1 00:00:03,200 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:09,800 --> 00:00:13,480 Speaker 1: It was another transformational term at the Supreme Court, where 3 00:00:13,480 --> 00:00:18,079 Speaker 1: the Republican appointed supermajority left no doubt that its conservative 4 00:00:18,120 --> 00:00:22,200 Speaker 1: revolution is pushing ahead to attain its goals without much 5 00:00:22,200 --> 00:00:27,120 Speaker 1: regard for precedent. The Conservatives slashed the power of regulators, 6 00:00:27,480 --> 00:00:31,480 Speaker 1: rule that Donald Trump is absolutely immune from criminal prosecution 7 00:00:31,720 --> 00:00:35,720 Speaker 1: for official presidential acts, made it harder to challenge voting 8 00:00:35,760 --> 00:00:39,920 Speaker 1: maps as racially gerrymandered, and found that homeless people sleeping 9 00:00:39,960 --> 00:00:43,400 Speaker 1: on the streets can be jailed. In those decisions, as 10 00:00:43,440 --> 00:00:47,400 Speaker 1: well as seven others. The Court was divided down ideological 11 00:00:47,479 --> 00:00:51,320 Speaker 1: lines six to three, with the liberal justices in the minority. 12 00:00:51,720 --> 00:00:54,520 Speaker 1: Joining me is Anthony Michael Christ, a professor at the 13 00:00:54,520 --> 00:00:58,959 Speaker 1: Georgia State University College of Law. People are bemoaning how 14 00:00:59,000 --> 00:01:03,120 Speaker 1: the Supreme Court had has become so political, But you 15 00:01:03,240 --> 00:01:06,679 Speaker 1: write that the Supreme Court always has been political and 16 00:01:06,760 --> 00:01:10,280 Speaker 1: that the Court has never been an apolitical arbiter of 17 00:01:10,319 --> 00:01:12,840 Speaker 1: the constitution. Tell us why so? 18 00:01:13,680 --> 00:01:17,399 Speaker 2: You know, the Supreme Court has two important features in 19 00:01:17,520 --> 00:01:20,960 Speaker 2: terms of how justice think. I think the first one 20 00:01:21,080 --> 00:01:23,880 Speaker 2: is that you know they're members of society, and so 21 00:01:24,720 --> 00:01:28,240 Speaker 2: you know, society has kind of dominant main streame views 22 00:01:28,280 --> 00:01:31,720 Speaker 2: and those that are very much on the outside, and justices, 23 00:01:31,959 --> 00:01:36,679 Speaker 2: much like your average citizen, is going to internalize those views, 24 00:01:36,760 --> 00:01:41,000 Speaker 2: internalize those changing dynamics in society and current events and 25 00:01:41,000 --> 00:01:45,200 Speaker 2: all the like, and their jurisprudence is going to sometimes 26 00:01:45,360 --> 00:01:47,920 Speaker 2: be affected by that. But then the other thing that's 27 00:01:47,960 --> 00:01:51,760 Speaker 2: even more important in terms of the Supreme Court's jurisprudential 28 00:01:51,800 --> 00:01:55,480 Speaker 2: outcomes is the fact that it is the byproduct of 29 00:01:56,080 --> 00:02:01,240 Speaker 2: big political coalition that elected presidents and that elect majorities 30 00:02:01,240 --> 00:02:04,560 Speaker 2: in the Senate. That then creates this dynamic where you 31 00:02:04,640 --> 00:02:08,280 Speaker 2: get a president who appoints justice the Supreme Court who 32 00:02:08,440 --> 00:02:13,240 Speaker 2: also reflects their ideological commitments. And so generally speaking, because 33 00:02:13,240 --> 00:02:17,400 Speaker 2: of these two different features of how justices get picked 34 00:02:17,440 --> 00:02:20,360 Speaker 2: and how they just operate as regular members of society, right, 35 00:02:20,360 --> 00:02:22,639 Speaker 2: they're not for medically sealed off from the rest of us. 36 00:02:22,720 --> 00:02:26,520 Speaker 2: You know, the courts tend to reflect majoritarian views. Certainly, 37 00:02:26,720 --> 00:02:29,400 Speaker 2: I think there's a case to be made that this court, 38 00:02:29,680 --> 00:02:33,400 Speaker 2: the Roberts Court, and as the Roberts Court is currently constituted. 39 00:02:33,520 --> 00:02:36,720 Speaker 2: A lot of people may say this, well, outside of 40 00:02:36,800 --> 00:02:40,840 Speaker 2: the kind of mainstream views of the average American today, 41 00:02:40,919 --> 00:02:43,120 Speaker 2: And I think there was an argument made for that, 42 00:02:43,360 --> 00:02:47,680 Speaker 2: for sure. But generally speaking, the Supreme Court just contrary 43 00:02:47,720 --> 00:02:49,399 Speaker 2: to what most of us have been taught in law 44 00:02:49,440 --> 00:02:51,680 Speaker 2: school and in college for years and years and years, 45 00:02:51,720 --> 00:02:54,400 Speaker 2: it's not a counter majoritory and institution. It has typically 46 00:02:54,440 --> 00:02:59,200 Speaker 2: reflected the majority view on major questions of law and politics. 47 00:02:59,520 --> 00:03:03,120 Speaker 1: Do you think that this is becoming more pronounced because 48 00:03:03,160 --> 00:03:06,800 Speaker 1: the Court has moved so fast to overrule precedent and 49 00:03:06,960 --> 00:03:08,200 Speaker 1: to change the law. 50 00:03:08,720 --> 00:03:11,840 Speaker 2: Yeah, So I think maybe a good app comparison maybe 51 00:03:12,639 --> 00:03:15,880 Speaker 2: the Warren Court from the nineteen fifties and nineteen sixties 52 00:03:16,040 --> 00:03:19,160 Speaker 2: and the current Robbers Court as it existed we'll say 53 00:03:19,200 --> 00:03:23,000 Speaker 2: since the Trump administration, so around twenty sixteen, and certainly 54 00:03:23,040 --> 00:03:26,320 Speaker 2: there's similar dynamics in that both courts overturned a lot 55 00:03:26,320 --> 00:03:30,240 Speaker 2: of precedent. People generally don't see the Warren Court as 56 00:03:30,400 --> 00:03:34,040 Speaker 2: being at a step with the average Americans view during 57 00:03:34,080 --> 00:03:37,200 Speaker 2: that period because the New Deal coalition was dominant and 58 00:03:37,280 --> 00:03:42,000 Speaker 2: they won outright majorities both in Congress and substantial majorities 59 00:03:42,080 --> 00:03:44,840 Speaker 2: time and again in terms of sending a president to 60 00:03:44,880 --> 00:03:48,720 Speaker 2: the White app and even Republicans who were more conservative 61 00:03:48,920 --> 00:03:52,000 Speaker 2: than the average Democrat at the time tends to be 62 00:03:52,040 --> 00:03:55,600 Speaker 2: more liberal, and so the views of the average politicians 63 00:03:55,840 --> 00:03:58,720 Speaker 2: who was electable in that time period was very much 64 00:03:58,760 --> 00:04:02,240 Speaker 2: in sync with the appsview of the typical Supreme Court 65 00:04:02,320 --> 00:04:05,960 Speaker 2: justice at the time. Why I think people seem more 66 00:04:06,680 --> 00:04:10,400 Speaker 2: skeptical of this court is because unlike the War in Court, 67 00:04:10,400 --> 00:04:13,520 Speaker 2: for example, you know, Donald Trump when he was first elected, 68 00:04:13,800 --> 00:04:17,719 Speaker 2: never cured a popular vote majority, and I think, you know, 69 00:04:17,839 --> 00:04:21,200 Speaker 2: in terms of public opinion pulling really never cracked a 70 00:04:21,320 --> 00:04:25,440 Speaker 2: majority of Americans supporting his presidency. And at the same time, 71 00:04:25,640 --> 00:04:28,320 Speaker 2: there was a dynamic that occurred in the Senate where 72 00:04:28,640 --> 00:04:32,040 Speaker 2: Donald Trump's Supreme Court nominees, unlike every nominee in the 73 00:04:32,120 --> 00:04:37,120 Speaker 2: years past, was unable to secure a majority of Senators 74 00:04:37,160 --> 00:04:40,360 Speaker 2: to confirm the nomination that he put forward for the 75 00:04:40,360 --> 00:04:44,960 Speaker 2: Supreme Court, who also represented a majority of Americans, because 76 00:04:45,279 --> 00:04:49,480 Speaker 2: the Senate has become so malaportioned based on population. And 77 00:04:49,600 --> 00:04:52,560 Speaker 2: so I think part of the anxiety that you see, 78 00:04:52,600 --> 00:04:56,120 Speaker 2: particularly from the center, center, left and left of the 79 00:04:56,120 --> 00:04:58,880 Speaker 2: political spectrum here in the United States, that is a 80 00:04:58,960 --> 00:05:02,480 Speaker 2: byproduct of the feeling that the Supreme Court is representing 81 00:05:02,640 --> 00:05:08,000 Speaker 2: minoritarian on minoritarian on minoritarian interests and not in step 82 00:05:08,120 --> 00:05:11,760 Speaker 2: with kind of the general flow and trajectory of the 83 00:05:11,760 --> 00:05:14,760 Speaker 2: American body politics, as was the case perhaps in the 84 00:05:14,839 --> 00:05:17,960 Speaker 2: nineteen fifties and nineteen sixties. So there are similarities in 85 00:05:18,040 --> 00:05:21,960 Speaker 2: terms of the court reflecting winning coalitions to a certain extent, 86 00:05:22,040 --> 00:05:24,120 Speaker 2: both between the Warren Court and the Roberts Court. But 87 00:05:24,200 --> 00:05:27,320 Speaker 2: I think there are also very significant qualitated differences in 88 00:05:27,400 --> 00:05:29,200 Speaker 2: terms of where we are in the kind of a 89 00:05:29,240 --> 00:05:31,840 Speaker 2: longer term trajectory in American politics. 