WEBVTT - Bloomberg Law Weekend: Google, Tesla, Alito 0:00:02.040 --> 0:00:03.800 This is Bloomberg Law. 0:00:03.920 --> 0:00:06.760 What does a prosecutor have to prove in order to 0:00:06.760 --> 0:00:09.959 get a Rico conviction? Tell us why this solicitor General 0:00:10.000 --> 0:00:12.280 is sometimes referred to as the tenth Justice. 0:00:12.320 --> 0:00:15.520 Interviews with prominent attorneys in Bloomberg Legal Experts. 0:00:15.560 --> 0:00:18.360 That's Jennifer k for Bloomberg Law. Joining me is former 0:00:18.440 --> 0:00:20.160 federal prosecutor Robert miss. 0:00:20.040 --> 0:00:23.200 And analysis of important legal issues cases in headlines. 0:00:23.239 --> 0:00:27.040 It's the toughest hurdle for prosecutors proving Trump's intent. Alito 0:00:27.120 --> 0:00:30.479 took on Congress, saying Congress has no power to regulate 0:00:30.520 --> 0:00:31.520 the Supreme Court. 0:00:31.520 --> 0:00:34.640 Bloomberg Law with June Grosso from Bloomberg Radio. 0:00:38.360 --> 0:00:41.600 Welcome to the Bloomberg Law Show. I'm June Grosso. Ahead 0:00:41.600 --> 0:00:45.680 in this hour a landmark anti trust case against Google, 0:00:46.120 --> 0:00:52.480 the controversial decision limiting the administration's communications with social media companies. 0:00:53.159 --> 0:00:56.960 Justice Alito rejects calls for his recusal in a major 0:00:57.080 --> 0:01:01.200 tax case, and Tesla's ban on US union shirts goes 0:01:01.400 --> 0:01:06.160 all the way to a federal appellate court. The United 0:01:06.200 --> 0:01:10.839 States versus Google, the first trial pitting the federal government 0:01:10.920 --> 0:01:14.720 against a US technology company in more than two decades, 0:01:14.880 --> 0:01:18.639 began in a DC federal court on Tuesday. The Justice 0:01:18.680 --> 0:01:23.679 Department and state attorneys general alleged that Google illegally monopolized 0:01:23.680 --> 0:01:27.160 the online search market by paying billions of dollars to 0:01:27.280 --> 0:01:32.200 tech rival smartphone makers and wireless providers in exchange for 0:01:32.319 --> 0:01:36.160 being the default search engine on browsers and mobile devices. 0:01:36.400 --> 0:01:40.360 But Google's top lawyer, Can't Walker, told CBS News that 0:01:40.480 --> 0:01:44.240 consumers use the search engine because it's helpful and it's 0:01:44.280 --> 0:01:46.520 easy to switch to another search engine. 0:01:46.720 --> 0:01:47.880 It really couldn't be easier. 0:01:48.240 --> 0:01:50.600 You can sit at home on your couch and change 0:01:50.600 --> 0:01:51.840 what search engine you're using. 0:01:52.040 --> 0:01:53.480 It's as easy as changing your shoes. 0:01:53.840 --> 0:01:57.320 My guest is antitrust expert Harry First, a professor at 0:01:57.440 --> 0:02:00.920 NYU Law School. Harry, just how important is this case? 0:02:01.320 --> 0:02:05.880 This is an important case, at least symbolically and maybe practically. 0:02:06.040 --> 0:02:09.720 So symbolically it's important. It is the first case in 0:02:10.240 --> 0:02:15.440 more than two decades to challenge a durable, high tech monopoly. 0:02:15.600 --> 0:02:18.160 So the last case was brought in May of nineteen 0:02:18.280 --> 0:02:21.239 ninety eight, so that's a quarter of a century since 0:02:21.280 --> 0:02:24.680 the last one, and that was against Microsoft, and since 0:02:24.720 --> 0:02:30.480 that time nothing, So it is symbolically important because it 0:02:30.600 --> 0:02:34.240 shows the federal government and the state any trust enforces 0:02:34.400 --> 0:02:38.120 turning their attention to big power in our economy. 0:02:38.440 --> 0:02:41.359 The government says that Google paid more than ten billion 0:02:41.480 --> 0:02:45.720 dollars a year for exclusive agreements to make Google the 0:02:45.760 --> 0:02:49.480 default search engine on mobile phones and browsers. Is there 0:02:49.560 --> 0:02:52.320 anything wrong with that with the company saying I'll pay 0:02:52.360 --> 0:02:54.800 you if you do this and we both benefit. 0:02:55.080 --> 0:02:57.800 Well, the definition of an agreement is we both benefit. 