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Speaker 1: And analysis of important legal issues cases in headlines.
Speaker 2: It's the toughest hurdle for prosecutors proving Trump's intent. Alito
Speaker 2: took on Congress, saying Congress has no power to regulate
Speaker 2: the Supreme Court.
Speaker 1: Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2: Welcome to the Bloomberg Law Show. I'm June Grosso. Ahead
Speaker 2: in this hour a landmark anti trust case against Google,
Speaker 2: the controversial decision limiting the administration's communications with social media companies.
Speaker 2: Justice Alito rejects calls for his recusal in a major
Speaker 2: tax case, and Tesla's ban on US union shirts goes
Speaker 2: all the way to a federal appellate court. The United
Speaker 2: States versus Google, the first trial pitting the federal government
Speaker 2: against a US technology company in more than two decades,
Speaker 2: began in a DC federal court on Tuesday. The Justice
Speaker 2: Department and state attorneys general alleged that Google illegally monopolized
Speaker 2: the online search market by paying billions of dollars to
Speaker 2: tech rival smartphone makers and wireless providers in exchange for
Speaker 2: being the default search engine on browsers and mobile devices.
Speaker 2: But Google's top lawyer, Can't Walker, told CBS News that
Speaker 2: consumers use the search engine because it's helpful and it's
Speaker 2: easy to switch to another search engine.
Speaker 1: It really couldn't be easier.
Speaker 3: You can sit at home on your couch and change
Speaker 3: what search engine you're using.
Speaker 1: It's as easy as changing your shoes.
Speaker 2: My guest is antitrust expert Harry First, a professor at
Speaker 2: NYU Law School. Harry, just how important is this case?
Speaker 4: This is an important case, at least symbolically and maybe practically.
Speaker 4: So symbolically it's important. It is the first case in
Speaker 4: more than two decades to challenge a durable, high tech monopoly.
Speaker 4: So the last case was brought in May of nineteen
Speaker 4: ninety eight, so that's a quarter of a century since
Speaker 4: the last one, and that was against Microsoft, and since
Speaker 4: that time nothing, So it is symbolically important because it
Speaker 4: shows the federal government and the state any trust enforces
Speaker 4: turning their attention to big power in our economy.
Speaker 2: The government says that Google paid more than ten billion
Speaker 2: dollars a year for exclusive agreements to make Google the
Speaker 2: default search engine on mobile phones and browsers. Is there
Speaker 2: anything wrong with that with the company saying I'll pay
Speaker 2: you if you do this and we both benefit.
Speaker 4: Well, the definition of an agreement is we both benefit.
Speaker 4: So the question is whether these agreements helped to maintain
Speaker 4: Google's monopoly position. So firms entered into lots of agreements
Speaker 4: across the economy, of course, and most of them are lawful.
Speaker 4: But when it comes to monopoly firms, firms that have
Speaker 4: a monopoly position, they can't use agreements to unreasonably exclude competitors.
Speaker 4: And that's what the government plaintiffs are arguing that these
Speaker 4: agreements unreasonably excluded good competitors who were foreclosed from, you know,
Speaker 4: getting their search engines in front of consumers so they
Speaker 4: could use them, and so that they could get more
Speaker 4: and more searches done on them and continuously do what
Speaker 4: Google had been able to do. And they were monopolists.
Speaker 4: More and more data, more and more data, and so
Speaker 4: get better results, have a better search engine. So the
Speaker 4: argument is that they excluded competitors through these agreements.
Speaker 2: In the opening statements, Google's lawyer argued that consumers don't
Speaker 2: use Google because they have to. They use it because
Speaker 2: they want to, and if they want to switch, it's
Speaker 2: easy enough, right.
Speaker 4: So that is a factual argument in essence, but it's
Speaker 4: also an appeal to framing the case in a way
Speaker 4: favorable to Google and in a way that they hope
Speaker 4: will appeal to the judge. So Google's basic argument is,
Speaker 4: are you kidding me? This is the greatest product ever?
Speaker 4: Why do people use it? You know, nobody's holding a
Speaker 4: gun to their head. They use it because it's darn good.
Speaker 4: And you know, nothing is stopping consumers from changing those
Speaker 4: the falls. They could do it. You know it's easy
Speaker 4: enough to do, So tell me why they don't do it.