90 00:05:32,080 --> 00:05:35,080 Speaker 1: So let's talk about some of the cases. One of 91 00:05:35,160 --> 00:05:37,440 Speaker 1: the cases where it seemed to me that politics was 92 00:05:37,720 --> 00:05:41,279 Speaker 1: blatantly at play was the Idaho abortion case. There were 93 00:05:41,400 --> 00:05:45,039 Speaker 1: enough justices to place a stay on the district court 94 00:05:45,240 --> 00:05:49,760 Speaker 1: order so that Idaho could enforce its ban before the decision, 95 00:05:49,839 --> 00:05:51,960 Speaker 1: but then some of them must have had a change 96 00:05:51,960 --> 00:05:54,880 Speaker 1: of heart backed off, and in the dissent, Justice Alito 97 00:05:55,000 --> 00:05:59,240 Speaker 1: seemed to question why, and is the obvious answer the 98 00:05:59,320 --> 00:06:00,000 Speaker 1: upcoming alone. 99 00:06:01,839 --> 00:06:04,799 Speaker 2: I think the answer is it was absolutely the election, 100 00:06:04,920 --> 00:06:07,919 Speaker 2: and it was a feeling by a number of justices 101 00:06:07,960 --> 00:06:11,040 Speaker 2: on the Court that coming down with a ruling that 102 00:06:11,160 --> 00:06:17,760 Speaker 2: restricted abortion access further would be electorally damaging to conservatives 103 00:06:17,800 --> 00:06:21,720 Speaker 2: and Republicans across the country in a very important election cycle. 104 00:06:22,040 --> 00:06:25,080 Speaker 2: And I think one of the key dynamics here that 105 00:06:25,120 --> 00:06:27,799 Speaker 2: it's important to note is that this was of course 106 00:06:27,960 --> 00:06:30,960 Speaker 2: a dig right, so it was dismissed and providently granted, 107 00:06:31,080 --> 00:06:34,400 Speaker 2: which basically means that at least one of the members 108 00:06:34,520 --> 00:06:37,520 Speaker 2: who voted to hear the case in the first place 109 00:06:37,560 --> 00:06:41,600 Speaker 2: so voted to hear, sir, decided that no, they had 110 00:06:41,600 --> 00:06:43,599 Speaker 2: coal feet and they just didn't want to touch this, 111 00:06:43,880 --> 00:06:46,039 Speaker 2: And that to me suggests, you know, it was probably 112 00:06:46,040 --> 00:06:48,200 Speaker 2: not one of the liberals right who would get cold feet, 113 00:06:48,240 --> 00:06:50,320 Speaker 2: because they would not vote for curt unless they thought 114 00:06:50,320 --> 00:06:52,800 Speaker 2: they would certainly win, which with this court being as 115 00:06:52,839 --> 00:06:56,000 Speaker 2: conservative as it is, an anti abortion as it is, 116 00:06:56,120 --> 00:06:58,760 Speaker 2: you know, that wouldn't be a really safe bet. So 117 00:06:59,360 --> 00:07:04,440 Speaker 2: it's very like, if not absolutely certainty, that either Justice Barrett, 118 00:07:04,800 --> 00:07:08,960 Speaker 2: Chief Justice Roberts, or Justice Kavanaugh or in that group 119 00:07:08,960 --> 00:07:11,800 Speaker 2: who initially decided to hear this case and realize that 120 00:07:11,840 --> 00:07:13,600 Speaker 2: it was going to go in a way they didn't 121 00:07:13,640 --> 00:07:17,559 Speaker 2: particularly like, likely for political reasons, and they backed off. 122 00:07:17,680 --> 00:07:21,120 Speaker 2: And so I think the core disposition here at least 123 00:07:21,160 --> 00:07:25,400 Speaker 2: among the three more I would say more moderate conservatives. 124 00:07:25,440 --> 00:07:28,680 Speaker 2: I wouldn't call them moderates, but they're certainly less conservative 125 00:07:28,960 --> 00:07:36,720 Speaker 2: than say Justice Alito or Justice Thomas. But those three Kavanaugh, Roberts, Barrett, 126 00:07:36,960 --> 00:07:39,640 Speaker 2: I think hope that either they could pump this off 127 00:07:39,680 --> 00:07:42,679 Speaker 2: for another time and decide against the federal government during 128 00:07:42,920 --> 00:07:45,920 Speaker 2: a year that is not an election year, or they 129 00:07:45,920 --> 00:07:48,440 Speaker 2: could just sit back and hope Donald Trump wins the 130 00:07:48,480 --> 00:07:52,480 Speaker 2: presidency in November, wait for the Trump administration to reverse 131 00:07:52,600 --> 00:07:57,360 Speaker 2: course on this policy that bid an administration promulgated, and 132 00:07:57,440 --> 00:07:59,160 Speaker 2: then they won't have to touch it at all. So 133 00:07:59,240 --> 00:08:01,520 Speaker 2: this was really politics all the way down. 134 00:08:02,400 --> 00:08:05,680 Speaker 1: Now, the Eighth Amendment, we don't talk about it all 135 00:08:05,680 --> 00:08:08,080 Speaker 1: that much in the news, and the ban on cruel 136 00:08:08,120 --> 00:08:12,440 Speaker 1: and unusual punishment. The Supreme Court seems to often ignore 137 00:08:12,560 --> 00:08:15,520 Speaker 1: its protections and a lot of times the case is 138 00:08:15,880 --> 00:08:18,679 Speaker 1: involve criminal laws. But this term there was a case 139 00:08:18,760 --> 00:08:22,040 Speaker 1: involving homelessness. Tell us about that and what the court 140 00:08:22,080 --> 00:08:22,559 Speaker 1: did there. 141 00:08:23,040 --> 00:08:26,080 Speaker 2: So, in a case called City of Grant's Past, the 142 00:08:26,120 --> 00:08:30,040 Speaker 2: Supreme Court said that it does not violate the Eighth 143 00:08:30,040 --> 00:08:35,479 Speaker 2: Amendments ban on Cruel and Unusual punishment to essentially criminalize 144 00:08:35,800 --> 00:08:39,959 Speaker 2: people from camping in public spaces. And the hard part 145 00:08:40,000 --> 00:08:42,839 Speaker 2: here is that, you know, there's a couple of dynamics 146 00:08:42,880 --> 00:08:47,040 Speaker 2: that really make this situation agonizing, I think for people 147 00:08:47,040 --> 00:08:51,880 Speaker 2: who particularly are concerned about unhoused persons. And how you know, 148 00:08:52,000 --> 00:08:54,520 Speaker 2: we treat homelessness in the United States, which is, you know, 149 00:08:54,600 --> 00:08:58,120 Speaker 2: a lot of cities create policies and adopt public policies 150 00:08:58,280 --> 00:09:03,760 Speaker 2: that are not particularly friendly to affordable housing or density 151 00:09:03,840 --> 00:09:07,640 Speaker 2: which can make housing more available and cheaper and whatnot, 152 00:09:07,800 --> 00:09:10,840 Speaker 2: which could help ease some of these pressures. And you know, 153 00:09:10,880 --> 00:09:14,680 Speaker 2: cities also seem to be really resistant in many respects 154 00:09:14,720 --> 00:09:18,360 Speaker 2: to provide adequate services. And so you know, cities make 155 00:09:18,440 --> 00:09:21,920 Speaker 2: these deliberate policies which make it harder for people to 156 00:09:22,040 --> 00:09:26,040 Speaker 2: secure housing or to seek temporary shelter. But then at 157 00:09:26,040 --> 00:09:29,240 Speaker 2: the same time, say you can't just sleep outside, you 158 00:09:29,280 --> 00:09:31,800 Speaker 2: can't put up a tent, or we're going to basically 159 00:09:31,840 --> 00:09:36,880 Speaker 2: criminalize your essential existence as an unhoused person. And so 160 00:09:37,320 --> 00:09:40,240 Speaker 2: in this respect, the policy choices of cities is really 161 00:09:40,240 --> 00:09:42,280 Speaker 2: a way to kind of crown people and push them 162 00:09:42,320 --> 00:09:45,960 Speaker 2: out of their jurisdiction and say you're someone else's problem now, 163 00:09:46,120 --> 00:09:49,360 Speaker 2: and that puts people in a really tough bind and 164 00:09:49,400 --> 00:09:52,000 Speaker 2: it's really hard to get out, and so you know, 165 00:09:52,360 --> 00:09:54,280 Speaker 2: the majority basically said, well, you know, this is not 166 00:09:54,320 --> 00:09:57,880 Speaker 2: a problem, like you essentially have choices here as a person, 167 00:09:58,080 --> 00:10:03,040 Speaker 2: and that's that there's no constitutional refuge or shield here 168 00:10:03,360 --> 00:10:05,760 Speaker 2: under the Eighth Amendment. Whereas I think that the centers 169 00:10:06,120 --> 00:10:10,479 Speaker 2: understood the bind that people face in these very tough situations. 