0:02:58.080 --> 0:03:03.640 So the question is whether these agreements helped to maintain 0:03:03.840 --> 0:03:08.160 Google's monopoly position. So firms entered into lots of agreements 0:03:08.240 --> 0:03:12.040 across the economy, of course, and most of them are lawful. 0:03:12.320 --> 0:03:15.880 But when it comes to monopoly firms, firms that have 0:03:15.919 --> 0:03:23.600 a monopoly position, they can't use agreements to unreasonably exclude competitors. 0:03:24.000 --> 0:03:27.720 And that's what the government plaintiffs are arguing that these 0:03:27.960 --> 0:03:34.800 agreements unreasonably excluded good competitors who were foreclosed from, you know, 0:03:34.880 --> 0:03:38.880 getting their search engines in front of consumers so they 0:03:38.880 --> 0:03:42.400 could use them, and so that they could get more 0:03:42.440 --> 0:03:46.440 and more searches done on them and continuously do what 0:03:46.600 --> 0:03:49.640 Google had been able to do. And they were monopolists. 0:03:49.680 --> 0:03:52.600 More and more data, more and more data, and so 0:03:53.080 --> 0:03:56.280 get better results, have a better search engine. So the 0:03:56.400 --> 0:04:00.640 argument is that they excluded competitors through these agreements. 0:04:01.280 --> 0:04:06.240 In the opening statements, Google's lawyer argued that consumers don't 0:04:06.360 --> 0:04:09.720 use Google because they have to. They use it because 0:04:09.800 --> 0:04:12.600 they want to, and if they want to switch, it's 0:04:12.680 --> 0:04:14.080 easy enough, right. 0:04:14.240 --> 0:04:18.520 So that is a factual argument in essence, but it's 0:04:18.560 --> 0:04:21.920 also an appeal to framing the case in a way 0:04:21.960 --> 0:04:24.920 favorable to Google and in a way that they hope 0:04:24.960 --> 0:04:28.520 will appeal to the judge. So Google's basic argument is, 0:04:28.800 --> 0:04:31.480 are you kidding me? This is the greatest product ever? 0:04:31.800 --> 0:04:34.599 Why do people use it? You know, nobody's holding a 0:04:34.640 --> 0:04:37.920 gun to their head. They use it because it's darn good. 0:04:38.360 --> 0:04:42.480 And you know, nothing is stopping consumers from changing those 0:04:42.560 --> 0:04:45.400 the falls. They could do it. You know it's easy 0:04:45.520 --> 0:04:48.039 enough to do, So tell me why they don't do it. 0:04:48.160 --> 0:04:50.160 I'll tell you why they don't do it. They don't 0:04:50.200 --> 0:04:53.320 do it because they get a great product and they're 0:04:53.320 --> 0:04:55.960 happy with it. And in the end, Google says, and 0:04:56.040 --> 0:04:59.320 this is true, the purpose of the any trust laws 0:04:59.440 --> 0:05:03.160 is to serve consumers. That's what markets are for, and 0:05:03.240 --> 0:05:06.760 consumers are being very well served. So why are you bringing. 0:05:06.480 --> 0:05:07.200 This case government? 0:05:07.760 --> 0:05:10.360 Is that the only argument you think they're going to make. 0:05:10.600 --> 0:05:13.640 Well, there are lots of legal arguments along the way. 0:05:14.279 --> 0:05:18.440 They may argue that search actually isn't a product because 0:05:18.520 --> 0:05:21.600 it's on price free. You know, you can't raise its price. 0:05:21.640 --> 0:05:24.120 You can't lower its price the product if there's a 0:05:24.160 --> 0:05:27.120 product involved as advertising, you know, and then what's the 0:05:27.200 --> 0:05:31.440 advertising market? They'll argue that, okay, if search is a product, 0:05:31.680 --> 0:05:34.720 you know, there are lots of ways to search for information. 0:05:35.120 --> 0:05:37.039 Even on the Internet. There are lots of ways to 0:05:37.080 --> 0:05:41.119 search for information. So for example, you know, people search 0:05:41.160 --> 0:05:45.320 for information on TikTok. Maybe not you or me, but 0:05:45.560 --> 0:05:50.800 younger people do. People search for information on Amazon, you know, 0:05:50.880 --> 0:05:53.160 if they are looking for a product, lots of people 0:05:53.440 --> 0:05:55.200 just go right to Amazon and look for it. They 0:05:55.200 --> 0:05:57.440 don't look for it on Google. So there are lots 0:05:57.480 --> 0:06:00.719 of different ways to search for things, and Google is 0:06:01.080 --> 0:06:04.800 if search is a product, Google doesn't control it. Consumers 0:06:04.839 --> 0:06:08.000 control it. They those keyboards and make their choices. 