Speaker 4: I'll tell you why they don't do it. They don't
Speaker 4: do it because they get a great product and they're
Speaker 4: happy with it. And in the end, Google says, and
Speaker 4: this is true, the purpose of the any trust laws
Speaker 4: is to serve consumers. That's what markets are for, and
Speaker 4: consumers are being very well served. So why are you bringing.
Speaker 1: This case government?
Speaker 2: Is that the only argument you think they're going to make.
Speaker 4: Well, there are lots of legal arguments along the way.
Speaker 4: They may argue that search actually isn't a product because
Speaker 4: it's on price free. You know, you can't raise its price.
Speaker 4: You can't lower its price the product if there's a
Speaker 4: product involved as advertising, you know, and then what's the
Speaker 4: advertising market? They'll argue that, okay, if search is a product,
Speaker 4: you know, there are lots of ways to search for information.
Speaker 4: Even on the Internet. There are lots of ways to
Speaker 4: search for information. So for example, you know, people search
Speaker 4: for information on TikTok. Maybe not you or me, but
Speaker 4: younger people do. People search for information on Amazon, you know,
Speaker 4: if they are looking for a product, lots of people
Speaker 4: just go right to Amazon and look for it. They
Speaker 4: don't look for it on Google. So there are lots
Speaker 4: of different ways to search for things, and Google is
Speaker 4: if search is a product, Google doesn't control it. Consumers
Speaker 4: control it. They those keyboards and make their choices.
Speaker 2: The judge asked Google's lawyer to respond to the Justice
Speaker 2: Department's allegation that quote, what you say, our competition for
Speaker 2: defaults are not really competition at all that. Really, only
Speaker 2: Google can be selected for the default. Explain why that's important.
Speaker 4: So Google was selected for the default because they paid
Speaker 4: for it in one way or another, either through the
Speaker 4: revenue share or for saying, you know, if you want
Speaker 4: all these apps, you've got to make it a default,
Speaker 4: or they paid Apple large sums of money. The question
Speaker 4: is more, what does a default mean? Default is an exclusivity.
Speaker 4: It's just the start, It's where things start. It's default.
Speaker 4: So you know, Google wants to say, there's still plenty
Speaker 4: of consumer choice. So Google isn't controlling it. Consumers are
Speaker 4: controlling it. I think the judge has already shown a
Speaker 4: little skepticism about an argument that the faults don't matter,
Speaker 4: which is I think what Google wants to say, You know,
Speaker 4: they don't matter because they're changeable. And I think, you know,
Speaker 4: the judge is my recollection was pressing Google's council already
Speaker 4: for saying, well, give me some examples to consumers changing.
Speaker 2: Harry as a lawyer, which side would you rather be on,
Speaker 2: the governments or Googles?
Speaker 4: I think the government's case is strong. Actually now, I
Speaker 4: say that in part because there's been a test run.
Speaker 4: In a way the European Commission already found a lot
Speaker 4: of this stuff to be in European competitional abusive dominance,
Speaker 4: the agreements relating to mobile distribution, not the browser part.
Speaker 4: And you know, one good reasoning that doesn't compel the
Speaker 4: same results in the United States, but it's pretty similar.
Speaker 4: It's similar to arguments that were made in the Microsoft
Speaker 4: case about contracts that were exclusive and effectively excluded Netscape
Speaker 4: the browser, even though you know you could still get
Speaker 4: a browser in different ways. Now you may remember, I remember,
Speaker 4: you know, it used to be well, if you couldn't
Speaker 4: get the browser pre installed on a Dell PC, they
Speaker 4: came in the mail. Hey, there's plenty of distribution in
Speaker 4: the court that there. You know, it doesn't have to
Speaker 4: completely foreclose you, but it just shuts off basically the
Speaker 4: most efficient way of distribution. And in that old day,
Speaker 4: the OEMs, the Dells of the world compact didn't want
Speaker 4: to put a second browser on because of cost. And
Speaker 4: here they get that same default, even though they technically
Speaker 4: don't call it exclusive. It's the same sort of thing.
Speaker 4: So I think the government has a strong case. Obviously,
Speaker 4: it's not a lay down case. I haven't heard any
Speaker 4: talk of settlement. So Google presumably feels that it might
Speaker 4: be able to win a trial, and there's a long
Speaker 4: time between here and there, As they say, before there's
Speaker 4: some resolution of this case, because this is really we're
Speaker 4: just at the beginning of it.
