WEBVTT - Cases Where Justice Barrett Could Make a Difference 0:00:00.560 --> 0:00:05.360 This is Bloomberg Law with June Grassoe from Bloomberg Radio 0:00:06.680 --> 0:00:09.960 New Justice Amy Coney Barrett will immediately be embroiled in 0:00:10.000 --> 0:00:13.000 some of the nation's biggest legal battles. The Court has 0:00:13.039 --> 0:00:16.520 already been deciding pre election skirmishes over the rules for 0:00:16.640 --> 0:00:20.479 casting and counting ballots. Joining me as constitutional law professor 0:00:20.560 --> 0:00:23.880 Neil Kinkoff of the Georgia State University College of Law, 0:00:24.640 --> 0:00:28.040 Most of these emergency petitions on election law issues are 0:00:28.080 --> 0:00:32.400 being decided by Chief Justice Robert's vote. When Barrett is 0:00:32.440 --> 0:00:35.200 in the equation, will she then be the deciding vote. 0:00:35.520 --> 0:00:39.480 She'll be the deciding vote in any case where Roberts 0:00:39.520 --> 0:00:42.080 makes the vote four to four. So in a case 0:00:42.120 --> 0:00:45.800 like the Wisconsin case from yesterday that was five to three, 0:00:46.320 --> 0:00:50.440 her vote wouldn't affect the outcome. Speaking of the Wisconsin case, 0:00:51.080 --> 0:00:57.160 are you reading into Justice Kavanaughs comments that he's trying 0:00:57.160 --> 0:01:00.080 to provide a roadmap that could help Trump win in 0:01:00.160 --> 0:01:03.800 the election if there's a contested race. Well, I guess 0:01:03.800 --> 0:01:06.240 I would put it this way. Two years ago, we 0:01:06.280 --> 0:01:10.880 saw Brett Kavanaugh screaming at the Senate Judiciary Committee. Now, 0:01:10.920 --> 0:01:15.240 in his opinion, we see him screaming Donald Trump's talking 0:01:15.319 --> 0:01:20.000 points into his concurrence. Really, the only difference between Brett 0:01:20.040 --> 0:01:23.880 Kavanaugh's opinion in Donald Trump's Twitter feed is that Kavanaugh 0:01:23.959 --> 0:01:28.520 doesn't use all caps. Three of the justices worked on 0:01:28.560 --> 0:01:32.520 the Republican side on Bush v. Gore. When you're a 0:01:32.560 --> 0:01:36.720 litigator or a lawyer, you don't necessarily believe in what 0:01:36.800 --> 0:01:41.600 you're arguing for your client in that context, does there 0:01:41.920 --> 0:01:46.560 being on that case signal anything? So I don't think 0:01:46.680 --> 0:01:50.520 that being on that case was an example of just 0:01:50.760 --> 0:01:53.760 taking your client's position, because that's what you're being paid 0:01:53.840 --> 0:01:56.400 to do. People who were involved in that case were 0:01:56.560 --> 0:01:59.840 very much committed to the cause they were arguing for 0:02:00.000 --> 0:02:03.560 are so this wasn't just sort of professional lawyering, So 0:02:03.600 --> 0:02:06.800 that I think you're quite right. In general, it's a 0:02:06.800 --> 0:02:11.080 perilous thing to read into an advocates position what that 0:02:11.280 --> 0:02:14.160 advocate might do on the bench. But I would say 0:02:14.160 --> 0:02:18.160 Bush versus Gore is a real exception to that, because 0:02:18.200 --> 0:02:21.760 the people who argued that case were very much committed 0:02:22.160 --> 0:02:25.600 to what they were arguing for, and so and I 0:02:25.639 --> 0:02:28.760 think it's it's you know, in that respect, it's no 0:02:28.960 --> 0:02:34.680 accident that um that in the Wisconsin opinion yesterday, Judge 0:02:34.800 --> 0:02:40.480 Justice Kavanaugh cited and discussed Bush versus Gore. Um. I 0:02:40.600 --> 0:02:44.200 believe that's the first time as any Supreme Court justice 0:02:44.240 --> 0:02:47.320 has done that since Bush versus Gore was decided. Right. 0:02:47.400 --> 0:02:51.720 It contained that famous passage where um Justice Kennedy wrote 0:02:51.760 --> 0:02:55.760 that that the the opinion was good for that day 0:02:55.800 --> 0:02:59.320 in that train only. But I think Justice Kavana was 0:02:59.400 --> 0:03:02.280 making it quite clear that that he regards that as 0:03:02.560 --> 0:03:08.800 sort of normal settled law and an appropriate precedent for 0:03:08.880 --> 0:03:12.680 how the Court should act. Justice Barrett was questioned on 0:03:12.840 --> 0:03:17.040 Roe v. Wade repeatedly during her confirmation hearings. She said 0:03:17.080 --> 0:03:19.400 that Roe v. Wade was not what she called a 0:03:19.480 --> 0:03:23.839 super precedent that could not be overturned, and she may 0:03:23.880 --> 0:03:26.520 be making a key decision on abortion in a matter 0:03:26.560 --> 0:03:30.640 of days. The Court is considering at a private confidence 0:03:30.800 --> 0:03:33.800 on Friday whether to hear Mississippi's defense of a law 0:03:33.880 --> 0:03:37.960 that would ban most abortions after fifteen weeks of pregnancy. 