0:06:08.520 --> 0:06:12.040 The judge asked Google's lawyer to respond to the Justice 0:06:12.080 --> 0:06:16.159 Department's allegation that quote, what you say, our competition for 0:06:16.279 --> 0:06:20.640 defaults are not really competition at all that. Really, only 0:06:20.760 --> 0:06:25.240 Google can be selected for the default. Explain why that's important. 0:06:25.560 --> 0:06:29.599 So Google was selected for the default because they paid 0:06:29.640 --> 0:06:32.039 for it in one way or another, either through the 0:06:32.080 --> 0:06:34.839 revenue share or for saying, you know, if you want 0:06:35.000 --> 0:06:37.400 all these apps, you've got to make it a default, 0:06:37.520 --> 0:06:41.080 or they paid Apple large sums of money. The question 0:06:41.320 --> 0:06:46.159 is more, what does a default mean? Default is an exclusivity. 0:06:46.200 --> 0:06:49.560 It's just the start, It's where things start. It's default. 0:06:49.920 --> 0:06:53.159 So you know, Google wants to say, there's still plenty 0:06:53.160 --> 0:06:56.960 of consumer choice. So Google isn't controlling it. Consumers are 0:06:56.960 --> 0:06:59.680 controlling it. I think the judge has already shown a 0:06:59.680 --> 0:07:04.719 little skepticism about an argument that the faults don't matter, 0:07:05.200 --> 0:07:08.000 which is I think what Google wants to say, You know, 0:07:08.040 --> 0:07:10.680 they don't matter because they're changeable. And I think, you know, 0:07:10.720 --> 0:07:14.880 the judge is my recollection was pressing Google's council already 0:07:14.920 --> 0:07:18.560 for saying, well, give me some examples to consumers changing. 0:07:19.160 --> 0:07:21.760 Harry as a lawyer, which side would you rather be on, 0:07:22.000 --> 0:07:23.440 the governments or Googles? 0:07:24.240 --> 0:07:27.560 I think the government's case is strong. Actually now, I 0:07:27.600 --> 0:07:30.400 say that in part because there's been a test run. 0:07:30.480 --> 0:07:34.880 In a way the European Commission already found a lot 0:07:34.920 --> 0:07:39.880 of this stuff to be in European competitional abusive dominance, 0:07:40.160 --> 0:07:44.760 the agreements relating to mobile distribution, not the browser part. 0:07:45.320 --> 0:07:48.960 And you know, one good reasoning that doesn't compel the 0:07:49.000 --> 0:07:52.400 same results in the United States, but it's pretty similar. 0:07:52.440 --> 0:07:55.160 It's similar to arguments that were made in the Microsoft 0:07:55.200 --> 0:08:01.920 case about contracts that were exclusive and effectively excluded Netscape 0:08:02.000 --> 0:08:04.880 the browser, even though you know you could still get 0:08:04.880 --> 0:08:08.840 a browser in different ways. Now you may remember, I remember, 0:08:09.080 --> 0:08:11.480 you know, it used to be well, if you couldn't 0:08:11.480 --> 0:08:15.040 get the browser pre installed on a Dell PC, they 0:08:15.080 --> 0:08:18.400 came in the mail. Hey, there's plenty of distribution in 0:08:18.400 --> 0:08:21.680 the court that there. You know, it doesn't have to 0:08:21.720 --> 0:08:25.360 completely foreclose you, but it just shuts off basically the 0:08:25.400 --> 0:08:29.520 most efficient way of distribution. And in that old day, 0:08:29.640 --> 0:08:33.360 the OEMs, the Dells of the world compact didn't want 0:08:33.400 --> 0:08:35.880 to put a second browser on because of cost. And 0:08:36.000 --> 0:08:39.800 here they get that same default, even though they technically 0:08:39.800 --> 0:08:42.600 don't call it exclusive. It's the same sort of thing. 