1
00:00:03,160 --> 00:00:07,960
Speaker 1: This is Bloombird Law with June Brusso from Bloomberg Radio.

2
00:00:10,080 --> 00:00:14,160
Speaker 1: The Honorable the Chief Justice and the Associate Justices of

3
00:00:14,200 --> 00:00:18,400
Speaker 1: the Supreme Court of the United States. Oh yea, oh yea,

4
00:00:19,000 --> 00:00:23,080
Speaker 1: oh yea. The new Supreme Court term starts on Monday

5
00:00:23,160 --> 00:00:27,520
Speaker 1: with cases teed up on affirmative action, gay rights, elections,

6
00:00:27,520 --> 00:00:31,040
Speaker 1: and the environment. That could make this term as divisive

7
00:00:31,120 --> 00:00:34,640
Speaker 1: as the last. The conservative majority has shown they're not

8
00:00:34,800 --> 00:00:38,760
Speaker 1: afraid to up end precedent, so much so that Liberal

9
00:00:38,840 --> 00:00:43,120
Speaker 1: Justice Elaine at Kagan expressed concern for the legitimacy of

10
00:00:43,159 --> 00:00:46,400
Speaker 1: the court. If one judge dies or leaves a court

11
00:00:46,880 --> 00:00:50,000
Speaker 1: and another judge comes in and all of a sudden,

12
00:00:50,040 --> 00:00:52,360
Speaker 1: the law changes on you. What does that say? You know,

13
00:00:52,400 --> 00:00:55,240
Speaker 1: that just doesn't seem a lot like law if it

14
00:00:55,240 --> 00:01:01,360
Speaker 1: can depend so much on which particular person is in

15
00:01:02,160 --> 00:01:05,840
Speaker 1: the court. My guest is former United States Solicitor General

16
00:01:05,920 --> 00:01:09,399
Speaker 1: Gregory gar a partner at Latham and Watkins. Greg The

17
00:01:09,400 --> 00:01:13,280
Speaker 1: Court is going to hear two cases challenging affirmative action

18
00:01:13,360 --> 00:01:16,560
Speaker 1: in college admissions. I know that you want a landmark

19
00:01:16,640 --> 00:01:21,040
Speaker 1: case before the Court in six Fisher versus the University

20
00:01:21,040 --> 00:01:26,680
Speaker 1: of Texas, which upheld the university's race conscious admissions policy.

21
00:01:26,959 --> 00:01:31,160
Speaker 1: These two cases, one against Harvard, a private university, and

22
00:01:31,200 --> 00:01:35,320
Speaker 1: the other against the University of North Carolina, a public university,

23
00:01:35,680 --> 00:01:38,840
Speaker 1: are brought by the same group, Students for Fair Admissions,

24
00:01:38,920 --> 00:01:44,400
Speaker 1: who argued that the school's admissions processes discriminate against Asian Americans.

25
00:01:44,640 --> 00:01:48,320
Speaker 1: Tell us about the issues here. So in two thousands sixteen,

26
00:01:48,320 --> 00:01:51,480
Speaker 1: in the Fisher case, the court narrowly upheld University of

27
00:01:51,520 --> 00:01:55,440
Speaker 1: Texas is consideration of race and its undergraduate admissions policy,

28
00:01:55,720 --> 00:01:58,400
Speaker 1: and almost eight years or so before then, it had

29
00:01:58,520 --> 00:02:03,920
Speaker 1: narrowly upheld Michigan use of race and its holistic admissions

30
00:02:03,960 --> 00:02:07,400
Speaker 1: policy at the undergraduate level. And so the Court is

31
00:02:07,560 --> 00:02:11,079
Speaker 1: re examining this issue again in the context of two cases,

32
00:02:11,240 --> 00:02:14,720
Speaker 1: one involving the oldest private college in America, Harvard, and

33
00:02:14,720 --> 00:02:17,799
Speaker 1: the other involving the oldest public college in America, the

34
00:02:17,880 --> 00:02:21,360
Speaker 1: University of North Carolina and the private public distinction is

35
00:02:21,400 --> 00:02:25,080
Speaker 1: important because the public college raises the question of whether

36
00:02:25,160 --> 00:02:28,000
Speaker 1: or not the consideration of race violates the Fourteenth Amendment,

37
00:02:28,080 --> 00:02:30,600
Speaker 1: and the private college raises the question of whether it

38
00:02:30,840 --> 00:02:35,040
Speaker 1: violates Title six of the Civil Rights Laws, which largely

39
00:02:35,200 --> 00:02:38,840
Speaker 1: track the Fourteenth Amendment standards. But these were very close

40
00:02:38,880 --> 00:02:42,639
Speaker 1: cases when they were decided in Fisher in Michigan, and

41
00:02:42,800 --> 00:02:44,960
Speaker 1: now the Court has changed a great deal and it's

42
00:02:45,000 --> 00:02:48,920
Speaker 1: considering again. And the cases as presented the Court deal