170 00:10:10,800 --> 00:10:12,920 Speaker 2: I think what's telling in some respects, at least for 171 00:10:13,040 --> 00:10:17,400 Speaker 2: me as a scholar of political history and particularly somebody 172 00:10:17,480 --> 00:10:20,480 Speaker 2: who is focused on reconstruction. You know, so much of 173 00:10:20,520 --> 00:10:24,280 Speaker 2: this court is hell bent on originalist principles. And it's 174 00:10:24,360 --> 00:10:27,120 Speaker 2: kind of ironic because, you know, if you look back 175 00:10:27,200 --> 00:10:31,320 Speaker 2: to the eighteen sixties when zoadical Republicans were running the 176 00:10:31,360 --> 00:10:34,880 Speaker 2: show and reconstruction was on their mind, and the Fourteenth 177 00:10:34,880 --> 00:10:38,240 Speaker 2: Amendment came into play, as did the forerunner to the 178 00:10:38,280 --> 00:10:41,400 Speaker 2: Fourteenth Amendment, the Civil Rights Act of eighteen sixty six. 179 00:10:41,640 --> 00:10:44,320 Speaker 2: These lost many respects for us to push back on 180 00:10:44,440 --> 00:10:47,640 Speaker 2: seven states which use vacancy walls, which were very similar 181 00:10:47,800 --> 00:10:49,480 Speaker 2: right to what is that play here in the City 182 00:10:49,480 --> 00:10:53,960 Speaker 2: of Grant Pass case, and basically track people either you know, 183 00:10:54,040 --> 00:10:57,559 Speaker 2: working on certain plantations or working in certain conditions kind 184 00:10:57,600 --> 00:11:00,439 Speaker 2: of fleeing the jurisdiction. And the huge part one of 185 00:11:00,440 --> 00:11:02,880 Speaker 2: the pushback against that was that people should have freedom 186 00:11:02,880 --> 00:11:06,120 Speaker 2: of movement. And you know, there were certainly people who 187 00:11:06,160 --> 00:11:09,400 Speaker 2: also thought that there was a requirement and an obligation 188 00:11:09,520 --> 00:11:12,800 Speaker 2: on government to provide some kind of basic social safety net. 189 00:11:13,000 --> 00:11:17,480 Speaker 2: And this is a particularly important point that reconstruction legislators 190 00:11:17,520 --> 00:11:20,040 Speaker 2: in South Carolina made in the late eighteen sixties and 191 00:11:20,080 --> 00:11:23,040 Speaker 2: or only eighteen seventies. But there's no originalism here, right, 192 00:11:23,080 --> 00:11:25,720 Speaker 2: There's kind of no originalism for folks who are poor. 193 00:11:25,960 --> 00:11:28,400 Speaker 2: And I think that's really kind of telling in some 194 00:11:28,480 --> 00:11:32,080 Speaker 2: respects about what this court is doing. It's not some 195 00:11:32,200 --> 00:11:36,600 Speaker 2: kind of neutral jurisprudential decision making. They make decisions on 196 00:11:36,640 --> 00:11:40,480 Speaker 2: an ad hoc basis, implementing whatever kind of constitutional tools 197 00:11:40,480 --> 00:11:43,560 Speaker 2: of interpretation they want as they see fit. There's really 198 00:11:43,600 --> 00:11:45,880 Speaker 2: no rhyme or reason to it other than they see 199 00:11:45,880 --> 00:11:49,400 Speaker 2: an issue and they craft a rule based on what 200 00:11:49,480 --> 00:11:52,840 Speaker 2: they viscerally and politically feel is the right outcome. 201 00:11:53,000 --> 00:11:55,800 Speaker 1: Coming up next on the Bloomberg Lawn Show, what happened 202 00:11:55,840 --> 00:11:59,880 Speaker 1: to the Chief Justice being an institutionalist who believed in 203 00:12:00,120 --> 00:12:03,760 Speaker 1: judges only calling balls and strikes. I'm June Grosso and 204 00:12:03,800 --> 00:12:09,000 Speaker 1: you're listening to Bloomberg. The Supreme Court's fractured decision in 205 00:12:09,040 --> 00:12:12,680 Speaker 1: an important gun rights case. This term shows the justices 206 00:12:12,800 --> 00:12:16,000 Speaker 1: can't quite agree on how to use history and tradition 207 00:12:16,240 --> 00:12:21,000 Speaker 1: to analyze the constitutionality of firearm restrictions. The eight to 208 00:12:21,080 --> 00:12:24,160 Speaker 1: one ruling in the Rahemi case, which upheld a federal 209 00:12:24,240 --> 00:12:28,360 Speaker 1: law that bans people's subject to domestic violence restraining orders 210 00:12:28,600 --> 00:12:32,800 Speaker 1: from possessing a gun, elicited separate writings from seven of 211 00:12:32,840 --> 00:12:37,400 Speaker 1: the nine justices. Concurrences on both sides of the ideological 212 00:12:37,480 --> 00:12:40,800 Speaker 1: line show there's a rigorous debate going on over the 213 00:12:40,880 --> 00:12:46,040 Speaker 1: legal theory of originalism, which the Court's conservative majority has embraced. 214 00:12:46,559 --> 00:12:49,320 Speaker 1: I've been talking to Anthony Michael Christ, a professor at 215 00:12:49,320 --> 00:12:52,720 Speaker 1: the Georgia State University College of Law. Do you think, 216 00:12:52,760 --> 00:12:55,440 Speaker 1: not only in this case, but in other cases, it's 217 00:12:55,480 --> 00:12:59,640 Speaker 1: sort of exposed the problems with originalism and riffs among 218 00:12:59,679 --> 00:13:06,240 Speaker 1: the conservatives about originalism especially. I think it showed in 219 00:13:06,280 --> 00:13:09,320 Speaker 1: the Raheemi case. I think, where you know, what is it? 220 00:13:09,360 --> 00:13:11,560 Speaker 1: Everyone has a different you know, not everyone, but there 221 00:13:11,559 --> 00:13:13,920 Speaker 1: are so many different opinions what is originalism? 222 00:13:14,440 --> 00:13:17,359 Speaker 2: I think the Rahemi case is really telling in some respects. 223 00:13:17,480 --> 00:13:21,360 Speaker 2: It's ironic to me that Justice Tummas, who wrote the 224 00:13:21,400 --> 00:13:23,680 Speaker 2: decision a couple of years ago in Bruin which was 225 00:13:23,800 --> 00:13:27,920 Speaker 2: this right revolutionary Second Amendment case, basically was a loan 226 00:13:28,000 --> 00:13:31,240 Speaker 2: to center in Rahimi and said, well, you don't really 227 00:13:31,320 --> 00:13:35,000 Speaker 2: understand what I wrote. And so you know that that 228 00:13:35,080 --> 00:13:37,280 Speaker 2: kind of undercuts the whole point of originalism, right when 229 00:13:37,320 --> 00:13:41,280 Speaker 2: you have the author of an opinion that received majority 230 00:13:41,400 --> 00:13:44,880 Speaker 2: vote by members of the United States Supreme Court saying 231 00:13:45,280 --> 00:13:47,800 Speaker 2: to other people in the Supreme Court you don't understand 232 00:13:47,840 --> 00:13:49,640 Speaker 2: just a couple of years later what I actually meant 233 00:13:49,960 --> 00:13:54,959 Speaker 2: kind of ironically undercuts originalism and its alleged integrity as 234 00:13:55,000 --> 00:13:57,880 Speaker 2: a tool of interpretation. But I think the other thing 235 00:13:57,960 --> 00:14:00,920 Speaker 2: is that it has shown some crack in that people 236 00:14:01,200 --> 00:14:05,720 Speaker 2: have understood that originalism has applied in a very strict 237 00:14:05,840 --> 00:14:11,600 Speaker 2: and narrow sense, had unworkable and untenable outcome. And I think, frankly, 238 00:14:11,920 --> 00:14:15,640 Speaker 2: the fact that the justices all raandly rejected this idea 239 00:14:15,920 --> 00:14:20,400 Speaker 2: that the Second Amendment should somehow protect domestic abusers and 240 00:14:20,520 --> 00:14:23,080 Speaker 2: allow them to have weapons. You know, most people in 241 00:14:23,080 --> 00:14:25,240 Speaker 2: the United States, I think, would say they agree that 242 00:14:25,240 --> 00:14:28,200 Speaker 2: that should not be the case. But if you applied 243 00:14:28,560 --> 00:14:31,120 Speaker 2: just to Thomas's tests that he articulated a couple of 244 00:14:31,160 --> 00:14:34,920 Speaker 2: years ago in a truly faithful way, the outcome would 245 00:14:34,920 --> 00:14:38,280 Speaker 2: have been different. And so I think the Rashini case 246 00:14:38,320 --> 00:14:42,880 Speaker 2: in some respects illustrates how there's this kind of roving 247 00:14:43,480 --> 00:14:45,760 Speaker 2: attempt by a number of the members of the Court 248 00:14:45,920 --> 00:14:48,720 Speaker 2: to apply originalism where it works for them, and to 249 00:14:49,360 --> 00:14:52,520 Speaker 2: kind of push back a bit where it doesn't. And that, again, 250 00:14:52,640 --> 00:14:57,880 Speaker 2: I think truly is astonishing for a group of people 251 00:14:58,040 --> 00:15:02,640 Speaker 2: who suggest that originalism is the one, only and true 252 00:15:02,680 --> 00:15:04,160 Speaker 2: way to interpret the Constitution. 