0:08:42.880 --> 0:08:46.560 So I think the government has a strong case. Obviously, 0:08:46.559 --> 0:08:49.360 it's not a lay down case. I haven't heard any 0:08:49.400 --> 0:08:54.600 talk of settlement. So Google presumably feels that it might 0:08:54.640 --> 0:08:58.040 be able to win a trial, and there's a long 0:08:58.559 --> 0:09:02.480 time between here and there, As they say, before there's 0:09:02.480 --> 0:09:05.800 some resolution of this case, because this is really we're 0:09:05.920 --> 0:09:07.480 just at the beginning of it. 0:09:08.280 --> 0:09:12.120 In its lawsuit against Google, the Justice Department pointed to 0:09:12.160 --> 0:09:15.640 that Microsoft case and said that Google deploys the same 0:09:15.720 --> 0:09:21.240 playbook as Microsoft did. How much does this case borrow 0:09:21.880 --> 0:09:25.679 from the Microsoft case or echo the Microsoft case. 0:09:26.400 --> 0:09:29.880 I think there are a lot of similarities. You know, Microsoft, 0:09:30.000 --> 0:09:32.800 a lot of the exclusionary work was done by exclusive 0:09:32.880 --> 0:09:37.439 contracts that they had with service providers, with cool so forth. 0:09:37.520 --> 0:09:40.400 They paid the money, So there are a lot of 0:09:40.600 --> 0:09:43.720 factual similarities. I don't think there's the same sort of 0:09:43.760 --> 0:09:48.760 technicological effort of tying Google Search to something, which is 0:09:48.800 --> 0:09:53.520 what Microsoft did with the Internet Explorer browser. But it's 0:09:53.600 --> 0:09:56.640 quite similar. And the District Court has already followed the 0:09:56.720 --> 0:10:00.000 legal playbook as well. I mean, the government, i think, 0:10:00.080 --> 0:10:02.680 has tried to say, hey, this is Microsoft, and you 0:10:02.720 --> 0:10:05.960 know how that came out, and legally, the district court 0:10:06.040 --> 0:10:10.160 judges already followed the way the Court of Appeals set 0:10:10.200 --> 0:10:13.880 out the structure for analyzing the problem. The district Court 0:10:13.880 --> 0:10:17.800 has already chosen that in the earlier decision that made 0:10:17.880 --> 0:10:21.360 the case. So Microsoft is going to be very important 0:10:21.600 --> 0:10:24.200 in this case. But you know, in the end, facts 0:10:24.200 --> 0:10:27.000 are very important. So we'll see yet how the judge 0:10:27.080 --> 0:10:30.200 feels about the arguments on default and how much of 0:10:30.240 --> 0:10:33.600 the market was really foreclosed by this or you know, 0:10:33.640 --> 0:10:36.920 how you figure that out. So that's yet to be seen. 0:10:37.160 --> 0:10:39.200 Yes, a lot more to come. This is just the 0:10:39.240 --> 0:10:42.320 first stage of the trial and the judge isn't expected 0:10:42.360 --> 0:10:46.280 to make a decision until next year. If he finds 0:10:46.280 --> 0:10:49.680 that Google broke the law, then a second phase will 0:10:49.720 --> 0:10:53.120 determine remedies. So will surely be talking to you again, Harry, 0:10:53.160 --> 0:10:57.000 Thanks so much. That's Professor Harry First of NYU Law School. 0:10:57.440 --> 0:11:02.280 Coming up next a decision limiting administration officials communications with 0:11:02.480 --> 0:11:10.120 social media companies. I'm June Grosse. When you're listening to Bloomberg, this. 0:11:10.360 --> 0:11:14.600 Is Bloomberg Law with June Grosso from Bloomberg Radio. 0:11:15.800 --> 0:11:19.080 The Supreme Court has paused a ruling that restricts the 0:11:19.080 --> 0:11:24.640 Biden administration's contacts with social media companies. The administrative stay 0:11:24.800 --> 0:11:29.320 granted by Justice Samuel Leto is a stopgap measure while 0:11:29.360 --> 0:11:33.120 the justices consider how to handle the First Amendment clash 0:11:33.520 --> 0:11:37.320 ruled on by the Fifth Circuit Court of Appeals last Friday. 0:11:37.400 --> 0:11:40.600 That Circuit court concluded that the Biden White House, the 0:11:40.640 --> 0:11:45.959 Surgeon General, the CDC, and the FBI likely violated free 0:11:45.960 --> 0:11:50.480 speech rights by coercing social media platforms to take down 0:11:50.559 --> 0:11:54.679 posts on their sites at times with intimidating messages and 0:11:54.800 --> 0:11:59.480 threats of adverse consequences. White House Press Secretary Karine Jean 0:11:59.559 --> 0:12:03.200 Pierre has said that communications by Biden officials with the 0:12:03.280 --> 0:12:06.199 social media companies was not coercive. 0:12:06.559 --> 0:12:10.560 We have promoted responsible actions to protect public health, safety, 0:12:11.160 --> 0:12:14.960 and security when confronted by challenges like a deadly pandemic 0:12:15.000 --> 0:12:18.480 and foreign attacks on our elections, and we have consistently 0:12:18.520 --> 0:12:21.280 made clear that we believe social media companies have a 0:12:21.280 --> 0:12:25.520 critical responsibility to take account of the effects of their 0:12:25.520 --> 0:12:28.640 platforms that they have on the American people while making 0:12:28.679 --> 0:12:31.800 independent decisions about the content of their platforms. 