43
00:02:48,960 --> 00:02:50,920
Speaker 1: not only with the question of whether or not these

44
00:02:50,960 --> 00:02:54,360
Speaker 1: particular plans are constitutional, but the planets in these cases

45
00:02:54,520 --> 00:02:57,360
Speaker 1: have raised the bigger question of whether or not Fisher

46
00:02:57,560 --> 00:03:01,440
Speaker 1: and Gruder should be overruled altogether. And that's by far

47
00:03:01,520 --> 00:03:04,359
Speaker 1: the most important question in these cases, and the most

48
00:03:04,440 --> 00:03:07,679
Speaker 1: interesting thing to follow from the arguments is whether or

49
00:03:07,720 --> 00:03:11,400
Speaker 1: not it appears that the Court is poised actually overrule

50
00:03:11,520 --> 00:03:14,720
Speaker 1: these precedents, or whether or not it would take a

51
00:03:14,760 --> 00:03:18,480
Speaker 1: more narrow a tack and perhaps simply apply the precedents

52
00:03:18,520 --> 00:03:21,400
Speaker 1: and conclude that the universities had not met the standards

53
00:03:21,400 --> 00:03:23,600
Speaker 1: supplied in the other cases. If they were to come

54
00:03:23,600 --> 00:03:27,040
Speaker 1: out that way, the Supreme Court didn't have to take

55
00:03:27,040 --> 00:03:30,160
Speaker 1: the case, meaning that there was no circuit split they

56
00:03:30,160 --> 00:03:34,119
Speaker 1: had to resolve, and the Biden administration urged the justices

57
00:03:34,240 --> 00:03:39,240
Speaker 1: to reject the challenge. That leads many to conclude that

58
00:03:39,360 --> 00:03:43,520
Speaker 1: affirmative action is basically on the chopping block here, right,

59
00:03:43,640 --> 00:03:46,560
Speaker 1: And you know, It's a tough case for the defenders

60
00:03:46,600 --> 00:03:49,280
Speaker 1: of Harvard and University of North Carolina in this case

61
00:03:49,400 --> 00:03:51,400
Speaker 1: for that reason. But you know, all of that was

62
00:03:51,440 --> 00:03:53,440
Speaker 1: true in two thousands six team in the Court Grand

63
00:03:53,480 --> 00:03:56,000
Speaker 1: and Review in the Fisher case, and the Court in

64
00:03:56,040 --> 00:04:01,520
Speaker 1: that case ultimately upheld the constitutionality of Receie of Texas program.

65
00:04:01,760 --> 00:04:03,440
Speaker 1: That doesn't mean that the Court is going to reach

66
00:04:03,560 --> 00:04:07,040
Speaker 1: the same decision today, because it is a much different court.

67
00:04:07,120 --> 00:04:10,400
Speaker 1: I think it will be difficult for the defenders of

68
00:04:10,440 --> 00:04:13,040
Speaker 1: the policies in this case. So that's why I think

69
00:04:13,120 --> 00:04:15,560
Speaker 1: it makes the real interesting question in this case whether

70
00:04:15,640 --> 00:04:18,159
Speaker 1: or not the Court would simply apply existing precedent and

71
00:04:18,200 --> 00:04:21,440
Speaker 1: perhaps hold that these plans didn't do it the right way,

72
00:04:21,920 --> 00:04:24,880
Speaker 1: or whether the Court would go further and overrule the

73
00:04:24,880 --> 00:04:28,800
Speaker 1: precedent altogether. And obviously, in the wake of the decisions

74
00:04:29,279 --> 00:04:33,480
Speaker 1: last term, the prospect that the Court would overrule precedent

75
00:04:33,560 --> 00:04:36,520
Speaker 1: in this area would add to the debate that's ongoing

76
00:04:36,560 --> 00:04:39,080
Speaker 1: in terms of war the court is today, there's one

77
00:04:39,080 --> 00:04:42,000
Speaker 1: case that really seems to be drawing the lion's share

78
00:04:42,120 --> 00:04:46,400
Speaker 1: of attention from political analysts, and some are calling it

79
00:04:46,440 --> 00:04:50,720
Speaker 1: a threat to democracy. It's based on a controversial legal

80
00:04:50,760 --> 00:04:55,880
Speaker 1: theory called the independent state legislature doctrine that some say

81
00:04:55,920 --> 00:05:00,279
Speaker 1: would reshape how federal elections are conducted by giving state

82
00:05:00,360 --> 00:05:05,159
Speaker 1: legislature is the ultimate power to regulate federal elections. So

83
00:05:05,320 --> 00:05:09,120
Speaker 1: this involves a North Carolina map, right, So this case

84
00:05:09,279 --> 00:05:12,359
Speaker 1: involves the challenge in the state courts under the state

85
00:05:12,440 --> 00:05:16,960
Speaker 1: constitution alleging that a congressional map violated the state's partisan

86
00:05:17,080 --> 00:05:20,640
Speaker 1: gerrymandering provision, and the state Court of validated the map

