Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: It was another transformational term at the Supreme Court, where
Speaker 1: the Republican appointed supermajority left no doubt that its conservative
Speaker 1: revolution is pushing ahead to attain its goals without much
Speaker 1: regard for precedent. The Conservatives slashed the power of regulators,
Speaker 1: rule that Donald Trump is absolutely immune from criminal prosecution
Speaker 1: for official presidential acts, made it harder to challenge voting
Speaker 1: maps as racially gerrymandered, and found that homeless people sleeping
Speaker 1: on the streets can be jailed. In those decisions, as
Speaker 1: well as seven others. The Court was divided down ideological
Speaker 1: lines six to three, with the liberal justices in the minority.
Speaker 1: Joining me is Anthony Michael Christ, a professor at the
Speaker 1: Georgia State University College of Law. People are bemoaning how
Speaker 1: the Supreme Court had has become so political, But you
Speaker 1: write that the Supreme Court always has been political and
Speaker 1: that the Court has never been an apolitical arbiter of
Speaker 1: the constitution. Tell us why so?
Speaker 2: You know, the Supreme Court has two important features in
Speaker 2: terms of how justice think. I think the first one
Speaker 2: is that you know they're members of society, and so
Speaker 2: you know, society has kind of dominant main streame views
Speaker 2: and those that are very much on the outside, and justices,
Speaker 2: much like your average citizen, is going to internalize those views,
Speaker 2: internalize those changing dynamics in society and current events and
Speaker 2: all the like, and their jurisprudence is going to sometimes
Speaker 2: be affected by that. But then the other thing that's
Speaker 2: even more important in terms of the Supreme Court's jurisprudential
Speaker 2: outcomes is the fact that it is the byproduct of
Speaker 2: big political coalition that elected presidents and that elect majorities
Speaker 2: in the Senate. That then creates this dynamic where you
Speaker 2: get a president who appoints justice the Supreme Court who
Speaker 2: also reflects their ideological commitments. And so generally speaking, because
Speaker 2: of these two different features of how justices get picked
Speaker 2: and how they just operate as regular members of society, right,
Speaker 2: they're not for medically sealed off from the rest of us.
Speaker 2: You know, the courts tend to reflect majoritarian views. Certainly,
Speaker 2: I think there's a case to be made that this court,
Speaker 2: the Roberts Court, and as the Roberts Court is currently constituted.
Speaker 2: A lot of people may say this, well, outside of
Speaker 2: the kind of mainstream views of the average American today,
Speaker 2: And I think there was an argument made for that,
Speaker 2: for sure. But generally speaking, the Supreme Court just contrary
Speaker 2: to what most of us have been taught in law
Speaker 2: school and in college for years and years and years,
Speaker 2: it's not a counter majoritory and institution. It has typically
Speaker 2: reflected the majority view on major questions of law and politics.
Speaker 1: Do you think that this is becoming more pronounced because
Speaker 1: the Court has moved so fast to overrule precedent and
Speaker 1: to change the law.
Speaker 2: Yeah, So I think maybe a good app comparison maybe
Speaker 2: the Warren Court from the nineteen fifties and nineteen sixties
Speaker 2: and the current Robbers Court as it existed we'll say
Speaker 2: since the Trump administration, so around twenty sixteen, and certainly
Speaker 2: there's similar dynamics in that both courts overturned a lot
Speaker 2: of precedent. People generally don't see the Warren Court as
Speaker 2: being at a step with the average Americans view during
Speaker 2: that period because the New Deal coalition was dominant and
Speaker 2: they won outright majorities both in Congress and substantial majorities
Speaker 2: time and again in terms of sending a president to
Speaker 2: the White app and even Republicans who were more conservative
Speaker 2: than the average Democrat at the time tends to be
Speaker 2: more liberal, and so the views of the average politicians
Speaker 2: who was electable in that time period was very much
Speaker 2: in sync with the appsview of the typical Supreme Court
Speaker 2: justice at the time. Why I think people seem more
Speaker 2: skeptical of this court is because unlike the War in Court,
Speaker 2: for example, you know, Donald Trump when he was first elected,
Speaker 2: never cured a popular vote majority, and I think, you know,
Speaker 2: in terms of public opinion pulling really never cracked a
Speaker 2: majority of Americans supporting his presidency. And at the same time,
Speaker 2: there was a dynamic that occurred in the Senate where
Speaker 2: Donald Trump's Supreme Court nominees, unlike every nominee in the
Speaker 2: years past, was unable to secure a majority of Senators
Speaker 2: to confirm the nomination that he put forward for the
Speaker 2: Supreme Court, who also represented a majority of Americans, because
Speaker 2: the Senate has become so malaportioned based on population. And
Speaker 2: so I think part of the anxiety that you see,
Speaker 2: particularly from the center, center, left and left of the
Speaker 2: political spectrum here in the United States, that is a
Speaker 2: byproduct of the feeling that the Supreme Court is representing
Speaker 2: minoritarian on minoritarian on minoritarian interests and not in step
Speaker 2: with kind of the general flow and trajectory of the
Speaker 2: American body politics, as was the case perhaps in the
Speaker 2: nineteen fifties and nineteen sixties. So there are similarities in
Speaker 2: terms of the court reflecting winning coalitions to a certain extent,
Speaker 2: both between the Warren Court and the Roberts Court. But
Speaker 2: I think there are also very significant qualitated differences in
Speaker 2: terms of where we are in the kind of a
Speaker 2: longer term trajectory in American politics.