0:03:38.000 --> 0:03:41.080 If the Court takes that case, can we read anything 0:03:41.160 --> 0:03:43.720 into it? Well, I think if they take that case, 0:03:43.760 --> 0:03:46.880 they're taking it to uphold the Mississippi law. I think 0:03:46.960 --> 0:03:49.920 that's quite clear, and I think it's clear that the 0:03:50.000 --> 0:03:53.600 Court is aiming to overrule Row. I just I don't 0:03:53.600 --> 0:03:55.880 think there's any subtlety about it, and I don't think 0:03:55.920 --> 0:03:59.840 there's anything to be mystified about. That's exactly the agenda. 0:04:00.600 --> 0:04:03.680 And in order to uphold Mississippi's law, would they have 0:04:03.800 --> 0:04:08.320 to overrule Row? No, No, they wouldn't in that case. 0:04:08.640 --> 0:04:12.000 And that's you know, they could, but they wouldn't have to. 0:04:12.680 --> 0:04:15.840 And I think that's the preference of at least some 0:04:16.080 --> 0:04:19.479 of the justices in that group, is to move a 0:04:19.520 --> 0:04:24.800 bit incrementally. I think that's certainly Justice Roberts's preference UM. 0:04:24.920 --> 0:04:28.160 And I think that's serve the more credible way that 0:04:28.160 --> 0:04:31.520 that somebody who wants to reach that result would go 0:04:31.560 --> 0:04:35.040 about reaching it instead of reaching out to overrule Row. 0:04:35.800 --> 0:04:40.600 Set up a few cases beforehand that that seriously undermine Row. 0:04:41.160 --> 0:04:44.600 That then allows you when you do the starry decisive analysis. 0:04:45.400 --> 0:04:48.920 One component of that is whether the precedent is something 0:04:49.000 --> 0:04:53.000 that's fixed in the law, that's relied upon UM and 0:04:53.040 --> 0:04:56.520 that is consistent with other areas of the law, or 0:04:56.640 --> 0:04:59.320 by contrast, is it something that sort of sticks out 0:04:59.360 --> 0:05:02.440 like a sort um. So I think the first agenda 0:05:02.520 --> 0:05:08.440 item for UM Justices Barrett, Kavanaugh, Roberts is to make 0:05:08.560 --> 0:05:11.440 Row really stick out like a sore thumb and then 0:05:11.520 --> 0:05:14.600 come back and overrule it. The arguments on Obamacare come 0:05:14.680 --> 0:05:17.440 up right after the election. How is that likely to 0:05:17.480 --> 0:05:20.599 play out? There are a couple of aspects to that case. 0:05:20.720 --> 0:05:24.120 One is whether or not again the individual mandate as 0:05:24.200 --> 0:05:28.159 revised recently to have no penalty associated with it, whether 0:05:28.200 --> 0:05:31.760 that's constitutional. Because the Court ruled by a five to 0:05:31.839 --> 0:05:35.479 four vote that it was her vote replacing the vote 0:05:35.480 --> 0:05:38.479 of Justice Ginsberg, can flip that five to four in 0:05:38.520 --> 0:05:42.200 the other direction. Then the second question is if that 0:05:42.240 --> 0:05:46.240 provision is unconstitutional, is it severable from the rest of 0:05:46.279 --> 0:05:49.240 the statute. And that's the kind of question on which 0:05:49.560 --> 0:05:53.040 I would have expected Chief Justice Roberts too have sided 0:05:53.080 --> 0:05:56.400 with the liberals to say it is severable, or even 0:05:56.440 --> 0:05:58.200 to have sided with the liberals that have said in 0:05:58.200 --> 0:06:01.800 the first instance, it's still not constitutional. So I think 0:06:01.920 --> 0:06:05.479 Justice Barrett's vote is going to be decisive on both 0:06:05.520 --> 0:06:10.159 of those questions. And the severability argument, frankly, is really weak. 0:06:10.279 --> 0:06:14.360 And so it may be that Justice Barrett and any 0:06:14.480 --> 0:06:19.000 number of other conservative justices will agree that the individual 0:06:19.080 --> 0:06:22.839 mandate is severable. The Supreme Court has