87
00:05:20,680 --> 00:05:23,560
Speaker 1: on that basis and told the legislature to redraw a map,

88
00:05:23,720 --> 00:05:26,800
Speaker 1: and the challengers in that case argue that that violated

89
00:05:26,920 --> 00:05:31,120
Speaker 1: the federal constitutional provision on elections in the election Clause,

90
00:05:31,440 --> 00:05:34,120
Speaker 1: which says, at the times places, a manner of holding

91
00:05:34,160 --> 00:05:37,320
Speaker 1: elections for senators and representatives shall be prescribed in each

92
00:05:37,360 --> 00:05:41,680
Speaker 1: state by the legislature thereof. And that's where this doctrine

93
00:05:41,800 --> 00:05:45,800
Speaker 1: comes from, the argument that the United States Constitution requires

94
00:05:46,360 --> 00:05:49,599
Speaker 1: the regulation of the time places manner of holding elections

95
00:05:49,600 --> 00:05:52,440
Speaker 1: for federal office to be done by the state legislature,

96
00:05:52,600 --> 00:05:54,800
Speaker 1: not the state court. And so the question in this

97
00:05:54,839 --> 00:05:57,440
Speaker 1: case is did the state court and applying the state

98
00:05:57,480 --> 00:06:01,960
Speaker 1: constitution overstep its bounds and requiring a new map. Was

99
00:06:02,000 --> 00:06:04,400
Speaker 1: that only a matter for the state legislature to draw,

100
00:06:04,680 --> 00:06:06,360
Speaker 1: But this is an issue that came up in the

101
00:06:06,360 --> 00:06:10,799
Speaker 1: context of various balloting provisions during the past presidential election,

102
00:06:11,040 --> 00:06:14,240
Speaker 1: and the ruling of this case could govern future challenges,

103
00:06:14,279 --> 00:06:18,719
Speaker 1: including the next presidential election. Our elections law experts right

104
00:06:18,839 --> 00:06:22,840
Speaker 1: to be really concerned about this, to say that this

105
00:06:22,880 --> 00:06:27,920
Speaker 1: would give state lawmakers the power over redistricting and election procedures,

106
00:06:28,040 --> 00:06:32,280
Speaker 1: even if it results in parties in gerrymandering or violates

107
00:06:32,320 --> 00:06:36,720
Speaker 1: state constitutions, and there'd be no review by the state courts. Well,

108
00:06:36,800 --> 00:06:39,120
Speaker 1: the question is is which body of the state can

109
00:06:39,160 --> 00:06:42,159
Speaker 1: make the ultimate decision about what the election rules should

110
00:06:42,160 --> 00:06:44,840
Speaker 1: be that the state courts of the state legislature. And

111
00:06:44,880 --> 00:06:47,920
Speaker 1: does the US Constitution require that decision be made by

112
00:06:47,920 --> 00:06:51,760
Speaker 1: the state legislature with ultimate review to the U. S.

113
00:06:51,760 --> 00:06:55,200
Speaker 1: Supreme Court and situations where there's a constitutional claim, so

114
00:06:55,240 --> 00:06:57,240
Speaker 1: that that's the matter that will have to be resolved

115
00:06:57,240 --> 00:07:00,760
Speaker 1: in this case. This case first came up for emergency

116
00:07:01,000 --> 00:07:06,039
Speaker 1: review and three Justices Alito, Thomas, and Gorsage would have

117
00:07:06,160 --> 00:07:11,760
Speaker 1: granted North Carolina's application to restore the voting map drawn

118
00:07:11,840 --> 00:07:16,240
Speaker 1: by the state legislature under this doctrine. Obviously, they got

119
00:07:16,320 --> 00:07:19,920
Speaker 1: four votes to take the case, so might there be

120
00:07:20,000 --> 00:07:24,920
Speaker 1: five votes for this really controversial doctrine. There could be June,

121
00:07:25,040 --> 00:07:27,600
Speaker 1: but I think the decision to grant review here, it's

122
00:07:27,600 --> 00:07:30,200
Speaker 1: hard to say whether or not this was because there

123
00:07:30,240 --> 00:07:32,760
Speaker 1: were four or five that thought that the state court

124
00:07:33,120 --> 00:07:36,840
Speaker 1: had overstepped its bounds under the US Constitution here, or

125
00:07:36,880 --> 00:07:39,080
Speaker 1: whether or not the Justice is recognized that this was

126
00:07:39,120 --> 00:07:42,720
Speaker 1: an issue that was presented in the last presidential election.