Speaker 1: So let's talk about some of the cases. One of
Speaker 1: the cases where it seemed to me that politics was
Speaker 1: blatantly at play was the Idaho abortion case. There were
Speaker 1: enough justices to place a stay on the district court
Speaker 1: order so that Idaho could enforce its ban before the decision,
Speaker 1: but then some of them must have had a change
Speaker 1: of heart backed off, and in the dissent, Justice Alito
Speaker 1: seemed to question why, and is the obvious answer the
Speaker 1: upcoming alone.
Speaker 2: I think the answer is it was absolutely the election,
Speaker 2: and it was a feeling by a number of justices
Speaker 2: on the Court that coming down with a ruling that
Speaker 2: restricted abortion access further would be electorally damaging to conservatives
Speaker 2: and Republicans across the country in a very important election cycle.
Speaker 2: And I think one of the key dynamics here that
Speaker 2: it's important to note is that this was of course
Speaker 2: a dig right, so it was dismissed and providently granted,
Speaker 2: which basically means that at least one of the members
Speaker 2: who voted to hear the case in the first place
Speaker 2: so voted to hear, sir, decided that no, they had
Speaker 2: coal feet and they just didn't want to touch this,
Speaker 2: And that to me suggests, you know, it was probably
Speaker 2: not one of the liberals right who would get cold feet,
Speaker 2: because they would not vote for curt unless they thought
Speaker 2: they would certainly win, which with this court being as
Speaker 2: conservative as it is, an anti abortion as it is,
Speaker 2: you know, that wouldn't be a really safe bet. So
Speaker 2: it's very like, if not absolutely certainty, that either Justice Barrett,
Speaker 2: Chief Justice Roberts, or Justice Kavanaugh or in that group
Speaker 2: who initially decided to hear this case and realize that
Speaker 2: it was going to go in a way they didn't
Speaker 2: particularly like, likely for political reasons, and they backed off.
Speaker 2: And so I think the core disposition here at least
Speaker 2: among the three more I would say more moderate conservatives.
Speaker 2: I wouldn't call them moderates, but they're certainly less conservative
Speaker 2: than say Justice Alito or Justice Thomas. But those three Kavanaugh, Roberts, Barrett,
Speaker 2: I think hope that either they could pump this off
Speaker 2: for another time and decide against the federal government during
Speaker 2: a year that is not an election year, or they
Speaker 2: could just sit back and hope Donald Trump wins the
Speaker 2: presidency in November, wait for the Trump administration to reverse
Speaker 2: course on this policy that bid an administration promulgated, and
Speaker 2: then they won't have to touch it at all. So
Speaker 2: this was really politics all the way down.
Speaker 1: Now, the Eighth Amendment, we don't talk about it all
Speaker 1: that much in the news, and the ban on cruel
Speaker 1: and unusual punishment. The Supreme Court seems to often ignore
Speaker 1: its protections and a lot of times the case is
Speaker 1: involve criminal laws. But this term there was a case
Speaker 1: involving homelessness. Tell us about that and what the court
Speaker 1: did there.
