00:31:55,440 --> 00:31:58,800
Speaker 8: union shirts unless there's some business reason why doing so

524
00:31:59,440 --> 00:32:03,240
Speaker 8: is trumental to the business. The board has recognized that

525
00:32:03,560 --> 00:32:06,160
Speaker 8: showing your support for the union is an important part

526
00:32:06,200 --> 00:32:09,080
Speaker 8: of how workers organized unions, and it's an important part

527
00:32:09,080 --> 00:32:12,160
Speaker 8: of workers right to expression at work right. It's their

528
00:32:12,240 --> 00:32:14,560
Speaker 8: right to communicate their support for the union, and that

529
00:32:14,720 --> 00:32:16,640
Speaker 8: is protected by the NRA.

530
00:32:17,200 --> 00:32:20,240
Speaker 2: Did a factor in it all that Tesla adopted this

531
00:32:20,400 --> 00:32:24,440
Speaker 2: policy in twenty seventeen during a campaign by the UAW

532
00:32:24,600 --> 00:32:26,360
Speaker 2: to organize production workers.

533
00:32:26,960 --> 00:32:30,680
Speaker 8: The Tesla's position was that ad adopted the ban because

534
00:32:30,720 --> 00:32:35,600
Speaker 8: there were problems with production, that Tesla vehicles were getting

535
00:32:35,680 --> 00:32:38,200
Speaker 8: harmed in some way in production, so it tightened up

536
00:32:38,200 --> 00:32:41,720
Speaker 8: this uniform rules. But what the board said was, well,

537
00:32:41,880 --> 00:32:45,120
Speaker 8: if you had, for example, made a progression on wearing

538
00:32:45,200 --> 00:32:48,240
Speaker 8: sharp implements, that would be understandable, right because you might

539
00:32:48,560 --> 00:32:51,680
Speaker 8: rip a our speed if you're wearing a sharp implement.

540
00:32:52,040 --> 00:32:54,520
Speaker 8: But what you can't do is adopt a rule that

541
00:32:54,600 --> 00:32:57,800
Speaker 8: there's no special business reason for it, And you certainly

542
00:32:57,840 --> 00:33:00,480
Speaker 8: can't do it if there's the possibility that you're doing

543
00:33:00,520 --> 00:33:03,680
Speaker 8: it in order to coerce workers and exercise of their

544
00:33:03,840 --> 00:33:07,160
Speaker 8: union organizing rights, that you're trying to discriminate against union activity.

545
00:33:07,320 --> 00:33:10,040
Speaker 8: But even if it's adopted for other reasons, it's not

546
00:33:10,200 --> 00:33:13,600
Speaker 8: permissible unless the employer can show that there's a need

547
00:33:13,640 --> 00:33:13,880
Speaker 8: for it.

548
00:33:14,080 --> 00:33:18,200
Speaker 2: But it seemed like the Fifth Circuit judges were concentrating

549
00:33:18,440 --> 00:33:23,080
Speaker 2: on the difference between dress codes that don't allow any

550
00:33:23,120 --> 00:33:27,240
Speaker 2: expression of union support and those like Tesla's that permit

551
00:33:27,600 --> 00:33:31,280
Speaker 2: workers to wear union stickers and the like. One of

552
00:33:31,280 --> 00:33:35,200
Speaker 2: the judges said, a sticker says go union, union is

553
00:33:35,240 --> 00:33:38,440
Speaker 2: good or whatever. In what way is that an insufficient

554
00:33:38,600 --> 00:33:43,760
Speaker 2: means of communication? So were these judges ignoring that precedent

555
00:33:43,880 --> 00:33:45,320
Speaker 2: you just told us about.

556
00:33:45,440 --> 00:33:47,320
Speaker 8: Right, So one of the judges seem to be saying,

557
00:33:47,880 --> 00:33:51,520
Speaker 8: if the employer gives workers some way to communicate their support,

558
00:33:51,720 --> 00:33:56,000
Speaker 8: that's enough that the employer gets to decide how workers

559
00:33:56,040 --> 00:33:58,600
Speaker 8: can communicate their support for the union. That is not

560
00:33:58,720 --> 00:34:02,600
Speaker 8: what the precedent has held since nineteen forty five. Other

561
00:34:02,680 --> 00:34:05,720
Speaker 8: than that brief period during the Trump administration. Since nineteen

562
00:34:05,760 --> 00:34:08,560
Speaker 8: forty five, the Board has said the employer doesn't get

563
00:34:08,600 --> 00:34:11,239
Speaker 8: to decide that it doesn't like union shirts or it

564
00:34:11,280 --> 00:34:14,480
Speaker 8: doesn't like union buttons unless there's a business reason for that.

565
00:34:14,680 --> 00:34:18,200
Speaker 8: So if the Fifth Circuit ends up adopting the reasoning

566
00:34:18,200 --> 00:34:20,880
Speaker 8: that was suggested in oral arguments, that would be a

567
00:34:20,880 --> 00:34:24,080
Speaker 8: real retrenchment of where workers' rights have been for a

568
00:34:24,120 --> 00:34:24,600
Speaker 8: long time.

569
00:34:25,160 --> 00:34:29,319
Speaker 2: I find it surprising that Tesla would bother to go

570
00:34:29,360 --> 00:34:32,440
Speaker 2: through these appeals and everything over this issue when I'm

571
00:34:32,480 --> 00:34:33,240
Speaker 2: missing something.

572
00:34:33,800 --> 00:34:35,600
Speaker 8: I think there are two things going on. One is

573
00:34:35,640 --> 00:34:40,319
Speaker 8: that employers like Tesla do everything they can to try

574
00:34:40,360 --> 00:34:44,160
Speaker 8: to stop workers from organizing unions. And so in every case,

575
00:34:44,280 --> 00:34:47,640
Speaker 8: if they're able to exert more authority over the workplace

576
00:34:47,680 --> 00:34:51,200
Speaker 8: and narrow the ability of workers to engage in organizing

577
00:34:51,239 --> 00:34:54,640
Speaker 8: activity that is very important to them that precedent for

578
00:34:54,880 --> 00:34:57,359
Speaker 8: user cases, it sends a message to workers, even if

579
00:34:57,360 --> 00:34:59,600
Speaker 8: it doesn't set precedent, that it's going to be very

580
00:34:59,640 --> 00:35:02,680
Speaker 8: different to win a union. And so I think that

581
00:35:02,800 --> 00:35:07,080
Speaker 8: explains why Tesla's pursuing what seems like a relatively minor issue.

582
00:35:07,239 --> 00:35:11,040
Speaker 2: Thanks Kate. That's Professor Kate Andreas of Columbia Law School.

583
00:35:11,360 --> 00:35:14,600
Speaker 2: This is Bloomberg Law on Bloomberg Radio. I'm June Grosso.

584
00:35:15,000 --> 00:35:18,280
Speaker 2: Stay with us. Today's top stories and global business headlines

585
00:35:18,280 --> 00:35:19,680
Speaker 2: are coming up right now