127
00:07:42,800 --> 00:07:44,960
Speaker 1: That's something that should be resolved one way or the

128
00:07:45,000 --> 00:07:48,280
Speaker 1: other before we go through another election cycle. Okay, let's

129
00:07:48,360 --> 00:07:53,160
Speaker 1: talk about redistricting Meryl v. Milligan. Alabama's congressional map. About

130
00:07:54,200 --> 00:07:57,760
Speaker 1: of Alabama's residents are black, but there's only one majority

131
00:07:57,800 --> 00:08:00,920
Speaker 1: black district out of seven in the state. So this

132
00:08:00,960 --> 00:08:03,440
Speaker 1: is another election case. And the question in this case

133
00:08:03,680 --> 00:08:07,560
Speaker 1: is vote dilution under the Voting Rights Act. And the

134
00:08:07,600 --> 00:08:11,560
Speaker 1: allegation in this case is that the legislature has impermissibly

135
00:08:11,800 --> 00:08:15,080
Speaker 1: diluted the black vote by splitting up black communities and

136
00:08:15,160 --> 00:08:18,840
Speaker 1: drawing the congressional districts. And this is obviously an important

137
00:08:18,880 --> 00:08:22,720
Speaker 1: and recurring issue, and drawing districts across the country, and

138
00:08:22,720 --> 00:08:26,640
Speaker 1: in some respects it overlaps with the admissions cases, and

139
00:08:26,720 --> 00:08:29,760
Speaker 1: that you know, all of these cases involves questions of

140
00:08:29,800 --> 00:08:33,840
Speaker 1: how race can be used by government decision makers. And

141
00:08:34,040 --> 00:08:36,160
Speaker 1: the Voting Rights Act is an area that this Court

142
00:08:36,160 --> 00:08:39,960
Speaker 1: has been fairly active in going back the past decade,

143
00:08:40,160 --> 00:08:43,800
Speaker 1: and with the newly constituted court their number of recent

144
00:08:43,880 --> 00:08:46,080
Speaker 1: justices who have come onto the Court before the last

145
00:08:46,080 --> 00:08:48,680
Speaker 1: big voting rights case, this is an opportunity for the

146
00:08:48,679 --> 00:08:51,600
Speaker 1: Court to re examine its precedents in this area and

147
00:08:51,640 --> 00:08:56,000
Speaker 1: consider the proper role of race in adjudicating a vote

148
00:08:56,000 --> 00:08:59,560
Speaker 1: ilution case under the Voting Rights Act. So in February,

149
00:08:59,640 --> 00:09:01,520
Speaker 1: the Core, in a five to four vote, put a

150
00:09:01,559 --> 00:09:04,920
Speaker 1: hold on the lower courts order which had required Alabama

151
00:09:04,920 --> 00:09:08,280
Speaker 1: to redraws MAP, and in her descent, Justice Kagan said

152
00:09:08,320 --> 00:09:13,120
Speaker 1: that accepting Alabama's contentions would rewrite decades of this Court's

153
00:09:13,240 --> 00:09:16,280
Speaker 1: precedent about the Voting Rights Act. I mean, if they

154
00:09:16,320 --> 00:09:20,079
Speaker 1: did that, that wouldn't be particularly surprising considering what they've

155
00:09:20,360 --> 00:09:23,000
Speaker 1: done to the Voting Rights Act even before the addition

156
00:09:23,040 --> 00:09:26,720
Speaker 1: of the three Trump appointees. I mean, that's certainly true.

157
00:09:26,760 --> 00:09:28,640
Speaker 1: If you go back to the Shelby County case. That

158
00:09:28,760 --> 00:09:31,200
Speaker 1: was one of the more contentious cases that the Court

159
00:09:31,240 --> 00:09:34,480
Speaker 1: has heard and decided in the last ten years or so.

160
00:09:34,760 --> 00:09:38,320
Speaker 1: And these are very divisive cases in which justices have

161
00:09:38,600 --> 00:09:41,719
Speaker 1: strongly held views. So it won't be surprising if there

162
00:09:41,760 --> 00:09:44,199
Speaker 1: are two different camps on this issue as to how

163
00:09:44,240 --> 00:09:46,800
Speaker 1: the case comes out. And you know what that means

164
00:09:46,840 --> 00:09:49,520
Speaker 1: for the Section two doctor and going forward. We'll just

165
00:09:49,559 --> 00:09:51,800
Speaker 1: have to wait and see. Coming up, former U S.

166
00:09:51,840 --> 00:09:55,199
Speaker 1: Listitor General Gregory Garre and I will discuss an upcoming

167
00:09:55,320 --> 00:10:23,120
Speaker 1: case involving Andy Warhol and prints the Supreme Court justices.