253 00:15:04,920 --> 00:15:08,280 Speaker 1: And you point out that there were cases where the 254 00:15:08,320 --> 00:15:15,000 Speaker 1: Court sort of applied lenient statutory interpretations to benefit, for example, 255 00:15:15,040 --> 00:15:18,560 Speaker 1: the January sixth defendants and white collar criminals. 256 00:15:19,080 --> 00:15:22,880 Speaker 2: Yeah, so to me, one of the interesting cases that 257 00:15:22,920 --> 00:15:26,760 Speaker 2: the Supreme Court decided was a case dealing with January 258 00:15:26,840 --> 00:15:31,160 Speaker 2: sixth defendants called Fisher. And in Fisher, there was again 259 00:15:31,200 --> 00:15:34,120 Speaker 2: it can just catch all phrase that if you apply 260 00:15:34,200 --> 00:15:36,840 Speaker 2: it a very strict form of textualism that somebody like 261 00:15:36,920 --> 00:15:41,800 Speaker 2: Neil Gorsuch would often propose as being his preferred way 262 00:15:41,840 --> 00:15:44,440 Speaker 2: of statutory interpretation, he makes sure have come out with 263 00:15:44,480 --> 00:15:48,280 Speaker 2: a different outcome that didn't favor the January sixth defendants. 264 00:15:48,480 --> 00:15:50,680 Speaker 2: And so I think there are a lot of people, 265 00:15:50,800 --> 00:15:54,000 Speaker 2: myself included, who may say that that decision of Fisher, 266 00:15:54,000 --> 00:15:56,880 Speaker 2: as a matter of statutory interpretation, it might make sense, 267 00:15:56,920 --> 00:16:00,360 Speaker 2: it might not. There might be some reasonable disagreement about 268 00:16:00,400 --> 00:16:04,160 Speaker 2: what that decision should have looked like. But the decision itself, 269 00:16:04,560 --> 00:16:09,040 Speaker 2: here's kind of the veil of legislative intent and legislative 270 00:16:09,200 --> 00:16:13,360 Speaker 2: history in order to reach an outcome, and there are 271 00:16:13,360 --> 00:16:16,280 Speaker 2: a number of justices who sign onto the opinion who 272 00:16:16,440 --> 00:16:20,200 Speaker 2: generally reject that as an approach to interpreting a statute. 273 00:16:20,200 --> 00:16:22,680 Speaker 2: And so I think one of the things that is 274 00:16:22,840 --> 00:16:26,080 Speaker 2: something we should debate perhaps is whether or not these 275 00:16:26,200 --> 00:16:29,440 Speaker 2: justices are being principled or whether they are again just 276 00:16:29,520 --> 00:16:32,800 Speaker 2: kind of approaching these cases like lack a mole and 277 00:16:32,920 --> 00:16:36,320 Speaker 2: hitting the kind of originalist opportunities where they come up 278 00:16:36,440 --> 00:16:39,560 Speaker 2: and avoid them where that kind of approach doesn't really 279 00:16:39,600 --> 00:16:42,440 Speaker 2: work for the outcomes that they truly desire. And so 280 00:16:42,720 --> 00:16:45,480 Speaker 2: I think the real questions that arose out of this 281 00:16:45,640 --> 00:16:48,760 Speaker 2: term cases which really is ripe for debate about whether 282 00:16:48,840 --> 00:16:52,000 Speaker 2: or not the justices are being true in terms of 283 00:16:52,400 --> 00:16:55,320 Speaker 2: adhering to this kind of principle or this kind of 284 00:16:55,360 --> 00:16:59,600 Speaker 2: theory or kind of pool of interpretation uniformally, no matter 285 00:16:59,600 --> 00:17:02,760 Speaker 2: what the out I think they're often disingenuous in that respect. 286 00:17:02,880 --> 00:17:05,840 Speaker 1: So along that line, when Trump was contesting the election 287 00:17:05,920 --> 00:17:08,399 Speaker 1: in twenty twenty, it seemed like the court didn't do 288 00:17:08,560 --> 00:17:12,640 Speaker 1: him any favors, but this term they gave him everything 289 00:17:12,680 --> 00:17:16,080 Speaker 1: he wanted. In more, you mentioned the January sixth case. 290 00:17:16,560 --> 00:17:20,480 Speaker 1: There was that incredibly broad ruling on presidential immunity. They 291 00:17:20,520 --> 00:17:24,040 Speaker 1: refused to allow Colorado officials to remove him from the ballot. 292 00:17:24,320 --> 00:17:28,560 Speaker 1: What happened? Why did they go so far to try 293 00:17:28,600 --> 00:17:29,639 Speaker 1: to insulate Trump? 294 00:17:30,359 --> 00:17:32,920 Speaker 2: I think the big difference is that many people fell 295 00:17:33,320 --> 00:17:38,960 Speaker 2: in twenty twenty that President Trump at the time had 296 00:17:39,280 --> 00:17:43,640 Speaker 2: very weak political standing. There was a sense that there 297 00:17:43,760 --> 00:17:47,720 Speaker 2: was going to be a total, perhaps landslide in favor 298 00:17:47,720 --> 00:17:49,920 Speaker 2: of Joe Biden, and that of course didn't really happen. 299 00:17:49,960 --> 00:17:53,200 Speaker 2: The election was much close, or I think most people anticipated, 300 00:17:53,400 --> 00:17:55,840 Speaker 2: and that was both of the presidential election but also 301 00:17:56,119 --> 00:17:58,639 Speaker 2: in terms of the Senate and the House of representative 302 00:17:58,800 --> 00:18:01,359 Speaker 2: of results as well, but there was a sense that 303 00:18:01,359 --> 00:18:04,400 Speaker 2: that was probably going to come to pass. And even 304 00:18:04,440 --> 00:18:06,800 Speaker 2: when it didn't come to pass, at that point, Donald 305 00:18:06,840 --> 00:18:10,760 Speaker 2: Trump had lost and so the wins in his sales 306 00:18:11,280 --> 00:18:14,639 Speaker 2: were completely disflated, and so there really was no benefit 307 00:18:14,760 --> 00:18:16,920 Speaker 2: to the Supreme Court to go out of their way 308 00:18:16,960 --> 00:18:19,160 Speaker 2: to help Donald Trump. And if they did, that would 309 00:18:19,280 --> 00:18:25,280 Speaker 2: also severely risk their own institutional capital. And that's not true. Now. 310 00:18:25,440 --> 00:18:28,359 Speaker 2: Now you have a resurgent Trump. You have an income 311 00:18:28,520 --> 00:18:31,680 Speaker 2: president who very well may beat Donald Trump, but who 312 00:18:31,720 --> 00:18:34,879 Speaker 2: seems to be a little weaker than what most incumbents 313 00:18:34,880 --> 00:18:37,480 Speaker 2: would want to be at this point in the presidential race. 314 00:18:37,960 --> 00:18:41,000 Speaker 2: And they also don't want to risk the ire of 315 00:18:41,119 --> 00:18:44,879 Speaker 2: Donald Trump should Donald Trump win the election in November, 316 00:18:44,920 --> 00:18:47,800 Speaker 2: And so you know, that's all kind of in that mix. 317 00:18:48,160 --> 00:18:50,439 Speaker 2: And then of course they're the Conservatives are looking up 318 00:18:50,480 --> 00:18:53,080 Speaker 2: for their own interest I suspect, which is they would 319 00:18:53,200 --> 00:18:57,639 Speaker 2: much rather have a seven to two, eight one nine 320 00:18:57,800 --> 00:19:01,640 Speaker 2: zero conservative Supreme Court if they could have it, and 321 00:19:01,680 --> 00:19:06,200 Speaker 2: not having a Republican win in November makes it less 322 00:19:06,560 --> 00:19:09,800 Speaker 2: likely that there will be more Conservatives on the Court 323 00:19:09,880 --> 00:19:13,000 Speaker 2: a few years from now than there are today. So 324 00:19:13,440 --> 00:19:15,879 Speaker 2: there are a number of different