0:12:31.960 --> 0:12:34.680 Joining me is Professor Eric Goleman of the Santa Clara 0:12:34.800 --> 0:12:38.040 University School of Law. He's also a co director of 0:12:38.080 --> 0:12:40.920 the High Tech Law Institute. Eric what was the main 0:12:40.960 --> 0:12:42.560 issue in the Fifth Circuit case. 0:12:43.200 --> 0:12:47.320 The basic question is when were conversations that were taking 0:12:47.360 --> 0:12:51.280 place between the government and social media services becoming so 0:12:51.600 --> 0:12:56.720 coersive or so directed that the social media services were 0:12:56.760 --> 0:12:59.880 doing the government's bidding and removing content at their direction. 0:13:00.440 --> 0:13:04.360 Did the Fifth Circuit find that there were actual threats 0:13:04.440 --> 0:13:06.160 made to social media companies? 0:13:06.760 --> 0:13:11.360 It did, But the threats are always a little bit vague. 0:13:11.800 --> 0:13:15.439 It's not always as easy as you must do X 0:13:15.640 --> 0:13:18.760 or we will throw you in jail. The threats are 0:13:18.800 --> 0:13:22.960 often more indirect, and that's one of the many challenges 0:13:23.040 --> 0:13:26.599 from this opinion. It wasn't entirely clear to me exactly 0:13:26.920 --> 0:13:30.920 which threats mattered, were when they even became threats, and. 0:13:30.800 --> 0:13:36.320 What did the injunction specifically prohibit Biden administration officials from doing. 0:13:36.920 --> 0:13:42.560 The actual implementation of the injunction is no more clear 0:13:42.640 --> 0:13:45.559 than before the opinion. What the court said is that 0:13:45.840 --> 0:13:48.760 certain branch of the government, specifically they called out the 0:13:48.800 --> 0:13:53.920 White House and the FBI must comply with the rules 0:13:54.000 --> 0:13:58.160 articulated in the court. But the Court didn't provide concrete 0:13:58.440 --> 0:14:01.800 boundaries around those rules, simply said you must comply with 0:14:01.840 --> 0:14:05.840 the Constitution. So, in a sense, I don't know how 0:14:06.120 --> 0:14:09.960 the executive branches are going to implement what the court's 0:14:10.080 --> 0:14:13.160 ordering them to do because it's saying comply with the Constitution. 0:14:13.240 --> 0:14:15.480 But obviously, the people who made the decision in the 0:14:15.480 --> 0:14:18.600 first place weren't clear what was constitutional what wasn't, and 0:14:18.640 --> 0:14:19.960 I don't know they're ingclearer now. 0:14:20.520 --> 0:14:24.840 It also says they can't significantly encourage platforms to remove 0:14:24.960 --> 0:14:29.920 lawful content. So what does significantly encourage mean exactly? 0:14:30.000 --> 0:14:34.680 That's the point. The significant encouragement is the boundary around 0:14:34.760 --> 0:14:39.240 the constitutional protections. In other words, if they're significantly encouraging 0:14:39.280 --> 0:14:42.800 the removal of constitutional content that's not constitutional, that's a 0:14:42.880 --> 0:14:47.360 violation of the First Amendment. However, what constitutes this significant 0:14:47.440 --> 0:14:50.920 encouragement is not made clear by the opinion. They do 0:14:51.080 --> 0:14:54.320 point to a few examples, but I don't think I 0:14:54.400 --> 0:14:57.720 would know how to actually interpret that language. And so 0:14:58.000 --> 0:15:01.880 what's likely to happen is that if this opinion stands, 0:15:02.120 --> 0:15:06.600 the regulated entities are going to become far less conversational 0:15:06.680 --> 0:15:09.000 with the social media services. They're not going to take 0:15:09.040 --> 0:15:12.960 a chance about violating the rule. So the court standard 0:15:13.000 --> 0:15:17.240 actually clears out a lot of permitted behavior today. Because 0:15:17.280 --> 0:15:19.760 the boundary is so unclear, people are going to err 0:15:19.840 --> 0:15:21.240 on the side of being cautious. 