expedited a Trump 0:06:22.880 --> 0:06:28.120 administration appeal on the president's did to exclude undocumented immigrants 0:06:28.120 --> 0:06:30.240 from the census count, and they're going to hear that 0:06:30.279 --> 0:06:34.760 on November. Is there any indication how that case might 0:06:34.839 --> 0:06:38.240 go again? This is reading tea leaves um. I think 0:06:38.240 --> 0:06:41.080 there's a lot of reason to be concerned, given the 0:06:41.120 --> 0:06:45.839 way that at least four justices right there, four conservative justices, 0:06:46.360 --> 0:06:52.880 have pretty consistently upheld the frankly partisan Republican positions with 0:06:53.000 --> 0:06:57.120 respect of voting um, and fundamentally, that's what this census 0:06:57.200 --> 0:07:01.200 case is about, the apportionment of seats and House of Representatives. 0:07:01.240 --> 0:07:03.200 It also has a lot to do with the portionment 0:07:03.279 --> 0:07:06.680 of federal funding. So it's a case that goes goes 0:07:06.720 --> 0:07:11.200 beyond just that, but it has real political implications. And 0:07:11.280 --> 0:07:16.840 so adding Justice Barrett to that group means that the 0:07:16.880 --> 0:07:21.560 Court may well be poised to vindicate the Trump administration's 0:07:21.640 --> 0:07:27.640 frankly preposterous position. For two hundred and thirty years, it 0:07:27.720 --> 0:07:34.600 has been uniformly understood by Republicans, Democrats, pro immigration, anti immigration. 0:07:35.720 --> 0:07:41.400 Everybody that inhabitants means inhabitants. It doesn't mean citizens and 0:07:41.560 --> 0:07:47.440 so that this is even a question is really extraordinary. 0:07:47.920 --> 0:07:51.320 And yes, having Justice Barrett on the court for that 0:07:51.440 --> 0:07:55.200 I think was a big part of the impetus to 0:07:55.360 --> 0:08:00.400 push to fill Justice Ginsburg's vacancy with some one that 0:08:00.720 --> 0:08:04.520 the right wing felt they could rely upon. Also coming 0:08:04.600 --> 0:08:09.440 up is a clash between gay rights and religious rights, 0:08:09.480 --> 0:08:13.800 and the Supreme Court in recent years has been expanding 0:08:13.840 --> 0:08:18.000 religious rights, some even by seven to two votes. Does 0:08:18.000 --> 0:08:21.280 it seem as if that case is going to favor 0:08:21.360 --> 0:08:25.120 religious rights. Yes, that that case is going to go 0:08:25.400 --> 0:08:30.600 to use religious rights to establish a right to discriminate 0:08:30.720 --> 0:08:36.720 against people because of their gender or sexual orientation. Yes, 0:08:36.840 --> 0:08:39.560 that's very much the direction in which it's going. Let's 0:08:39.559 --> 0:08:43.360 just say that there is a democratic House, a Democratic Senate, 0:08:43.520 --> 0:08:48.160 and a democratic president. Can Congress pass laws to protect 0:08:48.640 --> 0:08:53.680 gay rights? If the Supreme Court holds that the free 0:08:53.720 --> 0:08:59.240 exercise of religion includes the right to discriminate against people 0:08:59.640 --> 0:09:05.960 becomes of their sexual orientation. Right, so the employer's religious 0:09:06.000 --> 0:09:12.200 belief that an employee's sexual orientation is sinful or disordered. Um, 0:09:12.240 --> 0:09:19.480 if that's protected free exercise, that forbids Congress from overriding it, 0:09:20.080 --> 0:09:24.120 because the right to free exercise is a fundamental First 0:09:24.120 --> 0:09:28.840 Amendment protected constitutional right, and Congress can't infringe on that 0:09:29.120 --> 0:09:33.599 by legislation. It is contrary to how we've always understood 0:09:33.600 --> 0:09:36.720 free exercise in the past to say that it includes 0:09:36.760 --> 0:09:40.439 a right to discriminate. But this Court certainly appears poised 0:09:40.760 --> 0:09:43.680 to say exactly that. Those are the cases that have 0:09:43.760 --> 0:09:46.800 been talked about a lot. Are there other decisions coming 0:09:46.880 --> 0:09:50.840 up that Cony Barrett's vote may make a difference. The 0:09:50.920 --> 0:09:54.680 other one that is immediately coming up is that the 0:09:54.760 --> 0:09:58.320 case involving the president's tax returns, and so you know 0:09:58.440 --> 0:10:01.200 she could end up casting at this aiding vote