168
00:10:23,200 --> 00:10:26,240
Speaker 1: We'll be looking at a series of silkscreen portraits of

169
00:10:26,400 --> 00:10:31,520
Speaker 1: musical icon prints created by artistic icon Andy Warhol. The

170
00:10:31,600 --> 00:10:35,320
Speaker 1: series was based on a photograph by Lynn Goldsmith, who

171
00:10:35,360 --> 00:10:40,560
Speaker 1: claims it was copyright infringement. Many people are thinking that

172
00:10:40,800 --> 00:10:45,520
Speaker 1: the transformative part of the faerious law allows them to

173
00:10:45,760 --> 00:10:49,839
Speaker 1: take our copy written work and do whatever they want

174
00:10:49,880 --> 00:10:53,360
Speaker 1: with it. This has got to stop. I've been talking

175
00:10:53,360 --> 00:10:57,000
Speaker 1: about the upcoming Supreme Court term, which starts on Monday,

176
00:10:57,400 --> 00:11:00,600
Speaker 1: with former U S. Lisitor General Gregory gar a partner

177
00:11:00,720 --> 00:11:03,560
Speaker 1: Latham and Watkins. Greg This case is going to draw

178
00:11:03,679 --> 00:11:07,319
Speaker 1: a different audience to the Supreme Court arguments. So this

179
00:11:07,360 --> 00:11:10,000
Speaker 1: is a really fascinating case, and I should disclose up

180
00:11:10,000 --> 00:11:13,240
Speaker 1: front that my firm actually represents the Warhole Foundation in

181
00:11:13,280 --> 00:11:16,000
Speaker 1: this case. But ultimately the question in this case is

182
00:11:16,559 --> 00:11:19,800
Speaker 1: what is it transformative use for purposes of triggering the

183
00:11:19,800 --> 00:11:22,720
Speaker 1: fair use defense under the Copyright Act? And it comes

184
00:11:22,760 --> 00:11:26,640
Speaker 1: into play in this case where Andy Warhol took this

185
00:11:26,920 --> 00:11:29,960
Speaker 1: photograph of prints and made certain changes to it in

186
00:11:30,040 --> 00:11:32,600
Speaker 1: terms of cropping it and altering the photo in various

187
00:11:32,640 --> 00:11:35,840
Speaker 1: ways to produce what is now I think an iconic

188
00:11:35,960 --> 00:11:39,000
Speaker 1: image of prints. And the question is whether or not

189
00:11:39,160 --> 00:11:43,160
Speaker 1: Andy Warhol's changes were sufficiently transformative to trigger the fair

190
00:11:43,280 --> 00:11:45,960
Speaker 1: use doctrine, which is a defense to country right, or

191
00:11:46,000 --> 00:11:50,160
Speaker 1: if not, that effectively makes Andy Warhol a copyright violator.

192
00:11:50,360 --> 00:11:54,240
Speaker 1: This case has huge implications for the art world, for museums,

193
00:11:54,280 --> 00:11:57,960
Speaker 1: for publishers, and it's also just a really fascinating case

194
00:11:58,120 --> 00:12:00,320
Speaker 1: for those who aren't you know, maybe as an estion

195
00:12:00,400 --> 00:12:02,280
Speaker 1: the legal doctor, and this would be an interesting case

196
00:12:02,320 --> 00:12:04,839
Speaker 1: to follow just because of the arguments on both sides

197
00:12:04,880 --> 00:12:07,959
Speaker 1: and the popular interest in the case. There's a case

198
00:12:08,000 --> 00:12:11,760
Speaker 1: that touches on free speech, religious rights, and gay rights.

199
00:12:12,200 --> 00:12:16,520
Speaker 1: A website designer in Colorado refused to start creating pages

200
00:12:16,600 --> 00:12:19,720
Speaker 1: for same sex weddings because she said doing so would

201
00:12:19,760 --> 00:12:22,960
Speaker 1: be at odds with her faith. And this is really

202
00:12:23,080 --> 00:12:29,200
Speaker 1: similar to theen case involving the Colorado baker right exactly so.

203
00:12:29,240 --> 00:12:33,199
Speaker 1: In Masterpiece Cake Shop, which isen case, the court held

204
00:12:33,320 --> 00:12:37,360
Speaker 1: that Colorado could not force, through its public accommodations law

205
00:12:37,520 --> 00:12:41,160
Speaker 1: a baker to make a cake for a same sex wedding.

206
00:12:41,280 --> 00:12:45,480
Speaker 1: But the court decided that case on fairly narrow grounds

207
00:12:45,520 --> 00:12:47,600
Speaker 1: that there was a basis in the record to believe

208
00:12:47,600 --> 00:12:51,439
Speaker 1: that the Colorado authorities had acted with religious animus. So

209
00:12:51,520 --> 00:12:53,480
Speaker 1: the issue is back to the court in the context

210
00:12:53,559 --> 00:12:56,560
Speaker 1: of this three or three creative case, which deals with

211
00:12:56,600 --> 00:12:59,840
Speaker 1: a website designer who doesn't wish to make her services

212
00:12:59,840 --> 00:13:02,880
Speaker 1: and eliable for same sex weddings. And the way in

213
00:13:02,880 --> 00:13:05,520
Speaker 1: which this case is different is her theory is based

214
00:13:05,559 --> 00:13:09,280
Speaker 1: on a broader First Amendment theory that her web design

215
00:13:09,520 --> 00:13:12,880
Speaker 1: is protected speech, and in fact that Colorado law prevents

216
00:13:12,880 --> 00:13:16,760
Speaker 1: her from making certain disclosures on her website about who