Speaker 2: In its lawsuit against Google, the Justice Department pointed to
Speaker 2: that Microsoft case and said that Google deploys the same
Speaker 2: playbook as Microsoft did. How much does this case borrow
Speaker 2: from the Microsoft case or echo the Microsoft case.
Speaker 4: I think there are a lot of similarities. You know, Microsoft,
Speaker 4: a lot of the exclusionary work was done by exclusive
Speaker 4: contracts that they had with service providers, with cool so forth.
Speaker 4: They paid the money, So there are a lot of
Speaker 4: factual similarities. I don't think there's the same sort of
Speaker 4: technicological effort of tying Google Search to something, which is
Speaker 4: what Microsoft did with the Internet Explorer browser. But it's
Speaker 4: quite similar. And the District Court has already followed the
Speaker 4: legal playbook as well. I mean, the government, i think,
Speaker 4: has tried to say, hey, this is Microsoft, and you
Speaker 4: know how that came out, and legally, the district court
Speaker 4: judges already followed the way the Court of Appeals set
Speaker 4: out the structure for analyzing the problem. The district Court
Speaker 4: has already chosen that in the earlier decision that made
Speaker 4: the case. So Microsoft is going to be very important
Speaker 4: in this case. But you know, in the end, facts
Speaker 4: are very important. So we'll see yet how the judge
Speaker 4: feels about the arguments on default and how much of
Speaker 4: the market was really foreclosed by this or you know,
Speaker 4: how you figure that out. So that's yet to be seen.
Speaker 2: Yes, a lot more to come. This is just the
Speaker 2: first stage of the trial and the judge isn't expected
Speaker 2: to make a decision until next year. If he finds
Speaker 2: that Google broke the law, then a second phase will
Speaker 2: determine remedies. So will surely be talking to you again, Harry,
Speaker 2: Thanks so much. That's Professor Harry First of NYU Law School.
Speaker 2: Coming up next a decision limiting administration officials communications with
Speaker 2: social media companies. I'm June Grosse. When you're listening to Bloomberg, this.
Speaker 1: Is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2: The Supreme Court has paused a ruling that restricts the
Speaker 2: Biden administration's contacts with social media companies. The administrative stay
Speaker 2: granted by Justice Samuel Leto is a stopgap measure while
Speaker 2: the justices consider how to handle the First Amendment clash
Speaker 2: ruled on by the Fifth Circuit Court of Appeals last Friday.
Speaker 2: That Circuit court concluded that the Biden White House, the
Speaker 2: Surgeon General, the CDC, and the FBI likely violated free
Speaker 2: speech rights by coercing social media platforms to take down
Speaker 2: posts on their sites at times with intimidating messages and
Speaker 2: threats of adverse consequences. White House Press Secretary Karine Jean
Speaker 2: Pierre has said that communications by Biden officials with the
Speaker 2: social media companies was not coercive.
Speaker 3: We have promoted responsible actions to protect public health, safety,
Speaker 3: and security when confronted by challenges like a deadly pandemic
Speaker 3: and foreign attacks on our elections, and we have consistently
Speaker 3: made clear that we believe social media companies have a
Speaker 3: critical responsibility to take account of the effects of their
Speaker 3: platforms that they have on the American people while making
Speaker 3: independent decisions about the content of their platforms.
Speaker 2: Joining me is Professor Eric Goleman of the Santa Clara
Speaker 2: University School of Law. He's also a co director of
Speaker 2: the High Tech Law Institute. Eric what was the main
Speaker 2: issue in the Fifth Circuit case.
Speaker 5: The basic question is when were conversations that were taking
Speaker 5: place between the government and social media services becoming so
Speaker 5: coersive or so directed that the social media services were
Speaker 5: doing the government's bidding and removing content at their direction.
Speaker 2: Did the Fifth Circuit find that there were actual threats
Speaker 2: made to social media companies?
Speaker 5: It did, But the threats are always a little bit vague.
Speaker 5: It's not always as easy as you must do X
Speaker 5: or we will throw you in jail. The threats are
Speaker 5: often more indirect, and that's one of the many challenges
Speaker 5: from this opinion. It wasn't entirely clear to me exactly
Speaker 5: which threats mattered, were when they even became threats, and.
Speaker 2: What did the injunction specifically prohibit Biden administration officials from doing.