in 0:10:01.280 --> 0:10:03.680 that case. And when you think about the way the 0:10:03.760 --> 0:10:09.080 Supreme Court resolved the cases, both the one out of 0:10:09.120 --> 0:10:12.400 New York and the cases coming out of the congressional 0:10:12.440 --> 0:10:16.720 subpoena's it was a very complicated and frankly kind of 0:10:16.800 --> 0:10:23.160 convoluted compromise between several factions on the Supreme Court. Right, 0:10:23.240 --> 0:10:27.840 so they sort of spanned the gamut from the liberal 0:10:27.880 --> 0:10:34.000 approach of allowing Congress and um Cyrus Vans the Manhattan 0:10:34.000 --> 0:10:38.439 Prosecutor to subpoena and gain access to the president's tax 0:10:38.480 --> 0:10:42.040 returns um At the other end, you had Justice is 0:10:42.120 --> 0:10:44.720 Thomas and Alito who seemed to want to give the 0:10:44.760 --> 0:10:48.120 president blanket protection um. And then in the middle you 0:10:48.160 --> 0:10:52.480 had Justice roberts Um siding with the liberals, but in 0:10:52.520 --> 0:10:57.640 a in a much more narrow way, holding that there 0:10:57.720 --> 0:11:02.200 might be circumstances under which the as um could be upheld, 0:11:02.960 --> 0:11:06.720 but really leaving enforcement of that to sort of further 0:11:06.880 --> 0:11:11.360 judicial elaboration. Well, now it's time for that further judicial elaboration, 0:11:11.559 --> 0:11:15.000 and when you replace Ginsburg with Barrett, that could have 0:11:15.080 --> 0:11:20.240 a real important consequence for whether or not those tax 0:11:20.280 --> 0:11:23.720 returns have to be have to be turned over. Now 0:11:23.800 --> 0:11:26.640 that Cony Barrett is on the court, there's more of 0:11:26.679 --> 0:11:31.920 a push by Democrats to pack the court, and Joe 0:11:31.960 --> 0:11:35.120 Biden has said he's not a fan of that, but 0:11:35.320 --> 0:11:40.280 he's going to appoint Bipartisan Presidential Commission. What's your opinion 0:11:40.320 --> 0:11:43.200 about packing the court and whether it will, as some 0:11:43.240 --> 0:11:47.040 people say, ruin the Supreme Court. So, I think Donald 0:11:47.040 --> 0:11:49.800 Trump and Mitch McConnell have packed not just the Supreme 0:11:49.840 --> 0:11:53.360 Court but the federal courts generally, right, the district court 0:11:53.640 --> 0:11:57.320 um and the courts of Appeals um. And so I 0:11:57.360 --> 0:12:01.160 think it's important that they be unpacked. UM. The courts 0:12:01.400 --> 0:12:06.160 as they stand now do not have legitimacy or credibility, 0:12:06.320 --> 0:12:09.320 And it may be that adding seats doesn't do anything 0:12:09.360 --> 0:12:13.599 to improve their credibility, but it certainly improves their legitimacy 0:12:13.640 --> 0:12:16.400 in terms of their balance, in terms of undoing the 0:12:16.480 --> 0:12:21.000 manipulation that's been going on over the last years, many years, 0:12:21.000 --> 0:12:25.360 even before Donald Trump came into office, UM, Mitch McConnell 0:12:25.400 --> 0:12:28.960 was manipulating to make sure vacancies didn't get filled so 0:12:29.000 --> 0:12:32.240 they could be filled during the Trump administration, most famously 0:12:32.280 --> 0:12:35.559 with Marrick Garland, but not only UM. And so I 0:12:35.600 --> 0:12:39.320 think responding to that is absolutely vital to the court. 0:12:39.800 --> 0:12:43.040 Right to just lay down and accept it UM is 0:12:43.080 --> 0:12:48.679 to accept a judiciary that lacks any kind of real legitimacy, 0:12:48.840 --> 0:12:53.680 that's been manipulated and manipulated for obvious partisan purposes, and 0:12:53.800 --> 0:12:57.319 that needs to be undone. I suspect what Biden is 0:12:58.040 --> 0:13:01.120 doing is you know, pardon the pun, but he's Biden 0:13:01.200 --> 0:13:05.400 his time, right, And so you appoint a commission UM 0:13:05.440 --> 0:13:08.760 in order to take some time to really think about 0:13:08.840 --> 0:13:12.480 things and see how things are going. If John Roberts 0:13:12.480 --> 0:13:16.000 were still really the swing vote, I think he would 0:13:16.040 --> 0:13:18.960 hold his hand on things like over ruling Row. I 0:13:19.000 --> 0:13:22.760 think that would be his strong inclination, especially given the 0:13:22.800 --> 0:13:26.439 