217
00:13:16,840 --> 00:13:19,319
Speaker 1: she will serve and why she would inserve particular people,

218
00:13:19,360 --> 00:13:22,959
Speaker 1: implicating First Amendment interest. So what's interesting about this case

219
00:13:23,080 --> 00:13:26,160
Speaker 1: is it presents the masterpiece cake shop question in the

220
00:13:26,200 --> 00:13:29,480
Speaker 1: broad sense, in the First Amendment context, which could have

221
00:13:29,559 --> 00:13:34,440
Speaker 1: potentially broad implications for how to think about and enforce

222
00:13:34,600 --> 00:13:38,040
Speaker 1: these public accommodations laws. As you say, it doesn't directly

223
00:13:38,080 --> 00:13:42,600
Speaker 1: involve religious rights, but peripherally. And I can't remember the

224
00:13:42,679 --> 00:13:46,839
Speaker 1: last time the Roberts Court ruled against claims that involved

225
00:13:47,000 --> 00:13:50,199
Speaker 1: religious rights. I mean, this is definitely an area where

226
00:13:50,400 --> 00:13:55,559
Speaker 1: those challenging restrictions on religious rights have fared well before

227
00:13:55,600 --> 00:13:58,080
Speaker 1: the Court, and I think, you know, going into the argument,

228
00:13:58,120 --> 00:14:00,840
Speaker 1: one would think that the challengers here would certainly have

229
00:14:01,120 --> 00:14:04,079
Speaker 1: some justices who would be sympathetic. But this is an

230
00:14:04,120 --> 00:14:08,040
Speaker 1: extremely complex constitutional question about the interplay between the First

231
00:14:08,080 --> 00:14:11,280
Speaker 1: Amendment and public accommodations law that the Court has struggled

232
00:14:11,360 --> 00:14:14,280
Speaker 1: with and sort of danced around for a long time.

233
00:14:14,400 --> 00:14:16,360
Speaker 1: So in terms of how the case comes out and

234
00:14:16,440 --> 00:14:19,360
Speaker 1: ultimately the doctrinal lines that are drawn, I think that's

235
00:14:19,440 --> 00:14:21,440
Speaker 1: very much up in the air. The Court is going

236
00:14:21,480 --> 00:14:24,560
Speaker 1: to hear an environmental case on the first day. It

237
00:14:24,640 --> 00:14:27,880
Speaker 1: involves the Clean Water Act. I'll let you take it

238
00:14:27,880 --> 00:14:32,280
Speaker 1: from here. Because the Clean Water Act complex stuff, right,

239
00:14:32,360 --> 00:14:35,320
Speaker 1: So that the plaintiffs in this case have been battling

240
00:14:35,320 --> 00:14:37,800
Speaker 1: with the e p A for fifteen years in an

241
00:14:37,800 --> 00:14:40,720
Speaker 1: effort to build their dream home on a parcel land

242
00:14:40,920 --> 00:14:43,920
Speaker 1: in Idaho. The case actually went before the Supreme Court

243
00:14:44,080 --> 00:14:46,280
Speaker 1: a while back on the question of whether they could

244
00:14:46,280 --> 00:14:49,480
Speaker 1: go to federal court to challenge e PAS permitting process,

245
00:14:49,480 --> 00:14:51,720
Speaker 1: and they succeeded in that, But then the e p

246
00:14:51,840 --> 00:14:55,080
Speaker 1: A ultimately found that there was water on the parcel

247
00:14:55,320 --> 00:14:58,320
Speaker 1: that implicated the Clean Water Act, and so now they're

248
00:14:58,320 --> 00:15:02,360
Speaker 1: back arguing about sort of jurisdictional nexus when there is

249
00:15:02,640 --> 00:15:06,880
Speaker 1: some body of water, however small, on one's property to

250
00:15:07,040 --> 00:15:10,560
Speaker 1: actually trigger the Federal Clean Water Act. And this then

251
00:15:10,680 --> 00:15:13,960
Speaker 1: raises the question of what is the proper definition of

252
00:15:14,120 --> 00:15:17,760
Speaker 1: waters of the United States, and administrations have gone back

253
00:15:17,760 --> 00:15:20,960
Speaker 1: and forth in the last decade or more about how

254
00:15:21,080 --> 00:15:24,720
Speaker 1: broad or narrowly that definition should be written, and the

255
00:15:24,720 --> 00:15:28,520
Speaker 1: Spreme Court has divided on that in prior cases as well.