Speaker 2: So, in a case called City of Grant's Past, the
Speaker 2: Supreme Court said that it does not violate the Eighth
Speaker 2: Amendments ban on Cruel and Unusual punishment to essentially criminalize
Speaker 2: people from camping in public spaces. And the hard part
Speaker 2: here is that, you know, there's a couple of dynamics
Speaker 2: that really make this situation agonizing, I think for people
Speaker 2: who particularly are concerned about unhoused persons. And how you know,
Speaker 2: we treat homelessness in the United States, which is, you know,
Speaker 2: a lot of cities create policies and adopt public policies
Speaker 2: that are not particularly friendly to affordable housing or density
Speaker 2: which can make housing more available and cheaper and whatnot,
Speaker 2: which could help ease some of these pressures. And you know,
Speaker 2: cities also seem to be really resistant in many respects
Speaker 2: to provide adequate services. And so you know, cities make
Speaker 2: these deliberate policies which make it harder for people to
Speaker 2: secure housing or to seek temporary shelter. But then at
Speaker 2: the same time, say you can't just sleep outside, you
Speaker 2: can't put up a tent, or we're going to basically
Speaker 2: criminalize your essential existence as an unhoused person. And so
Speaker 2: in this respect, the policy choices of cities is really
Speaker 2: a way to kind of crown people and push them
Speaker 2: out of their jurisdiction and say you're someone else's problem now,
Speaker 2: and that puts people in a really tough bind and
Speaker 2: it's really hard to get out, and so you know,
Speaker 2: the majority basically said, well, you know, this is not
Speaker 2: a problem, like you essentially have choices here as a person,
Speaker 2: and that's that there's no constitutional refuge or shield here
Speaker 2: under the Eighth Amendment. Whereas I think that the centers
Speaker 2: understood the bind that people face in these very tough situations.
Speaker 2: I think what's telling in some respects, at least for
Speaker 2: me as a scholar of political history and particularly somebody
Speaker 2: who is focused on reconstruction. You know, so much of
Speaker 2: this court is hell bent on originalist principles. And it's
Speaker 2: kind of ironic because, you know, if you look back
Speaker 2: to the eighteen sixties when zoadical Republicans were running the
Speaker 2: show and reconstruction was on their mind, and the Fourteenth
Speaker 2: Amendment came into play, as did the forerunner to the
Speaker 2: Fourteenth Amendment, the Civil Rights Act of eighteen sixty six.
Speaker 2: These lost many respects for us to push back on
Speaker 2: seven states which use vacancy walls, which were very similar
Speaker 2: right to what is that play here in the City
Speaker 2: of Grant Pass case, and basically track people either you know,
Speaker 2: working on certain plantations or working in certain conditions kind
Speaker 2: of fleeing the jurisdiction. And the huge part one of
Speaker 2: the pushback against that was that people should have freedom
Speaker 2: of movement. And you know, there were certainly people who
Speaker 2: also thought that there was a requirement and an obligation
Speaker 2: on government to provide some kind of basic social safety net.
Speaker 2: And this is a particularly important point that reconstruction legislators
Speaker 2: in South Carolina made in the late eighteen sixties and
Speaker 2: or only eighteen seventies. But there's no originalism here, right,
Speaker 2: There's kind of no originalism for folks who are poor.
Speaker 2: And I think that's really kind of telling in some
Speaker 2: respects about what this court is doing. It's not some
Speaker 2: kind of neutral jurisprudential decision making. They make decisions on
Speaker 2: an ad hoc basis, implementing whatever kind of constitutional tools
Speaker 2: of interpretation they want as they see fit. There's really
Speaker 2: no rhyme or reason to it other than they see
Speaker 2: an issue and they craft a rule based on what
Speaker 2: they viscerally and politically feel is the right outcome.