threat of court packing. But with the six to three majority, 0:13:26.600 --> 0:13:29.120 you know, even if you lose John Roberts, now it's 0:13:29.120 --> 0:13:33.560 a five to four majority. Rowe is gone right, and 0:13:33.640 --> 0:13:37.280 it may make political sense for Joe Biden to wait 0:13:37.400 --> 0:13:40.679 for that to happen before coming forward with any kind 0:13:40.720 --> 0:13:43.800 of court reform package. Thanks for being in the Bloomberg 0:13:43.880 --> 0:13:47.560 Laws Show, Neil. That's Professor Neil Kinkoff of the Georgia's 0:13:47.600 --> 0:13:52.600 Day University College of Law. Just as Amy Coney, Barrett 0:13:52.640 --> 0:13:55.520 made her Supreme Court debut less than a week after 0:13:55.559 --> 0:13:58.800 being sworn in as the newest member of the Court. Barrett, 0:13:58.840 --> 0:14:01.800 a graduate of notre Ame Law School, is the only 0:14:01.840 --> 0:14:04.800 current justice who did not attend law school at Harvard 0:14:04.880 --> 0:14:08.360 or Yale. About half of Supreme Court clerks in recent 0:14:08.440 --> 0:14:12.120 years also attended those law schools. So how did Barrett 0:14:12.160 --> 0:14:16.040 pick her law clerks? Joining me as Kimberly Strawbridge Robinson 0:14:16.240 --> 0:14:20.600 Bloomberg Law Supreme Court reporter, So Kimberly Barrett looked beyond 0:14:20.720 --> 0:14:23.880 Harvard and Yale for her law clerks. Well, that's what 0:14:23.920 --> 0:14:27.200 we've been seeing um with her on the Seventh Circuit, 0:14:27.280 --> 0:14:30.280 and that is how she picked her clerks for her 0:14:30.360 --> 0:14:33.440 first clerk class on the U. S. Supreme Court. She 0:14:33.560 --> 0:14:36.920 announced the other day for clerks to join her in 0:14:37.040 --> 0:14:39.720 chambers and none of none of them are from Harvard 0:14:39.760 --> 0:14:43.160 and Yale, something that has definitely set her apart. Now. 0:14:43.240 --> 0:14:46.760 Barrett hired two men and two women. Two were from 0:14:46.760 --> 0:14:50.320 the University of Chicago Law School, one from George Washington 0:14:50.400 --> 0:14:54.000 Law School, and one from Northwestern Law School, so none 0:14:54.000 --> 0:14:58.080 from her own alma mater. Does each justice have four clerks? 0:14:58.800 --> 0:15:03.240 Each active justice four clerks and then the retired justices 0:15:03.280 --> 0:15:06.480 can have one and those numbers and sometimes switch around 0:15:06.480 --> 0:15:09.280 depending on, you know, the membership of the court itself, 0:15:09.720 --> 0:15:13.160 but typically it's just four clerks for the nine justices 0:15:13.160 --> 0:15:16.000 sitting on the bench and have some of the clerks 0:15:16.040 --> 0:15:20.520 that she chose work for other justices. So she she 0:15:20.640 --> 0:15:24.280 did choose UM three clerks who had previously clerked for 0:15:24.320 --> 0:15:27.080 other justices, and then she brought one of her clerks 0:15:27.080 --> 0:15:30.040 from the Seventh Circuit along with her um to the 0:15:30.080 --> 0:15:33.080 Supreme Court. And that's typical. That's typically what we see 0:15:33.160 --> 0:15:36.200 from the justices who are just starting out on the bench. Now, 0:15:36.280 --> 0:15:40.480 I thought that Supreme Court clerkships lasted a year. Are 0:15:40.560 --> 0:15:44.320 some people clerking for the court for more than a year. Well, 0:15:44.360 --> 0:15:46.920 you know, we we do occasionally see people who have 0:15:46.960 --> 0:15:50.120 clerked for more than one justice. That could happen in ways. Um. 0:15:50.240 --> 0:15:53.040 One they are either get selected to clerk, and then 0:15:53.040 --> 0:15:56.120 that justice retired, and so technically they're working for the 0:15:56.160 --> 0:15:59.120 retired justice they had one of the active justices, um. 0:15:59.160 --> 0:16:02.160 For example, like Kennedy might have sent some of his 0:16:02.240 --> 0:16:06.280 clerks over to Justice Gorsute. Um. But then we also 0:16:06.360 --> 0:16:10.440 see that new justices do tend to hire clerks who 0:16:10.440 --> 0:16:14.840 have some previous experience on the Supreme Court probably um 0:16:15.160 --> 0:16:17.320 we're discussing, but to help them kind of learn the 0:16:17.400 --> 0:16:19.640 ropes a little bit of how you know the ins 