Speaker 5: The actual implementation of the injunction is no more clear
Speaker 5: than before the opinion. What the court said is that
Speaker 5: certain branch of the government, specifically they called out the
Speaker 5: White House and the FBI must comply with the rules
Speaker 5: articulated in the court. But the Court didn't provide concrete
Speaker 5: boundaries around those rules, simply said you must comply with
Speaker 5: the Constitution. So, in a sense, I don't know how
Speaker 5: the executive branches are going to implement what the court's
Speaker 5: ordering them to do because it's saying comply with the Constitution.
Speaker 5: But obviously, the people who made the decision in the
Speaker 5: first place weren't clear what was constitutional what wasn't, and
Speaker 5: I don't know they're ingclearer now.
Speaker 2: It also says they can't significantly encourage platforms to remove
Speaker 2: lawful content. So what does significantly encourage mean exactly?
Speaker 5: That's the point. The significant encouragement is the boundary around
Speaker 5: the constitutional protections. In other words, if they're significantly encouraging
Speaker 5: the removal of constitutional content that's not constitutional, that's a
Speaker 5: violation of the First Amendment. However, what constitutes this significant
Speaker 5: encouragement is not made clear by the opinion. They do
Speaker 5: point to a few examples, but I don't think I
Speaker 5: would know how to actually interpret that language. And so
Speaker 5: what's likely to happen is that if this opinion stands,
Speaker 5: the regulated entities are going to become far less conversational
Speaker 5: with the social media services. They're not going to take
Speaker 5: a chance about violating the rule. So the court standard
Speaker 5: actually clears out a lot of permitted behavior today. Because
Speaker 5: the boundary is so unclear, people are going to err
Speaker 5: on the side of being cautious.
Speaker 2: Well, that's what the Republicans who brought this case want,
Speaker 2: isn't it. The Missouri ag Andrew Bailey, said that the
Speaker 2: ruling was another brick in the wall of separation between
Speaker 2: tech and state.
Speaker 5: No doubt many people wish that the government would not
Speaker 5: be in conversations with social media services, and yet the
Speaker 5: court's opinion really cuts the shut over dialogues that take
Speaker 5: place every day, all the time throughout our entire country
Speaker 5: between governments and private entities, not just social media services.
Speaker 5: This concern about significant encouragement or coercion and comes up
Speaker 5: across the board in lots of spaces, and the quest
Speaker 5: standard puts potentially many or all of those in play.
Speaker 5: Opens up the door for lots of people to challenge
Speaker 5: government conversations that are just in the public health and
Speaker 5: safety interest. Gom's just trying to do its job to
Speaker 5: protected citizens, and now this court casts a doubt on
Speaker 5: the legitimacy of those efforts.
Speaker 2: The Biden administration had said that it was pushing social
Speaker 2: media companies to just adhere to their own rules about content.
Speaker 2: Did you see a First Amendment violation here?
Speaker 5: There's no doubt that some individual employees of the government
Speaker 5: pushed the frontiers, perhaps to or over the limit. That's
Speaker 5: just the nature of individual government employees so zealously trying
Speaker 5: to do their job, they might get a little bit excited.
Speaker 5: Having said that, I think that overall a number of
Speaker 5: the social media services appreciate the feedback from the government.
Speaker 5: They want to hear from the government because the government
Speaker 5: sees things that they don't or is a good neutral
Speaker 5: source of assessing risks in the community that need to
Speaker 5: be addressed, and so it's helpful for the social media
Speaker 5: services to hear from the government. The risk that the
Speaker 5: government is assessing what might be done to address those risks.
Speaker 5: That's actually helpful and that informs the social media service's
Speaker 5: own independent turtle discretion. So the line between that kind
Speaker 5: of activity and the overzealous pushing by some government employees
Speaker 5: is really thin. And we want fewer of the overzeala's stuff,
Speaker 5: but we definitely want the other stuff to continue. And
Speaker 5: that's the part that I don't think the government employees
Speaker 5: are going to know where they are on that spectrum.
Speaker 2: I thought it was interesting that doctor Anthony Fauci, who
Speaker 2: came under such criticism from conservatives during COVID, you know,
Speaker 2: the Fifth Circuit said, no, he did, Okay, he was fine.
Speaker 5: Yeah. I think the Fifth Circuit was trying not to
Speaker 5: engage in partisan politics. Fauci was the targeted conservative iyre,
Speaker 5: and so they weren't pandering to that ire. And yet
Speaker 5: the entire structure of the opinion really does validate a
Speaker 5: lot of the conservative objectives in a way that I
Speaker 5: think fundamentally on their minds. Part of the health and safety.