0:15:21.640 --> 0:15:24.840 Well, that's what the Republicans who brought this case want, 0:15:25.000 --> 0:15:28.960 isn't it. The Missouri ag Andrew Bailey, said that the 0:15:29.080 --> 0:15:33.200 ruling was another brick in the wall of separation between 0:15:33.400 --> 0:15:34.360 tech and state. 0:15:34.720 --> 0:15:38.400 No doubt many people wish that the government would not 0:15:38.520 --> 0:15:42.400 be in conversations with social media services, and yet the 0:15:42.600 --> 0:15:46.360 court's opinion really cuts the shut over dialogues that take 0:15:46.400 --> 0:15:51.280 place every day, all the time throughout our entire country 0:15:51.760 --> 0:15:56.160 between governments and private entities, not just social media services. 0:15:56.640 --> 0:16:00.800 This concern about significant encouragement or coercion and comes up 0:16:01.000 --> 0:16:04.640 across the board in lots of spaces, and the quest 0:16:04.640 --> 0:16:07.840 standard puts potentially many or all of those in play. 0:16:08.280 --> 0:16:11.600 Opens up the door for lots of people to challenge 0:16:11.720 --> 0:16:15.120 government conversations that are just in the public health and 0:16:15.160 --> 0:16:17.720 safety interest. Gom's just trying to do its job to 0:16:17.840 --> 0:16:21.520 protected citizens, and now this court casts a doubt on 0:16:21.560 --> 0:16:23.040 the legitimacy of those efforts. 0:16:23.240 --> 0:16:26.520 The Biden administration had said that it was pushing social 0:16:26.560 --> 0:16:31.160 media companies to just adhere to their own rules about content. 0:16:31.720 --> 0:16:34.800 Did you see a First Amendment violation here? 0:16:35.120 --> 0:16:39.840 There's no doubt that some individual employees of the government 0:16:40.200 --> 0:16:45.320 pushed the frontiers, perhaps to or over the limit. That's 0:16:45.720 --> 0:16:49.320 just the nature of individual government employees so zealously trying 0:16:49.360 --> 0:16:52.440 to do their job, they might get a little bit excited. 0:16:52.840 --> 0:16:56.280 Having said that, I think that overall a number of 0:16:56.320 --> 0:16:59.600 the social media services appreciate the feedback from the government. 0:16:59.720 --> 0:17:02.080 They want to hear from the government because the government 0:17:02.240 --> 0:17:06.600 sees things that they don't or is a good neutral 0:17:06.760 --> 0:17:10.879 source of assessing risks in the community that need to 0:17:10.920 --> 0:17:13.680 be addressed, and so it's helpful for the social media 0:17:13.720 --> 0:17:16.440 services to hear from the government. The risk that the 0:17:16.480 --> 0:17:20.000 government is assessing what might be done to address those risks. 0:17:20.240 --> 0:17:23.800 That's actually helpful and that informs the social media service's 0:17:23.920 --> 0:17:29.400 own independent turtle discretion. So the line between that kind 0:17:29.440 --> 0:17:34.840 of activity and the overzealous pushing by some government employees 0:17:35.040 --> 0:17:39.000 is really thin. And we want fewer of the overzeala's stuff, 0:17:39.000 --> 0:17:41.320 but we definitely want the other stuff to continue. And 0:17:41.359 --> 0:17:43.680 that's the part that I don't think the government employees 0:17:43.680 --> 0:17:46.240 are going to know where they are on that spectrum. 0:17:46.680 --> 0:17:50.480 I thought it was interesting that doctor Anthony Fauci, who 0:17:50.520 --> 0:17:55.719 came under such criticism from conservatives during COVID, you know, 0:17:55.760 --> 0:17:58.760 the Fifth Circuit said, no, he did, Okay, he was fine. 0:17:59.200 --> 0:18:02.040 Yeah. I think the Fifth Circuit was trying not to 0:18:02.800 --> 0:18:07.720 engage in partisan politics. Fauci was the targeted conservative iyre, 0:18:07.840 --> 0:18:11.280 and so they weren't pandering to that ire. And yet 0:18:11.520 --> 0:18:15.159 the entire structure of the opinion really does validate a 0:18:15.200 --> 0:18:17.760 lot of the conservative objectives in a way that I 0:18:17.800 --> 0:18:20.400 think fundamentally on their minds. Part of the health and safety. 