0:16:19.640 --> 0:16:22.640 and outs of Supreme Court process. You know, I noticed 0:16:22.720 --> 0:16:28.600 that her clerks clerk previously for Justice is appointed by 0:16:28.880 --> 0:16:33.600 Republican presidents. When they're choosing clerks, are they thinking about 0:16:33.680 --> 0:16:39.520 their political bent? Well, Justice Scalil is really the last 0:16:39.600 --> 0:16:44.120 justice to hire quote unquote counter clerks, that is, somebody 0:16:44.240 --> 0:16:48.520 who is ideologically opposite of him. But he stopped that 0:16:48.600 --> 0:16:52.960 practice UM many many years ago before he passed away. 0:16:53.320 --> 0:16:56.400 And most of the justices tend to hire clerks who 0:16:56.400 --> 0:17:00.000 have clerked for other justices or other judges on lower 0:17:00.080 --> 0:17:03.040 courts UM who applied the law in a similar way 0:17:03.080 --> 0:17:06.280 as them. So it's not unusual that her clerks all 0:17:06.320 --> 0:17:10.720 came from Republican appointed justices. What has happened to Justice 0:17:10.760 --> 0:17:16.560 Ginsberg's clerks? So all five of Justice Ginsberg's clerks have 0:17:16.800 --> 0:17:21.040 been distributed amongst the Democratic appointed UH justices, And I 0:17:21.119 --> 0:17:25.080 did say five. Justice Ginsberg had agreed to take on 0:17:25.800 --> 0:17:29.679 Justice Stevens clerk before UH he had hired before he 0:17:29.800 --> 0:17:32.720 passed away, UM, and so that clerk is once again 0:17:32.760 --> 0:17:36.120 redistributed to yet another justice. Are there more women clerks 0:17:36.119 --> 0:17:38.880 and there used to be? Well, you know, Justice Barrett. 0:17:39.280 --> 0:17:43.359 Her experience of hiring more diverse clerks, academically diverse clerks 0:17:43.800 --> 0:17:46.760 her first term out is actually very similar to Justice Kavanaugh, 0:17:46.760 --> 0:17:51.040 who hired the first all female UH clerk class for 0:17:51.119 --> 0:17:54.000 his chambers and his first term as well. And so 0:17:54.119 --> 0:17:56.920 since then we have seen the number of women rising, 0:17:57.280 --> 0:18:02.320 largely due to Justice Kavanaugh's efforts. But Justice Ginsburg was 0:18:02.400 --> 0:18:05.240 also one of the justices who hired a large number 0:18:05.359 --> 0:18:08.280 of female clerks, and so we'll have to see if 0:18:08.320 --> 0:18:11.639 Justice any Colney Barrett continues that same direction or if 0:18:11.680 --> 0:18:14.000 we actually see the numbers follow a little bit under 0:18:14.040 --> 0:18:17.640 her tenure on the Court. And so Justice Barrett did 0:18:17.720 --> 0:18:21.959 not take part in some of the emergency election matters 0:18:22.000 --> 0:18:25.280 that came before the Court even after she was sworn in, 0:18:25.880 --> 0:18:29.360 but she did take part in the oral arguments. So 0:18:29.640 --> 0:18:33.400 what was the case about. Well, these cases, the two 0:18:33.440 --> 0:18:37.240 cases of the justices heard were relatively lower profile. Um. 0:18:37.280 --> 0:18:41.119 They were about PRISM them Information Act cases UM, and 0:18:41.200 --> 0:18:46.520 another about retirement benefits for railroad employees. UM. But of 0:18:46.560 --> 0:18:50.359 course in the coming weeks she's gonna hear some real blockbusters, 0:18:50.400 --> 0:18:54.520 starting on Wednesday, UH, with a dispute between religious freedom 0:18:54.520 --> 0:18:57.960 and LGBT rights, and the next week a case regarding 0:18:58.200 --> 0:19:02.280 the constitutionality of Bamacare or the Affordable Care Act. And 0:19:02.280 --> 0:19:04.679 of course we could still see the election come to 0:19:04.720 --> 0:19:08.160 the Supreme Court. Um. As you know, these challenges worked 0:19:08.200 --> 0:19:11.600 through the system. Thanks for being on the Bloomberg Law Show, Kimberly. 0:19:11.960 --> 0:19:17.920 That's Kimberly Strawbridge Robinson, Bloomberg Law Supreme Court reporter, a 0:19:18.040 --> 0:19:22.280 federal judge rejected abid by Republican activists to invalidate one 0:19:23.119 --> 0:19:26.679 seven thousand votes that were cast using drive through voting 0:19:26.680 --> 0:19:30.679 in the most populous county in Texas. Federal Judge Andrew 0:19:30.720 --> 0:19:33.439 Hannan said, for lack of a nicer way of saying it, 0:19:33.760 --> 0:19:36.920 I ain't buying it, joining me as Laurel Culkins Bloomberg 0:19:37.000 --> 0:19:40.000 Legal reporter, there seemed to have been a lot of 0:19:40.440 --> 0:19:44.960 court action about the election in Texas. What's been happening? 