Speaker 5: So it's kind of like, what do we really want
Speaker 5: from the government, And I don't know that I share
Speaker 5: the Fifth Circus vision of what it wants from the government.
Speaker 2: I always point out that the Fifth Circuit is considered
Speaker 2: the most conservative appellate court in the country, and we've
Speaker 2: seen these judges make rulings that were outliers before, and
Speaker 2: it's getting reversed by the Supreme Court more than it
Speaker 2: used to.
Speaker 5: Well, the good news is that this particular opinion fixed
Speaker 5: an even worse District Court opinion that was a true outlier,
Speaker 5: and even that opinion was too much for the Fifth Circuit.
Speaker 5: They could not stand behind this opinion that had just
Speaker 5: gone rogue on the rule of law. So In that sense,
Speaker 5: the Fifth circu opinion is definitely better than the District
Speaker 5: Court opinion that preceded it. And yet I don't know
Speaker 5: what would happen if the Fifth Circuit opinion is appealed
Speaker 5: to the Supreme Court.
Speaker 2: The Biden administration told the Supreme Court it's going to
Speaker 2: ask the court to take the case on appeal, and
Speaker 2: in the meantime, Justice Samuel Alito granted the government's request
Speaker 2: for a temporary stay. Does the Justice Department have a
Speaker 2: good argument for the court to take this case.
Speaker 5: The opinion, Although it narrowed the injunction quite a bit,
Speaker 5: it still leaves a core injunction against key executive branch agencies,
Speaker 5: restricting their ability to do their job and leaving such
Speaker 5: ambiguity about how they can do their job that it
Speaker 5: seems like they need the Supreme Court to give the
Speaker 5: government more guidance. It wouldn't surprise me if the states
Speaker 5: that are the plaintiffs in this case also appeal the
Speaker 5: ruling because they want to pick up the stuff they
Speaker 5: had gotten in the District Court that the Fifth Circuit
Speaker 5: took away. So it's entirely possible both sides will be
Speaker 5: encouraged in the Supreme Court to take this case.
Speaker 2: And we'll know more by next Friday when Alito's stay ends.
Speaker 2: Thanks Eric, that's Professor Eric Goleman of the Santa Clara
Speaker 2: University School of Law. Coming up next, Justice Alito refuses
Speaker 2: to recuse. I'm June Grosso and you're listening to Bloomberg.
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2: At a judicial conference in August, Justice Elena Kagan was
Speaker 2: asked about Congress's power to check the Supreme Court.
Speaker 6: It just can't be that the Court is the only
Speaker 6: institution that somehow is not subject to any checks and
Speaker 6: balances from anybody else. I mean, we're not imperial, and
Speaker 6: we too are a part of a checking and balancing
Speaker 6: system in various ways. So can Congress do various things
Speaker 6: to regulate the Supreme Court? I think the answer is yes.
Speaker 2: Justice Kagan's answer may have been yes, but Justice Samuel
Speaker 2: Alito's answer was no. In a July interview for The
Speaker 2: Wall Street Journal, Alito said Congress did not have the
Speaker 2: power to impose an ethics code on the Supreme Court.
Speaker 2: That interview has now led to calls for Alito to
Speaker 2: recuse himself. Not because of the content of the piece,
Speaker 2: but because one of the writers is an attorney involved
Speaker 2: in a major tax case coming before the court this term.
Speaker 2: Alito has refused to recuse himself, explaining why in an
Speaker 2: unusual statement released by the Court last Friday, joining me
Speaker 2: is constitutional law scholar David Souper, a professor at Georgetown
Speaker 2: Law School, tell us a little more about the background
Speaker 2: of this recusal dispute.
Speaker 7: Certainly, Justice Alito perceived correctly that he was under considerable
Speaker 7: criticism in the media and responded in a number of ways,
Speaker 7: partly by writing an op ed defending himself and partly
Speaker 7: by giving two interviews to a lawyer who was interviewing
Speaker 7: him for the Wall Street Journal. That lawyer is now
Speaker 7: one of the lawyers behind an effort to have large
Speaker 7: chunks of our tex system declared unconstitutional, that is in
Speaker 7: front of the court. Several people, including a number of Senators,
Speaker 7: have suggested that Justice Alto should refuse himself because of
Speaker 7: the ties to the lawyer who twice interviewed him, and
Speaker 7: Justice Alito has said he will do no such things.