256
00:15:28,640 --> 00:15:31,040
Speaker 1: So this is another opportunity for the Court to revisit

257
00:15:31,080 --> 00:15:33,320
Speaker 1: that issue, and it is one, as I say, that

258
00:15:33,360 --> 00:15:34,960
Speaker 1: the Court has struggled with before. So it will be

259
00:15:35,000 --> 00:15:37,120
Speaker 1: interesting if they can come to a resolution on it

260
00:15:37,200 --> 00:15:40,160
Speaker 1: in this case. In light of the Court's decision last

261
00:15:40,240 --> 00:15:44,720
Speaker 1: year that curtailed the e PAS ability to fight climate change,

262
00:15:45,200 --> 00:15:49,320
Speaker 1: many environmental experts think that the best case scenario for

263
00:15:49,480 --> 00:15:53,840
Speaker 1: environmentalists would be that the Court embraces the narrow reading

264
00:15:54,160 --> 00:15:56,560
Speaker 1: of the Clean Water Act that was proposed by the

265
00:15:56,680 --> 00:16:00,560
Speaker 1: late Justice Antonin Scalia. That certainly is is one of

266
00:16:00,600 --> 00:16:04,120
Speaker 1: the possibilities for the Court in terms of outcome. Justice

267
00:16:04,120 --> 00:16:07,840
Speaker 1: Scalia had proposed a test and ultimately only gone I

268
00:16:07,880 --> 00:16:10,120
Speaker 1: think three other votes for his test, So there was

269
00:16:10,120 --> 00:16:14,360
Speaker 1: a plurality decision in that case. In his rule didn't control.

270
00:16:14,600 --> 00:16:18,440
Speaker 1: So I mean, there's certainly broader administrative doctrines, including the

271
00:16:18,480 --> 00:16:20,960
Speaker 1: Major Questions doctrine which came out of the West Virginia

272
00:16:21,000 --> 00:16:24,040
Speaker 1: case last year, that could have implications here. So in

273
00:16:24,040 --> 00:16:26,560
Speaker 1: that respect, that may be right that they ultimately be

274
00:16:26,560 --> 00:16:29,040
Speaker 1: best off with the standard that Justice Scalia had proposed.

275
00:16:29,280 --> 00:16:32,440
Speaker 1: I know you're arguing a case sec. The Cochrane tell

276
00:16:32,520 --> 00:16:36,200
Speaker 1: us about that right. So Sec Versus Cochrane is a

277
00:16:36,200 --> 00:16:38,920
Speaker 1: case that, along with the Tan case, presents the general

278
00:16:39,000 --> 00:16:43,560
Speaker 1: question of whether someone who's in meshed in proceedings before

279
00:16:43,560 --> 00:16:46,000
Speaker 1: an agency. In our case, we represent a woman who

280
00:16:46,080 --> 00:16:49,680
Speaker 1: was alleged to engage in certain accounting violations and was

281
00:16:49,840 --> 00:16:53,040
Speaker 1: sued by the sec before one of their in house judges.

282
00:16:53,320 --> 00:16:55,880
Speaker 1: Whether they can go to a federal district court and

283
00:16:56,000 --> 00:17:00,400
Speaker 1: argue that the administrative decision maker is unconstitutional because that

284
00:17:00,480 --> 00:17:05,679
Speaker 1: decision makers unconstitutionally insulated from removal by the President, or

285
00:17:05,760 --> 00:17:09,240
Speaker 1: whether that person instead has to sort of endure what

286
00:17:09,359 --> 00:17:14,960
Speaker 1: can oftentimes be very lengthy, constantly burdensome administrative proceedings and

287
00:17:15,040 --> 00:17:17,159
Speaker 1: only then go to a federal court in review of

288
00:17:17,200 --> 00:17:21,479
Speaker 1: the agency order and challenge the constitutionality of the decision makers.

289
00:17:21,480 --> 00:17:25,200
Speaker 1: So this case is enormous consequence for the many individuals

290
00:17:25,240 --> 00:17:28,040
Speaker 1: or companies that are in meshed in agency proceedings and

291
00:17:28,200 --> 00:17:32,080
Speaker 1: presents a basic question of the federal jurisdiction and the

292
00:17:32,080 --> 00:17:34,639
Speaker 1: ability to go to federal court to challenge on constitutional

293
00:17:34,760 --> 00:17:38,040
Speaker 1: agency action. It seems like you have a good argument

294
00:17:38,080 --> 00:17:41,399
Speaker 1: here because of past decisions by the Supreme Court or

295
00:17:41,440 --> 00:17:44,040
Speaker 1: recent decision by the Supreme Court. We hope we do,

296
00:17:44,200 --> 00:17:46,880
Speaker 1: June Um. You know, certainly the Court has been more

297
00:17:46,960 --> 00:17:51,600
Speaker 1: skeptical of administrative overreach here, and we do think that

298
00:17:52,119 --> 00:17:56,080
Speaker 1: there are problems raised by the current scheme. But even

299
00:17:56,119 --> 00:17:58,919
Speaker 1: more than that, we think this is a basic statutory

300
00:17:59,000 --> 00:18:02,560
Speaker 1: question that Congress granted little just ac courts broad jurisdiction

301
00:18:02,600 --> 00:18:05,639
Speaker 1: and the Federal Question Statute and never took that away,

302
00:18:05,840 --> 00:18:09,400
Speaker 1: including with respect agency proceedings. Here, I want to ask

303
00:18:09,400 --> 00:18:13,119
Speaker 1: you a broad question. Polls show that public approval of

304
00:18:13,160 --> 00:18:17,520
Speaker 1: the Court is at historic lows after last term where

305
00:18:17,560 --> 00:18:21,520
Speaker 1: the Court overturned Roe v. Wade. The repercussions of that

306
00:18:21,600 --> 00:18:24,760
Speaker 1: are playing out across the country. It throughout New York

307
00:18:24,880 --> 00:18:29,080
Speaker 1: centurial gun control law, expanding gun rights and if further

308
00:18:29,160 --> 00:18:32,600
Speaker 1: blurred the separation between church and state. So the six

309
00:18:32,680 --> 00:18:36,679
Speaker 1: Conservatives show that they're not afraid to up end precedent.