0:18:20.560 --> 0:18:22.440 So it's kind of like, what do we really want 0:18:22.480 --> 0:18:24.760 from the government, And I don't know that I share 0:18:24.800 --> 0:18:27.560 the Fifth Circus vision of what it wants from the government. 0:18:27.800 --> 0:18:31.240 I always point out that the Fifth Circuit is considered 0:18:31.320 --> 0:18:34.800 the most conservative appellate court in the country, and we've 0:18:34.840 --> 0:18:39.240 seen these judges make rulings that were outliers before, and 0:18:39.800 --> 0:18:42.639 it's getting reversed by the Supreme Court more than it 0:18:42.680 --> 0:18:43.000 used to. 0:18:43.240 --> 0:18:46.320 Well, the good news is that this particular opinion fixed 0:18:46.400 --> 0:18:49.919 an even worse District Court opinion that was a true outlier, 0:18:50.080 --> 0:18:53.919 and even that opinion was too much for the Fifth Circuit. 0:18:54.000 --> 0:18:56.760 They could not stand behind this opinion that had just 0:18:56.880 --> 0:19:00.360 gone rogue on the rule of law. So In that sense, 0:19:00.359 --> 0:19:03.200 the Fifth circu opinion is definitely better than the District 0:19:03.280 --> 0:19:06.239 Court opinion that preceded it. And yet I don't know 0:19:06.280 --> 0:19:08.480 what would happen if the Fifth Circuit opinion is appealed 0:19:08.480 --> 0:19:09.520 to the Supreme Court. 0:19:09.760 --> 0:19:13.240 The Biden administration told the Supreme Court it's going to 0:19:13.280 --> 0:19:15.960 ask the court to take the case on appeal, and 0:19:16.000 --> 0:19:20.119 in the meantime, Justice Samuel Alito granted the government's request 0:19:20.480 --> 0:19:23.879 for a temporary stay. Does the Justice Department have a 0:19:23.920 --> 0:19:27.000 good argument for the court to take this case. 0:19:27.240 --> 0:19:31.080 The opinion, Although it narrowed the injunction quite a bit, 0:19:31.520 --> 0:19:36.760 it still leaves a core injunction against key executive branch agencies, 0:19:37.000 --> 0:19:41.040 restricting their ability to do their job and leaving such 0:19:41.119 --> 0:19:43.959 ambiguity about how they can do their job that it 0:19:44.200 --> 0:19:47.320 seems like they need the Supreme Court to give the 0:19:47.320 --> 0:19:51.680 government more guidance. It wouldn't surprise me if the states 0:19:51.800 --> 0:19:54.280 that are the plaintiffs in this case also appeal the 0:19:54.359 --> 0:19:56.520 ruling because they want to pick up the stuff they 0:19:56.520 --> 0:19:58.639 had gotten in the District Court that the Fifth Circuit 0:19:58.680 --> 0:20:01.399 took away. So it's entirely possible both sides will be 0:20:01.480 --> 0:20:03.520 encouraged in the Supreme Court to take this case. 0:20:03.480 --> 0:20:06.800 And we'll know more by next Friday when Alito's stay ends. 0:20:07.280 --> 0:20:10.520 Thanks Eric, that's Professor Eric Goleman of the Santa Clara 0:20:10.680 --> 0:20:15.400 University School of Law. Coming up next, Justice Alito refuses 0:20:15.520 --> 0:20:18.680 to recuse. I'm June Grosso and you're listening to Bloomberg. 0:20:22.040 --> 0:20:26.840 This is Bloomberg Law with June Grosso from Bloomberg Radio. 0:20:28.000 --> 0:20:31.600 At a judicial conference in August, Justice Elena Kagan was 0:20:31.640 --> 0:20:35.119 asked about Congress's power to check the Supreme Court. 0:20:35.359 --> 0:20:37.840 It just can't be that the Court is the only 0:20:37.960 --> 0:20:41.720 institution that somehow is not subject to any checks and 0:20:41.840 --> 0:20:46.200 balances from anybody else. I mean, we're not imperial, and 0:20:46.600 --> 0:20:49.240 we too are a part of a checking and balancing 0:20:49.280 --> 0:20:54.240 system in various ways. So can Congress do various things 0:20:54.280 --> 0:20:57.920 to regulate the Supreme Court? I think the answer is yes. 0:20:58.800 --> 0:21:02.880 Justice Kagan's answer may have been yes, but Justice Samuel 0:21:02.920 --> 0:21:06.679 Alito's answer was no. In a July interview for The 0:21:06.720 --> 0:21:10.439 Wall Street Journal, Alito said Congress did not have the 0:21:10.520 --> 0:21:13.919 power to impose an ethics code on the Supreme Court. 