Speaker 2: A group of Democrats, led by Senatjudiciary chaired Dick Durbin,
Speaker 2: call for his recusal in a letter to the Chief Justice,
Speaker 2: and Alito attached his statement in response to a Supreme
Speaker 2: Court orders list, And if you look at it quickly,
Speaker 2: it looks like a decision of the court, complete with footnotes.
Speaker 2: How unusual is it on a scale of.
Speaker 7: One to ten, pretty close to a ten. I think
Speaker 7: you can get to a ten if you come by
Speaker 7: in the very unusual form, and that the content is
Speaker 7: also extremely strange.
Speaker 2: He said that there was nothing out of the ordinary
Speaker 2: about the interviews in question, and then he refers to
Speaker 2: in footnotes interviews that various justices have done with members
Speaker 2: of the media and says, well, they didn't recuse themselves
Speaker 2: when cases involving those media entities came before the court.
Speaker 2: But I don't know of any case where the journalists
Speaker 2: then came before the court.
Speaker 7: I don't either. It's also pretty unusual because Justice Alito
Speaker 7: himself described this PR campaign as his self defense. Judges
Speaker 7: talked to journalists to educate the public about the law
Speaker 7: all the time, that's all fine, but he said that
Speaker 7: no one was defending him, so he would have to
Speaker 7: defend himself and launched this PR campaign. The lawyer in
Speaker 7: this case helped to him with his pr campaign. Something
Speaker 7: that people in this town pay tens and hundreds of
Speaker 7: thousands of dollars for was given to him free, and
Speaker 7: then this lawyer who did this enormous favor to him
Speaker 7: is arguing a case in front of the court that's
Speaker 7: unprecedented to my knowledge.
Speaker 2: There's also the fact that when the first article was
Speaker 2: published in April, the justices hadn't yet agreed to hear
Speaker 2: the case. They agreed in June, and then the second
Speaker 2: article was published in July. So the timing alone gives
Speaker 2: the appearance of impropriety.
Speaker 7: Well, any participation, whether it's in considering whether to take
Speaker 7: the case or in deciding it, is improper if you
Speaker 7: have a conflict of interest, and when someone has just
Speaker 7: provided you services which, by your own admission, you felt
Speaker 7: you badly needed, and those services have enormous value. That's
Speaker 7: precisely why we have conflict of interest law. There's nothing
Speaker 7: wrong with his getting these services. He just shouldn't participate
Speaker 7: in a case that being litigated by the person who
Speaker 7: provided them.
Speaker 2: Something he said is something that I think Justice Thomas
Speaker 2: has said too, which to me, this is the point
Speaker 2: about ethics. He said they didn't discuss the tax case,
Speaker 2: either directly or indirectly. Well, I mean, that's not the point,
Speaker 2: is it, whether they discuss the case.
Speaker 7: Well, that's certainly not the point. I mean, if a
Speaker 7: lawyer in the case had given a car or a
Speaker 7: house to a Supreme Court justice while not discussing the
Speaker 7: case they were litigating, that justice should still refuse themselves
Speaker 7: from the case that that lawyer was arguing, because they
Speaker 7: obviously owe the lawyer or something and will have a
Speaker 7: temptation to repay it.
Speaker 2: Judiciary Chairman Dick Durbin's response was quote Justice Alito, of
Speaker 2: the originalist school of thinking that empty seats on an
Speaker 2: airplane don't count as gifts, surprises no one by sitting
Speaker 2: on a case involving a lawyer who honored him with
Speaker 2: a puff piece in the World Street Journal that referred
Speaker 2: to Alito accepting a trip to a luxury fishing lodge
Speaker 2: in Alaska from wealthy Republican donors. But there have been
Speaker 2: a string of ethical lapses by some of the justices,
Speaker 2: especially Clarence Thomas.
Speaker 7: Yes, this one, though, is really more striking because Justice
Speaker 7: Alito is saying that he should be able to rise
Speaker 7: above his debt that he owes this lawyer and decide
Speaker 7: the case fairly, which shows a fundamental misunderstanding of conflicts
Speaker 7: of interest law. The whole point of conflicts of interest
Speaker 7: law is that we don't want to ask people to
Speaker 7: rise above their conflicts, and we don't want to ask
Speaker 7: the public to trust that that has happened. Instead, we
Speaker 7: eliminate the conflicts by having people who are conflicted not
Speaker 7: involved in cases and with judges, the goal is to
Speaker 7: avoid the appearance of impropriety.