issues that are at play, 325 00:19:15,960 --> 00:19:18,679 Speaker 2: but I certainly think that some of the change in 326 00:19:18,840 --> 00:19:22,720 Speaker 2: tone is political. And I also think though that some 327 00:19:22,760 --> 00:19:25,680 Speaker 2: of the key issues, for example, the Presidential Community case, 328 00:19:25,880 --> 00:19:28,680 Speaker 2: the number of members of this Court have truly believed 329 00:19:28,800 --> 00:19:32,560 Speaker 2: in a doctrine that has empowered the executive. They believe 330 00:19:32,800 --> 00:19:35,800 Speaker 2: in a unitary executive. They believe that the president should 331 00:19:35,840 --> 00:19:40,280 Speaker 2: have the power to really wrestle control of administrative agencies 332 00:19:40,480 --> 00:19:43,280 Speaker 2: and change policy as they see fit in things of 333 00:19:43,320 --> 00:19:46,639 Speaker 2: that nature. And so to the extent too, that they 334 00:19:46,640 --> 00:19:49,800 Speaker 2: could write an opinion that is reflective of their very 335 00:19:49,840 --> 00:19:55,320 Speaker 2: long standing ideological commitments in consolidating executive power and do 336 00:19:55,520 --> 00:19:58,080 Speaker 2: so in a way that could at least temporarily, if 337 00:19:58,080 --> 00:20:03,080 Speaker 2: not long term, benefit Trump as perhaps the preferred presidential 338 00:20:03,080 --> 00:20:04,399 Speaker 2: candidate they're going to do. So. 339 00:20:04,720 --> 00:20:08,760 Speaker 1: You mentioned the administrative state basically, and the administrative state 340 00:20:08,840 --> 00:20:12,280 Speaker 1: took hit after hit from the Court this term, and 341 00:20:12,520 --> 00:20:16,879 Speaker 1: now with its decisions, it places power in the federal 342 00:20:17,000 --> 00:20:21,760 Speaker 1: judiciary rather than in experts and agencies. So are we 343 00:20:21,880 --> 00:20:26,840 Speaker 1: bound to see decisions based on the political views of 344 00:20:27,280 --> 00:20:30,880 Speaker 1: federal judges more and more now that they don't have 345 00:20:31,160 --> 00:20:33,120 Speaker 1: to worry about Chevron deference. 346 00:20:33,440 --> 00:20:36,360 Speaker 2: I think it's possible that you could see that there 347 00:20:36,440 --> 00:20:40,840 Speaker 2: is I think, to some extent, a somewhat limiting factor here, 348 00:20:40,880 --> 00:20:44,560 Speaker 2: which is there will be times, perhaps where judges will 349 00:20:44,920 --> 00:20:49,119 Speaker 2: be a little squeamish of wading into a particular policy 350 00:20:49,640 --> 00:20:52,640 Speaker 2: and pushing back against it because they just don't have 351 00:20:53,240 --> 00:20:57,159 Speaker 2: the kind of capacity in terms of technical expertise to 352 00:20:57,240 --> 00:20:59,760 Speaker 2: do so. There will be other areas, I think this 353 00:20:59,840 --> 00:21:03,800 Speaker 2: is particularly true in environmental policy perhaps, but there will 354 00:21:03,800 --> 00:21:06,320 Speaker 2: be other areas where judges will feel a lot more 355 00:21:06,560 --> 00:21:10,720 Speaker 2: comfortable stepping in and pushing back against administrative state. But 356 00:21:11,240 --> 00:21:14,399 Speaker 2: when that does happen, and when judges do feel comfortable 357 00:21:14,520 --> 00:21:21,040 Speaker 2: and more at ease to inquire into the rationality of 358 00:21:21,200 --> 00:21:25,119 Speaker 2: a particular agency's policy, you know, certainly when you're asking 359 00:21:25,320 --> 00:21:29,920 Speaker 2: something rational or you know something kind of passle sness test, 360 00:21:30,080 --> 00:21:33,240 Speaker 2: you know, whatever, the test that eventually gets developed, because 361 00:21:33,280 --> 00:21:35,520 Speaker 2: of course we have a rule from the local right case, 362 00:21:35,560 --> 00:21:37,520 Speaker 2: but we don't really know how it's going to be 363 00:21:37,560 --> 00:21:40,080 Speaker 2: fleshed out over time. I think there is a lot 364 00:21:40,080 --> 00:21:44,760 Speaker 2: more room perhaps for mischief now where a judge's personal 365 00:21:44,800 --> 00:21:49,560 Speaker 2: policy preferences will be easily substituted for whatever the inmistry 366 00:21:49,600 --> 00:21:52,560 Speaker 2: of agency wants to do. So certainly that is a risk, 367 00:21:53,080 --> 00:21:55,199 Speaker 2: but I do think that we'll have to wait and 368 00:21:55,280 --> 00:21:58,320 Speaker 2: see for the next few years how this all shaked out. 369 00:21:58,400 --> 00:22:02,280 Speaker 1: Over time, the Chief Justice John Roberts, he used to care, 370 00:22:02,760 --> 00:22:04,960 Speaker 1: or he seemed to care, about the public's view of 371 00:22:05,000 --> 00:22:08,639 Speaker 1: the Court, about the Court as an institution, claiming, you know, 372 00:22:08,880 --> 00:22:13,440 Speaker 1: justices are not politicians, that they're just calling balls and strikes. 373 00:22:14,080 --> 00:22:17,240 Speaker 1: What do you think happened this term that he seemed 374 00:22:17,240 --> 00:22:18,880 Speaker 1: to throw away that concern. 375 00:22:20,240 --> 00:22:22,960 Speaker 2: That's a good question. I think for a long time, 376 00:22:24,280 --> 00:22:27,720 Speaker 2: Justice Roberts was dealing with a court that was really 377 00:22:27,760 --> 00:22:31,600 Speaker 2: straddling an ideological lead avoid a bit where any case 378 00:22:31,600 --> 00:22:36,240 Speaker 2: could come out five to four. Really truly, before Donald 379 00:22:36,280 --> 00:22:38,959 Speaker 2: Trump took office, you know, the Supreme Court was still 380 00:22:39,359 --> 00:22:44,080 Speaker 2: incredibly conservative. Even though it had a lot more ideological 381 00:22:44,080 --> 00:22:46,760 Speaker 2: diversity on it, the court was certainly right of center. 382 00:22:47,000 --> 00:22:50,320 Speaker 2: And you know, when Justice Kennedy left the bench a 383 00:22:50,359 --> 00:22:52,520 Speaker 2: couple of years into Donald Trump's term, you know, the 384 00:22:52,560 --> 00:22:56,919 Speaker 2: court went vastly right ward. But I think despite the 385 00:22:56,960 --> 00:23:02,240 Speaker 2: Court's conservative dynamics before the Trump innistriction, John Roberts still 386 00:23:02,440 --> 00:23:05,439 Speaker 2: had to cobble together coalitions, and I think that there 387 00:23:05,520 --> 00:23:09,200 Speaker 2: was a sense that the American public was becoming increasingly liberal, 388 00:23:09,520 --> 00:23:12,240 Speaker 2: especially on social issues and some of these kind of 389 00:23:12,240 --> 00:23:16,360 Speaker 2: hot button issues that were very salient during the Aboma administration. 390 00:23:16,960 --> 00:23:19,080 Speaker 2: I think there was a sense that he really had 391 00:23:19,119 --> 00:23:21,639 Speaker 2: to keep together a coalition of five and so there 392 00:23:21,880 --> 00:23:25,880 Speaker 2: might be some internal judicial politics at play there. It's 393 00:23:25,960 --> 00:23:28,200 Speaker 2: really hard to say, but I think what we can 394 00:23:28,520 --> 00:23:32,119 Speaker 2: for certain day is that he has seen, for whatever reason, 395 00:23:32,160 --> 00:23:34,320 Speaker 2: the Court, you know, in his view, needs and can 396 00:23:34,400 --> 00:23:39,119 Speaker 2: take a sharp turn. Right now, it's hard to understand exactly, 397 00:23:39,440 --> 00:23:42,960 Speaker 2: I think without the perspective of more time to kind 398 00:23:42,960 --> 00:23:46,919 Speaker 2: of grasp exactly what's happened there, but there is I 399 00:23:47,119 --> 00:23:53,119 Speaker 2: think a noticeable shift in the Chief Justices perspective on 400 00:23:53,480 --> 00:23:56,639 Speaker 2: the Court as an institution, in the institutional capital that 401 00:23:56,680 --> 00:23:59,240 Speaker 2: it had. There are some risks to that. I think 402 00:23:59,280 --> 00:24:01,680 Speaker 2: that opens up the Court to a lot more political 403 00:24:01,880 --> 00:24:04,720 Speaker 2: tax you know, and so we'll have to see if 404 00:24:04,760 --> 00:24:07,720 Speaker 2: that works out to his benefit in the longer term. 405 00:24:08,320 --> 00:24:11,520 Speaker 1: So, as you point out, the conservatives have played a 406 00:24:11,560 --> 00:24:15,480 Speaker 1: long game with the Supreme Court. So at this point, 407 00:24:16,359 --> 00:24:19,320 Speaker 1: what is it that liberals or those in the center 408 00:24:19,800 --> 00:24:22,479 Speaker 1: can do because the court is what the court is, 409 00:24:22,520 --> 00:24:25,080 Speaker 1: and it's in power, and can anything be done. 410 00:24:26,080 --> 00:24:29,680 Speaker 2: I think the lessons of liberals is that there needs 411 00:24:29,680 --> 00:24:32,280 Speaker 2: to be a long game played in a way that 412 00:24:32,400 --> 00:24:36,160 Speaker 2: is somewhat similar to what conservatives did in the late 413 00:24:36,240 --> 00:24:39,680 Speaker 2: nineteen seventies and kind of hyper charge in the early 414 00:24:39,760 --> 00:24:43,159 Speaker 2: nineteen eighties. Liberals don't have. I mean, there's certainly the 415 00:24:43,200 --> 00:24:46,600 Speaker 2: American Constitution Society, which folks may be familiar with, which 416 00:24:46,640 --> 00:24:49,640 Speaker 2: is in many respects kind of a liberal version of 417 00:24:49,680 --> 00:24:52,919 Speaker 2: the Federalist Society, which many people are familiar with. But 418 00:24:52,920 --> 00:24:56,800 Speaker 2: the Federal Society is a really powerful organization that began 419 00:24:57,000 --> 00:24:59,760 Speaker 2: as a small conference at Yale in nineteen eighty two. 420 00:25:00,119 --> 00:25:02,520 Speaker 2: A lot of work had to be put in by 421 00:25:02,840 --> 00:25:07,920 Speaker 2: conservatives and libertarians into that organization to get it in 422 00:25:08,000 --> 00:25:10,040 Speaker 2: a place where it's kind of at the center of power. Right. 423 00:25:10,080 --> 00:25:12,359 Speaker 2: It took forty years to be at the true center 424 00:25:12,400 --> 00:25:15,600 Speaker 2: of power, but it really was a very important institution 425 00:25:16,119 --> 00:25:20,119 Speaker 2: in terms of developing lawyers into judges and putting people 426 00:25:20,200 --> 00:25:25,360 Speaker 2: into places political power, and being a truly important center 427 00:25:25,840 --> 00:25:29,560 Speaker 2: for networking and the spread of ideas that would later 428 00:25:29,640 --> 00:25:33,280 Speaker 2: become by constitutional law. The liberals, I think, need to 429 00:25:33,480 --> 00:25:38,159 Speaker 2: understand that that kind of organizational power, that kind of 430 00:25:38,280 --> 00:25:43,240 Speaker 2: structural political force, is required in order to make the 431 00:25:43,359 --> 00:25:46,160 Speaker 2: law turn left. So they're going to have to create 432 00:25:46,200 --> 00:25:48,680 Speaker 2: those organizations or invest in the ones that already exist, 433 00:25:48,960 --> 00:25:53,080 Speaker 2: and understand that that is a long term investment. At 434 00:25:53,080 --> 00:25:55,399 Speaker 2: the same time, I think a lot of liberals have 435 00:25:55,520 --> 00:25:58,760 Speaker 2: been kind of deluded for years by the war in 436 00:25:58,800 --> 00:26:02,080 Speaker 2: court in particular, even that Court will save us right, 437 00:26:02,119 --> 00:26:05,040 Speaker 2: that there's some kind of liberal value in the American 438 00:26:05,080 --> 00:26:09,280 Speaker 2: constitutional order as embodies by the courts in the nineteen 439 00:26:09,320 --> 00:26:12,040 Speaker 2: fifties and nineteen sixties, that is going to kind of 440 00:26:12,080 --> 00:26:15,480 Speaker 2: live on in perpetuity. And that's just not the case. 441 00:26:16,160 --> 00:26:20,119 Speaker 2: Constitutional law begins at the ballot box, and in particular, 442 00:26:20,280 --> 00:26:24,439 Speaker 2: begins at the ballot box in presidential election years. And 443 00:26:24,480 --> 00:26:27,560 Speaker 2: so I think for folks who look at the Court's 444 00:26:27,560 --> 00:26:31,280 Speaker 2: conservatism and are kind of struck by it as being 445 00:26:31,640 --> 00:26:35,200 Speaker 2: bad for the United States or reflecting values that they 446 00:26:35,240 --> 00:26:38,240 Speaker 2: disagree with, then the response has to be to create 447 00:26:38,400 --> 00:26:42,760 Speaker 2: organizations and the kind of structural political forces to push 448 00:26:42,800 --> 00:26:47,239 Speaker 2: back against that and to invest in electoral politics. And 449 00:26:47,280 --> 00:26:50,959 Speaker 2: that's really important. Courts don't operate in their kind of independent, 450 00:26:51,000 --> 00:26:55,640 Speaker 2: isolated sphere. They are truly part of a broader political atmosphere. 451 00:26:55,720 --> 00:26:57,439 Speaker 1: Thanks so much for being on the show and sharing 452 00:26:57,480 --> 00:27:01,960 Speaker 1: your insights about this term, Professor Anthony Michael Christ of 453 00:27:02,000 --> 00:27:05,760 Speaker 1: the Georgia State University College of Law. Coming up next, 454 00:27:06,040 --> 00:27:09,000 Speaker 1: the corruption trial of Senator Bob Menendez is coming to 455 00:27:09,080 --> 00:27:13,199 Speaker 1: a close. This is Bloomberg. In eight weeks of trial, 456 00:27:13,240 --> 00:27:17,240 Speaker 1: the government has presented a sprawling case against Democratic Senator 457 00:27:17,280 --> 00:27:21,720 Speaker 1: Bob Menendez, with testimony from a cooperating witness and more 458 00:27:21,760 --> 00:27:26,040 Speaker 1: than a thousand pieces of evidence, including thirteen goal bars, 459 00:27:26,240 --> 00:27:30,960 Speaker 1: five hundred thousand dollars in cash, and a secret FBI videotape. 460 00:27:31,320 --> 00:27:35,399 Speaker 1: Federal prosecutors say Menendez put his power up for sale, 461 00:27:35,760 --> 00:27:39,439 Speaker 1: pursuing bribes for years while promising to use his power 462 00:27:39,720 --> 00:27:42,359 Speaker 1: to help those who paid him, in a clear pattern 463 00:27:42,400 --> 00:27:46,240 Speaker 1: of corruption. The defense says prosecutors have not come close 464 00:27:46,280 --> 00:27:49,080 Speaker 1: to meeting their burden of showing the gold or cash 465 00:27:49,320 --> 00:27:52,160 Speaker 1: was given as a bribe. The seventy year old senator 466 00:27:52,200 --> 00:27:57,119 Speaker 1: is accused of bribery, extortion, fraud, conspiracy, obstruction of justice, 467 00:27:57,400 --> 00:28:00,159 Speaker 1: and acting as a foreign agent of Egypt and he 468 00:28:00,200 --> 00:28:04,040 Speaker 1: faces decades in prison if convicted. Join me from the 469 00:28:04,040 --> 00:28:08,000 Speaker 1: courthouse is Bloomberg Legal reporter David Voriancis, who's been covering 470 00:28:08,040 --> 00:28:11,480 Speaker 1: the trial. David tell us about the prosecution's theory of 471 00:28:11,520 --> 00:28:11,960 Speaker 1: the case. 472 00:28:12,480 --> 00:28:17,760 Speaker 3: The prosecution theory is that Senator Robert Menendez engaged in 473 00:28:17,800 --> 00:28:22,199 Speaker 3: a five year bribery scheme with his wife, who was 474 00:28:22,840 --> 00:28:25,920 Speaker 3: his girlfriend for much of the period, and with two 475 00:28:26,600 --> 00:28:31,639 Speaker 3: New Jersey businessmen who paid him bribes in exchange or 476 00:28:31,760 --> 00:28:37,000 Speaker 3: official actions. They also say that Menendez acted as an 477 00:28:37,119 --> 00:28:42,120 Speaker 3: agent of the nation of Egypt, taking several actions or 478 00:28:42,160 --> 00:28:46,400 Speaker 3: promising to take several official actions that would benefit that country. 479 00:28:46,800 --> 00:28:51,760 Speaker 3: They say that Menendez also obstructed justice when his lawyers 480 00:28:51,800 --> 00:28:55,120 Speaker 3: tried to head off an indictment before it happened by 481 00:28:55,240 --> 00:28:58,680 Speaker 3: lying to prosecutors about some of the underlying facts of 482 00:28:58,720 --> 00:29:04,680 Speaker 3: the case. And they say that Menendez was quite sophisticated 483 00:29:04,840 --> 00:29:08,760 Speaker 3: and cunning in the way that he acted over several years, 484 00:29:09,280 --> 00:29:14,040 Speaker 3: never being too obvious or overt in his demands, but 485 00:29:14,280 --> 00:29:19,320 Speaker 3: always taking money, particularly when his wife Nadine needed it. 486 00:29:19,720 --> 00:29:24,520 Speaker 1: What was the strongest evidence the prosecution had against Menendez? 