0:21:14.359 --> 0:21:17.359 That interview has now led to calls for Alito to 0:21:17.480 --> 0:21:20.879 recuse himself. Not because of the content of the piece, 0:21:21.119 --> 0:21:24.360 but because one of the writers is an attorney involved 0:21:24.359 --> 0:21:27.800 in a major tax case coming before the court this term. 0:21:28.000 --> 0:21:32.280 Alito has refused to recuse himself, explaining why in an 0:21:32.359 --> 0:21:36.119 unusual statement released by the Court last Friday, joining me 0:21:36.200 --> 0:21:40.000 is constitutional law scholar David Souper, a professor at Georgetown 0:21:40.080 --> 0:21:43.040 Law School, tell us a little more about the background 0:21:43.080 --> 0:21:45.240 of this recusal dispute. 0:21:45.440 --> 0:21:50.040 Certainly, Justice Alito perceived correctly that he was under considerable 0:21:50.080 --> 0:21:54.679 criticism in the media and responded in a number of ways, 0:21:54.840 --> 0:21:58.760 partly by writing an op ed defending himself and partly 0:21:58.800 --> 0:22:04.080 by giving two interviews to a lawyer who was interviewing 0:22:04.119 --> 0:22:07.919 him for the Wall Street Journal. That lawyer is now 0:22:08.280 --> 0:22:13.359 one of the lawyers behind an effort to have large 0:22:13.440 --> 0:22:17.679 chunks of our tex system declared unconstitutional, that is in 0:22:17.720 --> 0:22:21.480 front of the court. Several people, including a number of Senators, 0:22:21.480 --> 0:22:26.040 have suggested that Justice Alto should refuse himself because of 0:22:26.440 --> 0:22:30.040 the ties to the lawyer who twice interviewed him, and 0:22:30.280 --> 0:22:32.520 Justice Alito has said he will do no such things. 0:22:32.840 --> 0:22:36.359 A group of Democrats, led by Senatjudiciary chaired Dick Durbin, 0:22:36.480 --> 0:22:39.600 call for his recusal in a letter to the Chief Justice, 0:22:39.680 --> 0:22:43.840 and Alito attached his statement in response to a Supreme 0:22:43.880 --> 0:22:47.120 Court orders list, And if you look at it quickly, 0:22:47.400 --> 0:22:50.600 it looks like a decision of the court, complete with footnotes. 0:22:51.080 --> 0:22:54.400 How unusual is it on a scale of. 0:22:54.400 --> 0:22:57.760 One to ten, pretty close to a ten. I think 0:22:57.800 --> 0:22:59.920 you can get to a ten if you come by 0:23:00.119 --> 0:23:04.119 in the very unusual form, and that the content is 0:23:04.160 --> 0:23:05.840 also extremely strange. 0:23:06.080 --> 0:23:09.080 He said that there was nothing out of the ordinary 0:23:09.200 --> 0:23:13.159 about the interviews in question, and then he refers to 0:23:13.320 --> 0:23:17.320 in footnotes interviews that various justices have done with members 0:23:17.320 --> 0:23:20.960 of the media and says, well, they didn't recuse themselves 0:23:21.000 --> 0:23:25.080 when cases involving those media entities came before the court. 0:23:25.160 --> 0:23:27.520 But I don't know of any case where the journalists 0:23:27.960 --> 0:23:29.880 then came before the court. 0:23:30.160 --> 0:23:35.640 I don't either. It's also pretty unusual because Justice Alito 0:23:35.800 --> 0:23:43.000 himself described this PR campaign as his self defense. Judges 0:23:43.160 --> 0:23:46.600 talked to journalists to educate the public about the law 0:23:46.720 --> 0:23:50.840 all the time, that's all fine, but he said that 0:23:50.960 --> 0:23:53.240 no one was defending him, so he would have to 0:23:53.280 --> 0:23:58.760 defend himself and launched this PR campaign. The lawyer in 0:23:58.840 --> 0:24:02.280 this case helped to him with his pr campaign. Something 0:24:02.320 --> 0:24:05.159 that people in this town pay tens and hundreds of 0:24:05.200 --> 0:24:08.840 thousands of dollars for was given to him free, and 0:24:08.880 --> 0:24:13.119 then this lawyer who did this enormous favor to him 0:24:13.560 --> 0:24:16.119 is arguing a case in front of the court that's 0:24:16.440 --> 0:24:18.199 unprecedented to my knowledge. 0:24:18.920 --> 0:24:22.960 There's also the fact that when the first article was 0:24:23.000 --> 0:24:26.680 published in April, the justices hadn't yet agreed to hear 0:24:26.720 --> 0:24:28.920 the case. They agreed in June, and then the second 0:24:29.000 --> 0:24:32.440 article was published in July. So the timing alone gives 0:24:32.440 --> 0:24:33.840 the appearance of impropriety. 0:24:34.280 --> 0:24:38.040