Speaker 2: The Judiciary Chair wrote to Chief Justice Roberts, Can Roberts
Speaker 2: do anything when Alito says, nope, I'm not going to
Speaker 2: recuse myself.
Speaker 1: Yeah.
Speaker 7: The Chief Justice, combined with the other justice can do
Speaker 7: quite a great deal. Towards the end of Justice Douglas's
Speaker 7: service on the Court, the other justice concluded that he
Speaker 7: didn't have enough mental acuity to make responsible decisions, so
Speaker 7: they informally agreed that they would not decide any case
Speaker 7: in which his was the fifth vote. The other justices
Speaker 7: can similarly decide that they will not decide any case
Speaker 7: in which Justice Alito's is the fifth vote, or they
Speaker 7: could simply vote to reject this case because they can't
Speaker 7: hear it in impartial circumstances. It's called dismissed as improvidently
Speaker 7: granted or dig. They can dig the case to prevent
Speaker 7: Justice Alito from participating in it. But this goes way
Speaker 7: beyond Justice Alito or Justice Thomas, other justices, and it
Speaker 7: only takes five of them to make an order. They
Speaker 7: can adopt an ethics code, they can adopt rules for accusal,
Speaker 7: and it does not have to be unanimous. Many orders
Speaker 7: of the Court, of course, are not unanimous, so the
Speaker 7: others haven't need to step up. If they want the
Speaker 7: public to respect the Court and if they want the
Speaker 7: Court to do its business in a way that's worthy
Speaker 7: of the public's competence.
Speaker 2: It seems like a three prong problem. You have the
Speaker 2: court's ethics controversies, you have the limited transparency at the court,
Speaker 2: and then you have also these far reaching rulings that
Speaker 2: bring the public's attention to the Court and its power.
Speaker 7: Yeah, and that's the combination. Now, there's a majority of
Speaker 7: the Court that is very conservative, and even on a
Speaker 7: case that neither Justice Thomas nor Justice Leader were participating in,
Speaker 7: there would still be a conservative majority on the Court.
Speaker 7: The question is, why do they insist on proceeding in
Speaker 7: a way that is, at once they're in bold and
Speaker 7: at the same time raises serious ethical questions, and that's
Speaker 7: very hard to understand. And then why the other justices
Speaker 7: don't seem to see this is the problem worth addressing
Speaker 7: is also hard to understand.
Speaker 2: You talked about the various things that could be done
Speaker 2: by the Supreme Court justices, But do you think that
Speaker 2: anything will really be done in the end about either
Speaker 2: just As Alito or just As Thomas by the Court itself.
Speaker 7: I don't think they'll take action directly against them. That's
Speaker 7: not how I close system like the Supreme Court typically works.
Speaker 7: But I think they might very well establish a code
Speaker 7: of ethics going forward. It won't deal with all the
Speaker 7: problems we've had, it won't deal with how much, particularly
Speaker 7: these two justices have committed themselves to a narrow set
Speaker 7: of right wing billionaires, but it can limit what happens
Speaker 7: going forward and hopefully keep this sort of thing from
Speaker 7: snowballing as it obviously has with these two justices.
Speaker 2: Well, we'll see if this is the last word on
Speaker 2: Justice Alito's recusal or not. Thanks so much, David. That's
Speaker 2: Professor David super of Georgetown Law School coming up. Next
Speaker 2: on the Bloomberg Law Show, a controversial appellate court ruling
Speaker 2: that the Biden administration coerced social media platforms to take
Speaker 2: down posts on their sites. I'm Junengrosso and you're listening
Speaker 2: to Bloomberg.
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 3: The money is there, the cause is righteous, the world
Speaker 3: is watching, and the UAW is ready to stand up.
Speaker 1: This is our defining moment.
Speaker 2: It certainly was an unprecedented moment, as the United Auto
Speaker 2: Workers went on strike Friday against all three Detroit automakers,
Speaker 2: a strategy announced by its president Sean Fain. Of course,
Speaker 2: Tesla doesn't have to worry about strikes. It's the the
Speaker 2: only major US auto manufacturer not represented by a union.