487 00:29:24,560 --> 00:29:26,040 Speaker 2: In your view, I thought. 488 00:29:25,800 --> 00:29:29,920 Speaker 3: They did an excellent job of building a circumstantial case 489 00:29:30,360 --> 00:29:36,719 Speaker 3: that married the timing of various texts, emails, actions, meetings, 490 00:29:36,960 --> 00:29:43,120 Speaker 3: photographs with what they say were bribes received by Menendez 491 00:29:43,280 --> 00:29:47,240 Speaker 3: and official actions or the promise of official actions that 492 00:29:47,360 --> 00:29:52,240 Speaker 3: he took. So they built three different long summary charts 493 00:29:52,600 --> 00:29:57,400 Speaker 3: that FBI officials introduced to the jury, and that was 494 00:29:57,480 --> 00:30:01,640 Speaker 3: their way of bringing in literally hundreds of texts and 495 00:30:01,760 --> 00:30:05,880 Speaker 3: emails that showed over a five year period. This is 496 00:30:05,920 --> 00:30:09,760 Speaker 3: what Menendez was thinking, This is what Nadine Arslanian later 497 00:30:09,920 --> 00:30:14,280 Speaker 3: his wife Nadine Menendez was thinking. This is what Fred 498 00:30:14,360 --> 00:30:18,040 Speaker 3: Bavies and Will Hannah, who our defendants were doing, and 499 00:30:18,160 --> 00:30:21,680 Speaker 3: a whole long list of characters that are also involved 500 00:30:21,720 --> 00:30:23,040 Speaker 3: in this case in some way. 501 00:30:23,680 --> 00:30:27,400 Speaker 1: How much depends on the testimony of the witness who 502 00:30:27,480 --> 00:30:29,080 Speaker 1: flipped Jose Rebey. 503 00:30:29,480 --> 00:30:32,920 Speaker 3: It depends on who you ask. If prosecutors say that 504 00:30:33,040 --> 00:30:37,800 Speaker 3: they built a strong, essentially bullet proof case that does 505 00:30:37,880 --> 00:30:43,480 Speaker 3: not rely heavily on Uribe, who's a former insurance broker 506 00:30:43,560 --> 00:30:47,080 Speaker 3: from New Jersey who treated guilty to Thriving Menendez and 507 00:30:47,240 --> 00:30:51,360 Speaker 3: testified against them for several days. Prossecuers believed that they 508 00:30:51,520 --> 00:30:55,400 Speaker 3: corroborated his account at every step of the way. On 509 00:30:55,440 --> 00:30:59,080 Speaker 3: the other hand, Menendez his lawyers say that prosecutors are 510 00:30:59,160 --> 00:31:03,960 Speaker 3: quite reliant on Uribe, who is a serial liar, who 511 00:31:04,200 --> 00:31:10,200 Speaker 3: fabricated conversations to make Menendez look bad, and who can't 512 00:31:10,240 --> 00:31:13,800 Speaker 3: be trusted, and because he can't be trusted, the government's 513 00:31:13,840 --> 00:31:15,320 Speaker 3: case can't be trusted either. 514 00:31:15,960 --> 00:31:20,560 Speaker 1: There were some heavy hitters that testified against Menendez, including 515 00:31:20,600 --> 00:31:23,360 Speaker 1: the New Jersey Attorney General at the time and the 516 00:31:23,400 --> 00:31:25,320 Speaker 1: top federal prosecutor in New Jersey. 517 00:31:26,000 --> 00:31:31,000 Speaker 3: Right the former New Jersey Attorney General, Gerber Greywall, who 518 00:31:31,040 --> 00:31:34,400 Speaker 3: is now the Enforcement director at the Securities in Exchange Commission, 519 00:31:35,080 --> 00:31:38,960 Speaker 3: testified about a phone call and a meeting that he 520 00:31:39,160 --> 00:31:44,600 Speaker 3: had with Menendez in twenty nineteen that prosecutors say, you 521 00:31:44,640 --> 00:31:47,920 Speaker 3: know was part of the Bride Grey scheme. Jurors also 522 00:31:48,080 --> 00:31:51,920 Speaker 3: heard from Philip Spellinger, who's the current US Attorney in 523 00:31:52,000 --> 00:31:55,640 Speaker 3: New Jersey, which makes him the top law enforcement official 524 00:31:55,680 --> 00:31:59,000 Speaker 3: in the state. And they also heard from an undersecretary 525 00:31:59,120 --> 00:32:04,000 Speaker 3: former undersecret carry at the US Department of Agriculture about 526 00:32:04,000 --> 00:32:07,800 Speaker 3: a similar phone call that he took from Menendez in 527 00:32:07,880 --> 00:32:13,040 Speaker 3: which he said the senator asked him to drop an 528 00:32:13,080 --> 00:32:18,440 Speaker 3: effort to get Egypt, to abandon a monopoly that one 529 00:32:18,480 --> 00:32:22,760 Speaker 3: of the defendants had in Egypt, or meet in sections 530 00:32:22,840 --> 00:32:24,440 Speaker 3: under the Holal standards. 531 00:32:24,720 --> 00:32:29,840 Speaker 1: We've talked before about the physical evidence of those gold 532 00:32:29,840 --> 00:32:33,480 Speaker 1: bars and the five hundred thousand dollars in cash, How 533 00:32:33,520 --> 00:32:35,640 Speaker 1: does the defense explain. 534 00:32:35,200 --> 00:32:38,560 Speaker 3: That The defense sent a great deal of time and 535 00:32:38,680 --> 00:32:42,720 Speaker 3: inflammation trying to explain the gold bars and the cash. 536 00:32:43,400 --> 00:32:47,120 Speaker 3: On the cash, they said that the prosecutors failed to 537 00:32:47,160 --> 00:32:51,239 Speaker 3: show that there's a connection between that currency that was 538 00:32:51,280 --> 00:32:54,560 Speaker 3: found in the Menendez house in Englewood Cliffs, New Jersey 539 00:32:54,680 --> 00:32:58,360 Speaker 3: by the FBI, and any actions that he took as 540 00:32:58,400 --> 00:33:02,320 Speaker 3: a senator. They also say that Menendez had a long 541 00:33:02,560 --> 00:33:07,320 Speaker 3: standing habit inskilled in him by his Cuban refugee family, 542 00:33:08,000 --> 00:33:13,320 Speaker 3: of taking out cash regularly from his bank account and 543 00:33:13,480 --> 00:33:17,680 Speaker 3: essentially affording it, and that's how they can explain away 544 00:33:18,000 --> 00:33:20,920 Speaker 3: a great deal of the cash. They also say that 545 00:33:20,960 --> 00:33:25,520 Speaker 3: the gold bars were given to Nadine, his wife, without 546 00:33:25,600 --> 00:33:28,560 Speaker 3: his knowledge, and that he had nothing to do with 547 00:33:28,640 --> 00:33:33,120 Speaker 3: the gold bars, so they have a number of explanations. 548 00:33:33,160 --> 00:33:37,520 Speaker 3: They also acknowledge that this is a difficult part of 549 00:33:37,560 --> 00:33:40,320 Speaker 3: the case for the defense. They say that it is 550 00:33:40,400 --> 00:33:43,200 Speaker 3: really the heart of the government's case and that if 551 00:33:43,320 --> 00:33:47,880 Speaker 3: jurors will be patient and listen to their explanation, that 552 00:33:47,960 --> 00:33:50,600 Speaker 3: the prosecution case just falls apart. 553 00:33:51,160 --> 00:33:54,400 Speaker 1: David, I mean, is their main defense saying that the 554 00:33:54,440 --> 00:33:58,560 Speaker 1: prosecution has improven things beyond a reasonable doubt or do 555 00:33:58,640 --> 00:34:00,880 Speaker 1: they have an affirmative defense? 556 00:34:01,400 --> 00:34:04,560 Speaker 3: They say there's an absence of evidence that they have 557 00:34:04,720 --> 00:34:08,120 Speaker 3: not proven the case beyond a reasonable doubt. They also 558 00:34:08,280 --> 00:34:13,680 Speaker 3: say prosecutors failed to show that Menendez either promised to 559 00:34:13,719 --> 00:34:18,320 Speaker 3: take official action or actually took official action. And you know, 560 00:34:18,440 --> 00:34:21,840 Speaker 3: they've attacked the way that the prosecutors put the case 561 00:34:21,960 --> 00:34:27,040 Speaker 3: together using these massive summary charts, the texts and emails 562 00:34:27,080 --> 00:34:31,239 Speaker 3: and phone calls and meetings, saying that they're asking the 563 00:34:31,320 --> 00:34:35,680 Speaker 3: jury to go too far to draw negative inferences without 564 00:34:35,719 --> 00:34:38,920 Speaker 3: having direct proof of any wrongdoings. 