Speaker 1: Coming up next on the Bloomberg Lawn Show, what happened
Speaker 1: to the Chief Justice being an institutionalist who believed in
Speaker 1: judges only calling balls and strikes. I'm June Grosso and
Speaker 1: you're listening to Bloomberg. The Supreme Court's fractured decision in
Speaker 1: an important gun rights case. This term shows the justices
Speaker 1: can't quite agree on how to use history and tradition
Speaker 1: to analyze the constitutionality of firearm restrictions. The eight to
Speaker 1: one ruling in the Rahemi case, which upheld a federal
Speaker 1: law that bans people's subject to domestic violence restraining orders
Speaker 1: from possessing a gun, elicited separate writings from seven of
Speaker 1: the nine justices. Concurrences on both sides of the ideological
Speaker 1: line show there's a rigorous debate going on over the
Speaker 1: legal theory of originalism, which the Court's conservative majority has embraced.
Speaker 1: I've been talking to Anthony Michael Christ, a professor at
Speaker 1: the Georgia State University College of Law. Do you think,
Speaker 1: not only in this case, but in other cases, it's
Speaker 1: sort of exposed the problems with originalism and riffs among
Speaker 1: the conservatives about originalism especially. I think it showed in
Speaker 1: the Raheemi case. I think, where you know, what is it?
Speaker 1: Everyone has a different you know, not everyone, but there
Speaker 1: are so many different opinions what is originalism?
Speaker 2: I think the Rahemi case is really telling in some respects.
Speaker 2: It's ironic to me that Justice Tummas, who wrote the
Speaker 2: decision a couple of years ago in Bruin which was
Speaker 2: this right revolutionary Second Amendment case, basically was a loan
Speaker 2: to center in Rahimi and said, well, you don't really
Speaker 2: understand what I wrote. And so you know that that
Speaker 2: kind of undercuts the whole point of originalism, right when
Speaker 2: you have the author of an opinion that received majority
Speaker 2: vote by members of the United States Supreme Court saying
Speaker 2: to other people in the Supreme Court you don't understand
Speaker 2: just a couple of years later what I actually meant
Speaker 2: kind of ironically undercuts originalism and its alleged integrity as
Speaker 2: a tool of interpretation. But I think the other thing
Speaker 2: is that it has shown some crack in that people
Speaker 2: have understood that originalism has applied in a very strict
Speaker 2: and narrow sense, had unworkable and untenable outcome. And I think, frankly,
Speaker 2: the fact that the justices all raandly rejected this idea
Speaker 2: that the Second Amendment should somehow protect domestic abusers and
Speaker 2: allow them to have weapons. You know, most people in
Speaker 2: the United States, I think, would say they agree that
Speaker 2: that should not be the case. But if you applied
Speaker 2: just to Thomas's tests that he articulated a couple of
Speaker 2: years ago in a truly faithful way, the outcome would
Speaker 2: have been different. And so I think the Rashini case
Speaker 2: in some respects illustrates how there's this kind of roving
Speaker 2: attempt by a number of the members of the Court
Speaker 2: to apply originalism where it works for them, and to
Speaker 2: kind of push back a bit where it doesn't. And that, again,
Speaker 2: I think truly is astonishing for a group of people
Speaker 2: who suggest that originalism is the one, only and true
Speaker 2: way to interpret the Constitution.
Speaker 1: And you point out that there were cases where the
Speaker 1: Court sort of applied lenient statutory interpretations to benefit, for example,
Speaker 1: the January sixth defendants and white collar criminals.
Speaker 2: Yeah, so to me, one of the interesting cases that
Speaker 2: the Supreme Court decided was a case dealing with January
Speaker 2: sixth defendants called Fisher. And in Fisher, there was again
Speaker 2: it can just catch all phrase that if you apply
Speaker 2: it a very strict form of textualism that somebody like
Speaker 2: Neil Gorsuch would often propose as being his preferred way
Speaker 2: of statutory interpretation, he makes sure have come out with
Speaker 2: a different outcome that didn't favor the January sixth defendants.
Speaker 2: And so I think there are a lot of people,
Speaker 2: myself included, who may say that that decision of Fisher,
Speaker 2: as a matter of statutory interpretation, it might make sense,
Speaker 2: it might not. There might be some reasonable disagreement about
Speaker 2: what that decision should have looked like. But the decision itself,
Speaker 2: here's kind of the veil of legislative intent and legislative
Speaker 2: history in order to reach an outcome, and there are
Speaker 2: a number of justices who sign onto the opinion who
Speaker 2: generally reject that as an approach to interpreting a statute.