0:19:45.119 --> 0:19:47.879 Oh gosh, I think I've got PTSD from all the 0:19:47.960 --> 0:19:52.040 election challenges that have been filed against every single life 0:19:52.119 --> 0:19:55.840 and dice of the changes that Harris County in particular, 0:19:55.880 --> 0:19:59.159 which is home to Houston, UM every change the election 0:19:59.200 --> 0:20:01.440 officials have made trying to make it easier for people 0:20:01.440 --> 0:20:04.320 to vote during a pandemic, and they have been fought 0:20:04.480 --> 0:20:07.400 tooth and toneil every step of the way. It's been 0:20:07.400 --> 0:20:11.040 really hard to keep up with who's fighting what. And 0:20:11.080 --> 0:20:13.400 it's like the challenge that we just heard a conclusion 0:20:13.400 --> 0:20:17.560 on the same group of let's call the Radical Republicans 0:20:18.160 --> 0:20:21.400 had brought the exact same challenge in state court um. 0:20:21.600 --> 0:20:24.920 They were shot down Sunday by the State Supreme Court 0:20:25.040 --> 0:20:27.280 that they had another shot at it today in front 0:20:27.280 --> 0:20:29.600 of a federal judge who also shot them down. And 0:20:29.640 --> 0:20:32.600 I'm talking about the drive through voting challenge, which was 0:20:32.640 --> 0:20:35.439 one of the more unique options that Harris Canny came 0:20:35.480 --> 0:20:37.399 up with to try to put more voters into a 0:20:37.520 --> 0:20:40.280 voting boost. Tell us about the drive through because it 0:20:40.359 --> 0:20:43.359 seems as if they're checking, and it's a lot like 0:20:44.000 --> 0:20:47.120 going to vote at the polls. It's exactly like going 0:20:47.160 --> 0:20:48.880 to vote at the polls, except you never get out 0:20:48.880 --> 0:20:51.840 of your car, which for Houston is like the best 0:20:52.359 --> 0:20:55.119 possible solution because everybody in Houston is like born with 0:20:55.200 --> 0:20:57.359 car keys in their hands. At the town that lived 0:20:57.359 --> 0:21:01.400 and dies by the car. So what is in ten 0:21:01.480 --> 0:21:04.919 different locations around the city. The county has set up 0:21:04.960 --> 0:21:07.199 these giant tents like you see when you go to 0:21:07.400 --> 0:21:10.200 parties or think of the circus, but it has drive 0:21:10.320 --> 0:21:13.359 through lane built through the center of it. And you 0:21:13.640 --> 0:21:16.960 when the election clerk that's in that lane signals you 0:21:17.320 --> 0:21:20.480 as the voter, you drive forward and they make you 0:21:20.520 --> 0:21:22.560 turn off your cell phone. You have to follow all 0:21:22.560 --> 0:21:25.800 the regular procedures, You show your I D. You sign 0:21:25.840 --> 0:21:28.160 a voters register, just as if you had walked into 0:21:28.160 --> 0:21:32.480 the poll, they put a sanitized electronic tablet in your hands, 0:21:32.520 --> 0:21:35.119 You cast your vote, and you hand it back and 0:21:35.200 --> 0:21:37.359 it's plugged into the system and your vote counts, and 0:21:37.440 --> 0:21:40.199 away you go. At least that's theoretically how it's supposed 0:21:40.240 --> 0:21:44.000 to happen. This was approved by the Secretary of State 0:21:44.800 --> 0:21:47.600 and it's been in process for quite a while since 0:21:47.640 --> 0:21:50.560 the summer. Right. Well, we actually had a test drive 0:21:50.600 --> 0:21:53.800 of the system in the runoff election that was held 0:21:53.800 --> 0:21:58.200 in Texas in July, and Harris County rolled out one 0:21:58.560 --> 0:22:01.320 drive through location just to if the concept would work. 0:22:01.320 --> 0:22:03.879 And it worked outstandingly. Everybody loved it and there were 0:22:03.880 --> 0:22:06.879 no problems and there were no court challenges, and the 0:22:06.880 --> 0:22:09.879 Texas Secretary of State, who is the highest ranking election 0:22:09.920 --> 0:22:13.480 official in Texas, said hey, looks fine to me. So 0:22:14.040 --> 0:22:16.480 Harris County said, great, we'll double down. We'll put ten 0:22:16.600 --> 0:22:19.320 