565 00:34:39,719 --> 00:34:44,200 Speaker 1: So Menendez's wife is being tried separately, which is like 566 00:34:44,239 --> 00:34:46,720 Speaker 1: a gift to Menandez in the case because it allows 567 00:34:46,800 --> 00:34:49,800 Speaker 1: him to point at someone who's not in the courtroom 568 00:34:49,840 --> 00:34:53,560 Speaker 1: as a possible culprit. Where does the wife fit in 569 00:34:53,560 --> 00:34:54,520 Speaker 1: in the defense view? 570 00:34:54,840 --> 00:34:58,239 Speaker 3: Maybe Menendez is not at the trial because she has 571 00:34:58,360 --> 00:35:02,640 Speaker 3: breast cancer and is getting treatment for that. The prosecutors 572 00:35:02,680 --> 00:35:08,799 Speaker 3: see her as a critical go between who facilitated conversations 573 00:35:08,800 --> 00:35:14,600 Speaker 3: and bribes between Bob Menendez and the businessman who bribed him. 574 00:35:14,880 --> 00:35:20,080 Speaker 3: The defense have used her as a fall person to 575 00:35:20,239 --> 00:35:25,840 Speaker 3: blame for many of the actions that prosecutors say were criminal, 576 00:35:26,320 --> 00:35:32,200 Speaker 3: and they essentially say that Nadine held critical information from 577 00:35:32,400 --> 00:35:37,000 Speaker 3: Bob about the poor state of her finances and the 578 00:35:37,000 --> 00:35:39,719 Speaker 3: gifts that she received from those businessmen. 579 00:35:40,360 --> 00:35:43,040 Speaker 1: I thought it was interesting. At one point he summoned 580 00:35:43,040 --> 00:35:46,799 Speaker 1: her with a bell, and the prosecution used that to 581 00:35:46,880 --> 00:35:49,359 Speaker 1: show that he was the one in charge. Tell us 582 00:35:49,360 --> 00:35:50,840 Speaker 1: about that bell ringing. 583 00:35:52,239 --> 00:35:52,439 Speaker 2: Right. 584 00:35:53,000 --> 00:35:56,479 Speaker 3: There was a critical meeting on the patio at ten 585 00:35:56,560 --> 00:36:02,680 Speaker 3: pm on September evening behind the house of the Menendez 586 00:36:02,800 --> 00:36:07,960 Speaker 3: is where the businessman who pleated guilty, Jose Uribe, met 587 00:36:07,960 --> 00:36:13,319 Speaker 3: with Menendez, and prosecutors say and Uriba testify that he 588 00:36:13,360 --> 00:36:18,520 Speaker 3: gave critical details to Menendez about what he should say 589 00:36:18,600 --> 00:36:21,040 Speaker 3: to the new Jersey Attorney General at the time of 590 00:36:21,520 --> 00:36:24,920 Speaker 3: gray Wall. The two men were sitting on the patio 591 00:36:25,040 --> 00:36:28,720 Speaker 3: for an hour, according to the testimony, drinking Grand Marnier, 592 00:36:29,480 --> 00:36:35,160 Speaker 3: smoking cigars, and Menendez needed to write down some information 593 00:36:36,080 --> 00:36:39,880 Speaker 3: and this was a colorful part of the trial. According 594 00:36:39,880 --> 00:36:43,560 Speaker 3: to Eurebe, Menendez picked up a bell and rang it 595 00:36:43,680 --> 00:36:46,680 Speaker 3: to summon his wife, who came out with a piece 596 00:36:46,680 --> 00:36:47,879 Speaker 3: of paper, and. 597 00:36:47,800 --> 00:36:50,719 Speaker 1: The prosecution said the bell showed that he was the 598 00:36:50,800 --> 00:36:53,840 Speaker 1: person in charge, not a puppet having his strings pulled 599 00:36:53,840 --> 00:36:56,680 Speaker 1: by someone else. You know, we had talked before about 600 00:36:56,719 --> 00:36:59,920 Speaker 1: whether Menendez would testify or not, and I thought he 601 00:37:00,320 --> 00:37:03,240 Speaker 1: to try to counter some of the evidence and perhaps 602 00:37:03,320 --> 00:37:06,640 Speaker 1: went over a juror or two get a hung jury. 603 00:37:06,640 --> 00:37:10,000 Speaker 1: Did the defense mention at all why he didn't testify it? 604 00:37:10,239 --> 00:37:14,960 Speaker 3: Menenda said outside the courthouse after he announced he was 605 00:37:14,960 --> 00:37:19,360 Speaker 3: in testifying that he felt that the prosecutors had not 606 00:37:19,600 --> 00:37:22,920 Speaker 3: proved their case, so he was essentially saying there was 607 00:37:22,960 --> 00:37:28,239 Speaker 3: no need for his testimony because they failed to prove 608 00:37:28,360 --> 00:37:31,680 Speaker 3: the unreasonable doubt that he engaged in all this criminal conduct. 609 00:37:32,360 --> 00:37:37,200 Speaker 1: He's accused of bribery, extortion, fraud, conspiracy, obstruction of justice, 610 00:37:37,239 --> 00:37:40,040 Speaker 1: and acting as a foreign agent of Egypt. If he 611 00:37:40,360 --> 00:37:43,480 Speaker 1: falls on one, will he fall on all of them? 612 00:37:43,600 --> 00:37:46,880 Speaker 1: Or are their unique circumstances for some of those charges. 613 00:37:47,800 --> 00:37:51,279 Speaker 3: I think what is going to make this case difficult 614 00:37:51,520 --> 00:37:54,400 Speaker 3: for the jury to judge is there are a number 615 00:37:54,520 --> 00:37:59,880 Speaker 3: of separate plots alleged by the government. There's overlapping evidence 616 00:38:00,080 --> 00:38:04,600 Speaker 3: and intersecting points and players. But this is going to 617 00:38:04,600 --> 00:38:08,080 Speaker 3: be a difficult job for the jury to weigh all 618 00:38:08,200 --> 00:38:12,319 Speaker 3: these different criminal charges against three defendants. I think it's 619 00:38:12,320 --> 00:38:14,280 Speaker 3: going to take them a while to reach a verdict. 620 00:38:14,640 --> 00:38:16,560 Speaker 1: There's also thirteen hundred. 621 00:38:16,280 --> 00:38:20,360 Speaker 3: Exhibits, at least thirteen hundred. There's a lot of evidence 622 00:38:20,480 --> 00:38:24,600 Speaker 3: to go through. The prosecutors took nearly six hours in 623 00:38:24,680 --> 00:38:30,120 Speaker 3: their initial closing argument. Menendez's lawyer took at least five hours. 624 00:38:30,640 --> 00:38:33,839 Speaker 3: There's a couple more closing arguments than the prosecutors get 625 00:38:33,880 --> 00:38:38,040 Speaker 3: a rebuttal case again, and then there's a fairly complex 626 00:38:38,600 --> 00:38:41,480 Speaker 3: set of legal instructions that the judge has to give 627 00:38:41,560 --> 00:38:43,880 Speaker 3: to the jury. Now this is a jury that was 628 00:38:43,960 --> 00:38:47,399 Speaker 3: told that the case would last six weeks, and now 629 00:38:47,440 --> 00:38:50,520 Speaker 3: we're almost into our ninth week of the trial. 630 00:38:51,120 --> 00:38:53,800 Speaker 1: Well, I know you will be there until the bitter end. David, 631 00:38:53,840 --> 00:38:58,880 Speaker 1: thanks so much. That's Bloomberg Legal reporter David Voriacis. In 632 00:38:58,920 --> 00:39:03,240 Speaker 1: other legal news today, Arcago's Capital Management founder Bill Huang 633 00:39:03,440 --> 00:39:07,080 Speaker 1: was found guilty of criminal charges stemming from his firm's 634 00:39:07,160 --> 00:39:11,040 Speaker 1: twenty twenty one collapse. Concluding a two month trial that 635 00:39:11,280 --> 00:39:15,239 Speaker 1: captivated Wall Street, the jury delivered verdicts against Wang and 636 00:39:15,320 --> 00:39:20,520 Speaker 1: his co defendant, former Archagos CFO Patrick Halligan. Both men 637 00:39:20,560 --> 00:39:24,640 Speaker 1: were convicted of defrauding Arcago's counterparties like Credit Suisse and 638 00:39:24,800 --> 00:39:28,600 Speaker 1: UBS by lying to them about the firm's trading activity 639 00:39:28,840 --> 00:39:31,920 Speaker 1: and the level of risk in its portfolio. Wang was 640 00:39:31,960 --> 00:39:38,080 Speaker 1: separately found guilty of manipulating several stocks, including the former ViacomCBS, 641 00:39:38,400 --> 00:39:41,960 Speaker 1: though he was acquitted with regard to one stock. Both 642 00:39:42,040 --> 00:39:47,200 Speaker 1: men were also convicted of participating in racketeering conspiracy. Each 643 00:39:47,280 --> 00:39:51,400 Speaker 1: count theoretically carries a maximum sentence of twenty years in prison. 644 00:39:51,800 --> 00:39:55,400 Speaker 1: The judge set in October twenty eighth sentencing for both men, 645 00:39:55,920 --> 00:39:58,239 Speaker 1: and that's it for this edition of The Bloomberg Law Show. 646 00:39:58,600 --> 00:40:00,920 Speaker 1: Remember you can always get the latest legal news on 647 00:40:01,000 --> 00:40:05,279 Speaker 1: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, 648 00:40:05,480 --> 00:40:10,520 Speaker 1: and at www dot Bloomberg dot com, slash podcast Slash Law, 649 00:40:10,920 --> 00:40:13,480 Speaker 1: And remember to tune into The Bloomberg Law Show every 650 00:40:13,520 --> 00:40:17,440 Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso 651 00:40:17,560 --> 00:40:19,200 Speaker 1: and you're listening to Bloomberg