Speaker 2: The electric car makers legal disputes over union organizing are
Speaker 2: no secret, and the legal fight over Tesla's ban on
Speaker 2: workers wearing union shirts on its electric car production line
Speaker 2: has reached the Fifth Circuit Court of Appeals. Joining me
Speaker 2: is labor law expert Kate Andreas, a professor at Columbia
Speaker 2: Law School. Kate is a ban on union shirts unusual.
Speaker 2: I mean a lot of places even require uniforms.
Speaker 8: Since the nineteen forties. The NLRB has held, with Supreme
Speaker 8: Court approval that workers are allowed to wear union insignia,
Speaker 8: including union T shirts, unless there's a special business reason
Speaker 8: for an employer to prohibit it. So it is the
Speaker 8: case that a lot of employers have uniform requirements, but
Speaker 8: they have to permit workers to wear union buttons, union stickers,
Speaker 8: union shirts unless there's some business reason why doing so
Speaker 8: is trumental to the business. The board has recognized that
Speaker 8: showing your support for the union is an important part
Speaker 8: of how workers organized unions, and it's an important part
Speaker 8: of workers right to expression at work right. It's their
Speaker 8: right to communicate their support for the union, and that
Speaker 8: is protected by the NRA.
Speaker 2: Did a factor in it all that Tesla adopted this
Speaker 2: policy in twenty seventeen during a campaign by the UAW
Speaker 2: to organize production workers.
Speaker 8: The Tesla's position was that ad adopted the ban because
Speaker 8: there were problems with production, that Tesla vehicles were getting
Speaker 8: harmed in some way in production, so it tightened up
Speaker 8: this uniform rules. But what the board said was, well,
Speaker 8: if you had, for example, made a progression on wearing
Speaker 8: sharp implements, that would be understandable, right because you might
Speaker 8: rip a our speed if you're wearing a sharp implement.
Speaker 8: But what you can't do is adopt a rule that
Speaker 8: there's no special business reason for it, And you certainly
Speaker 8: can't do it if there's the possibility that you're doing
Speaker 8: it in order to coerce workers and exercise of their
Speaker 8: union organizing rights, that you're trying to discriminate against union activity.
Speaker 8: But even if it's adopted for other reasons, it's not
Speaker 8: permissible unless the employer can show that there's a need
Speaker 8: for it.
Speaker 2: But it seemed like the Fifth Circuit judges were concentrating
Speaker 2: on the difference between dress codes that don't allow any
Speaker 2: expression of union support and those like Tesla's that permit
Speaker 2: workers to wear union stickers and the like. One of
Speaker 2: the judges said, a sticker says go union, union is
Speaker 2: good or whatever. In what way is that an insufficient
Speaker 2: means of communication? So were these judges ignoring that precedent
Speaker 2: you just told us about.
Speaker 8: Right, So one of the judges seem to be saying,
Speaker 8: if the employer gives workers some way to communicate their support,
Speaker 8: that's enough that the employer gets to decide how workers
Speaker 8: can communicate their support for the union. That is not
Speaker 8: what the precedent has held since nineteen forty five. Other
Speaker 8: than that brief period during the Trump administration. Since nineteen
Speaker 8: forty five, the Board has said the employer doesn't get
Speaker 8: to decide that it doesn't like union shirts or it
Speaker 8: doesn't like union buttons unless there's a business reason for that.
Speaker 8: So if the Fifth Circuit ends up adopting the reasoning
Speaker 8: that was suggested in oral arguments, that would be a
Speaker 8: real retrenchment of where workers' rights have been for a
Speaker 8: long time.
Speaker 2: I find it surprising that Tesla would bother to go
Speaker 2: through these appeals and everything over this issue when I'm
Speaker 2: missing something.
Speaker 8: I think there are two things going on. One is
Speaker 8: that employers like Tesla do everything they can to try
Speaker 8: to stop workers from organizing unions. And so in every case,
Speaker 8: if they're able to exert more authority over the workplace
Speaker 8: and narrow the ability of workers to engage in organizing
Speaker 8: activity that is very important to them that precedent for
Speaker 8: user cases, it sends a message to workers, even if
Speaker 8: it doesn't set precedent, that it's going to be very
Speaker 8: different to win a union. And so I think that
Speaker 8: explains why Tesla's pursuing what seems like a relatively minor issue.
Speaker 2: Thanks Kate. That's Professor Kate Andreas of Columbia Law School.
Speaker 2: This is Bloomberg Law on Bloomberg Radio. I'm June Grosso.
Speaker 2: Stay with us. Today's top stories and global business headlines
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