locations spread out all around the county and make it 0:22:19.359 --> 0:22:24.679 easy for everybody. And things were going swimmingly until the 0:22:24.920 --> 0:22:29.399 voting was well underway when this group of Republicans loalthy 0:22:29.480 --> 0:22:31.960 could call them radicals, you can call them malcontents, you 0:22:31.960 --> 0:22:34.359 can call them patriots. What everything you want to say. 0:22:34.480 --> 0:22:38.320 They challenged that the county elections clerk who had come 0:22:38.400 --> 0:22:41.640 up with drive through voting didn't technically have the authority 0:22:41.800 --> 0:22:44.640 to do so. Their argument was that only the Texas 0:22:44.720 --> 0:22:49.280 legislature can create new methods of voting, and so that's 0:22:49.320 --> 0:22:51.520 the fight was on from that point as to whether 0:22:51.680 --> 0:22:54.440 the county clerk had overstepped his bounds and creating new 0:22:54.480 --> 0:22:57.800 methods of voting. And today the judge in federal court 0:22:57.840 --> 0:23:00.560 in Houston essentially said, I think it's okay. At least 0:23:00.560 --> 0:23:03.680 it's okay for early voting. On a technicality, he threw 0:23:03.720 --> 0:23:07.520 out the lawsuit. He said the Republicans who complained don't 0:23:07.600 --> 0:23:10.640 have an actual injury to their right to vote, so 0:23:10.920 --> 0:23:13.200 they don't even have the right to bring this complaint, 0:23:13.440 --> 0:23:15.240 and so he wouldn't even consider the rest of the 0:23:15.320 --> 0:23:17.320 arguments legally, except he said, now, I know you're going 0:23:17.359 --> 0:23:19.720 to go run over to the Fifth Circuit and appeal 0:23:19.760 --> 0:23:21.280 my decision, So let me give you the rest of 0:23:21.320 --> 0:23:24.560 my thinking. And he said he sort of agreed with 0:23:24.680 --> 0:23:28.080 the people that looked at the Texas Election Code and said, well, 0:23:28.160 --> 0:23:30.840 it says on election day you're required to cast your 0:23:30.880 --> 0:23:34.119 vote in a building or in a structure, and he 0:23:34.200 --> 0:23:37.560 said the tents might not qualify under that rule. So 0:23:38.040 --> 0:23:40.320 he said on election day that might not be a 0:23:40.400 --> 0:23:42.600 legal place to cast your vote, but it certainly has 0:23:42.600 --> 0:23:45.320 been a legal place under the early voting rules. And 0:23:45.359 --> 0:23:47.520 so the hundred did twenties seven thousand votes that have 0:23:47.600 --> 0:23:51.480 been cast so far in early voting are going to 0:23:51.560 --> 0:23:55.280 count their legally counting unless an appellate corps comes in 0:23:55.359 --> 0:23:59.720 with a different decisions. Why we're Republicans going after these 0:24:00.040 --> 0:24:03.960 votes in Harris County? Could there have been Republican votes 0:24:04.000 --> 0:24:07.320 there too? Yes, In fact, they probably would have thrown 0:24:07.320 --> 0:24:09.800 out some Republican votes because there were quite a few 0:24:10.280 --> 0:24:13.920 elderly individuals who were voting at these drives through locations 0:24:13.960 --> 0:24:17.560 as a way to number one easily get around without 0:24:17.560 --> 0:24:20.399 mobility issues, but number two also avoid going into a 0:24:20.440 --> 0:24:24.520 crowded polling location and exposing themselves to potentially correct catching 0:24:24.560 --> 0:24:28.199 the coronavirus. So there were and older voters tend to 0:24:28.320 --> 0:24:31.280 vote Republican in Texas, so there would have been Republican 0:24:31.359 --> 0:24:35.200 votes that were caught up in this. But the um 0:24:35.280 --> 0:24:37.879 the main thing is Harris County is sort of brown 0:24:38.000 --> 0:24:41.840 zero for the Democratics effort to flip the state of 0:24:41.880 --> 0:24:48.119 Texas from its traditional Republican stronghold to a Democratic stronghold. UM. 0:24:48.160 --> 0:24:51.440 The state has been trending democratic in the last uh 0:24:51.440 --> 0:24:55.320 several presidential elections, in mid term congressional elections, and all 0:24:55.400 --> 0:24:58.760 of its largest cities are now routinely voting Democratic, with 0:24:59.000 --> 0:25:02.000 Harris County, which is again the home of Houston, leading 0:25:02.000 --> 0:25:05.080