310
00:18:37,240 --> 00:18:41,240
Speaker 1: If the Court continues along this path, making changes to

311
00:18:41,280 --> 00:18:45,359
Speaker 1: the law on controversial issues that affects society, and doing

312
00:18:45,400 --> 00:18:48,280
Speaker 1: it by either six to three or five to four votes,

313
00:18:48,840 --> 00:18:52,160
Speaker 1: what will the effect beyond the Court as an institution. Well,

314
00:18:52,200 --> 00:18:55,080
Speaker 1: obviously this is a very important issue, and you know

315
00:18:55,200 --> 00:18:59,200
Speaker 1: this is all still unfolding. The fact that the justices

316
00:18:59,280 --> 00:19:01,240
Speaker 1: have been at there, at least some of them speaking

317
00:19:01,280 --> 00:19:04,800
Speaker 1: about this publicly is interesting. The Court announced just the

318
00:19:04,800 --> 00:19:07,560
Speaker 1: other day that it was reopening to the public for arguments,

319
00:19:07,600 --> 00:19:11,000
Speaker 1: but it otherwise remains close to the public, indicating that

320
00:19:11,000 --> 00:19:13,600
Speaker 1: we're we're not fully back to normal. And I think,

321
00:19:13,640 --> 00:19:15,960
Speaker 1: you know, all of this is gonna shake out in

322
00:19:16,000 --> 00:19:17,600
Speaker 1: ways that we're going to have to follow. I mean,

323
00:19:17,600 --> 00:19:22,000
Speaker 1: this term itself presents many blockbuster cases. There are opportunities

324
00:19:22,040 --> 00:19:25,360
Speaker 1: for the Court to revisit precedent or decide cases narrowly.

325
00:19:25,680 --> 00:19:28,240
Speaker 1: And if you look at the affirmative action cases in particular,

326
00:19:28,320 --> 00:19:30,840
Speaker 1: that's one to follow early on in the term in

327
00:19:30,960 --> 00:19:33,080
Speaker 1: terms of whether the Court seems to be, you know,

328
00:19:33,200 --> 00:19:36,760
Speaker 1: swinging broadly or perhaps focusing more narrowly. And we'll have

329
00:19:36,840 --> 00:19:38,920
Speaker 1: to see how this plays out, and you know, whether

330
00:19:38,960 --> 00:19:41,960
Speaker 1: the dust will ultimately settle over the course of the term.

331
00:19:41,960 --> 00:19:44,240
Speaker 1: But it's something that the court in the country will

332
00:19:44,280 --> 00:19:46,480
Speaker 1: will have to work through. And this term, of course,

333
00:19:46,520 --> 00:19:49,760
Speaker 1: we also have a new justice, Justice Jackson. She is

334
00:19:49,840 --> 00:19:53,320
Speaker 1: unlikely to change the basic ideological divide in the court,

335
00:19:53,440 --> 00:19:55,920
Speaker 1: but as the saying goes, you know, every new justice

336
00:19:55,920 --> 00:19:57,639
Speaker 1: brings a new court, so we'll have to see how

337
00:19:57,680 --> 00:20:00,439
Speaker 1: that plays out. Thanks so much for your insights, greg

338
00:20:00,880 --> 00:20:04,439
Speaker 1: that's former United States Solicitor General Gregory garr a partner

339
00:20:04,440 --> 00:20:07,080
Speaker 1: at Latham and Watkins. And that's it for this edition

340
00:20:07,080 --> 00:20:09,800
Speaker 1: of The Bloomberg Law Show. Remember you can always get

341
00:20:09,840 --> 00:20:12,879
Speaker 1: the latest legal news on our Bloomberg Law Podcast. You

342
00:20:12,920 --> 00:20:16,840
Speaker 1: can find them on Apple Podcasts, Spotify, and at www

343
00:20:16,920 --> 00:20:20,800
Speaker 1: dot bloomberg dot com, slash podcast, slash Law, and please

344
00:20:20,880 --> 00:20:23,440
Speaker 1: join us with The Bloomberg Law Show every week night

345
00:20:23,600 --> 00:20:26,879
Speaker 1: at ten pm Wall Street Time. I'm June Grosso and

346
00:20:26,920 --> 00:20:28,159
Speaker 1: you're listening to Bloomberg