Speaker 2: And so I think one of the things that is
Speaker 2: something we should debate perhaps is whether or not these
Speaker 2: justices are being principled or whether they are again just
Speaker 2: kind of approaching these cases like lack a mole and
Speaker 2: hitting the kind of originalist opportunities where they come up
Speaker 2: and avoid them where that kind of approach doesn't really
Speaker 2: work for the outcomes that they truly desire. And so
Speaker 2: I think the real questions that arose out of this
Speaker 2: term cases which really is ripe for debate about whether
Speaker 2: or not the justices are being true in terms of
Speaker 2: adhering to this kind of principle or this kind of
Speaker 2: theory or kind of pool of interpretation uniformally, no matter
Speaker 2: what the out I think they're often disingenuous in that respect.
Speaker 1: So along that line, when Trump was contesting the election
Speaker 1: in twenty twenty, it seemed like the court didn't do
Speaker 1: him any favors, but this term they gave him everything
Speaker 1: he wanted. In more, you mentioned the January sixth case.
Speaker 1: There was that incredibly broad ruling on presidential immunity. They
Speaker 1: refused to allow Colorado officials to remove him from the ballot.
Speaker 1: What happened? Why did they go so far to try
Speaker 1: to insulate Trump?
Speaker 2: I think the big difference is that many people fell
Speaker 2: in twenty twenty that President Trump at the time had
Speaker 2: very weak political standing. There was a sense that there
Speaker 2: was going to be a total, perhaps landslide in favor
Speaker 2: of Joe Biden, and that of course didn't really happen.
Speaker 2: The election was much close, or I think most people anticipated,
Speaker 2: and that was both of the presidential election but also
Speaker 2: in terms of the Senate and the House of representative
Speaker 2: of results as well, but there was a sense that
Speaker 2: that was probably going to come to pass. And even
Speaker 2: when it didn't come to pass, at that point, Donald
Speaker 2: Trump had lost and so the wins in his sales
Speaker 2: were completely disflated, and so there really was no benefit
Speaker 2: to the Supreme Court to go out of their way
Speaker 2: to help Donald Trump. And if they did, that would
Speaker 2: also severely risk their own institutional capital. And that's not true. Now.
Speaker 2: Now you have a resurgent Trump. You have an income
Speaker 2: president who very well may beat Donald Trump, but who
Speaker 2: seems to be a little weaker than what most incumbents
Speaker 2: would want to be at this point in the presidential race.
Speaker 2: And they also don't want to risk the ire of
Speaker 2: Donald Trump should Donald Trump win the election in November,
Speaker 2: And so you know, that's all kind of in that mix.
Speaker 2: And then of course they're the Conservatives are looking up
Speaker 2: for their own interest I suspect, which is they would
Speaker 2: much rather have a seven to two, eight one nine
Speaker 2: zero conservative Supreme Court if they could have it, and
Speaker 2: not having a Republican win in November makes it less
Speaker 2: likely that there will be more Conservatives on the Court
Speaker 2: a few years from now than there are today. So
Speaker 2: there are a number of different issues that are at play,
Speaker 2: but I certainly think that some of the change in
Speaker 2: tone is political. And I also think though that some
Speaker 2: of the key issues, for example, the Presidential Community case,
Speaker 2: the number of members of this Court have truly believed
Speaker 2: in a doctrine that has empowered the executive. They believe
Speaker 2: in a unitary executive. They believe that the president should
Speaker 2: have the power to really wrestle control of administrative agencies
Speaker 2: and change policy as they see fit in things of
Speaker 2: that nature. And so to the extent too, that they
Speaker 2: could write an opinion that is reflective of their very
Speaker 2: long standing ideological commitments in consolidating executive power and do
Speaker 2: so in a way that could at least temporarily, if
Speaker 2: not long term, benefit Trump as perhaps the preferred presidential
Speaker 2: candidate they're going to do. So.
Speaker 1: You mentioned the administrative state basically, and the administrative state
Speaker 1: took hit after hit from the Court this term, and
Speaker 1: now with its decisions, it places power in the federal
Speaker 1: judiciary rather than in experts and agencies. So are we
Speaker 1: bound to see decisions based on the political views of
Speaker 1: federal judges more and more now that they don't have
Speaker 1: to worry about Chevron deference.
Speaker 2: I think it's possible that you could see that there
Speaker 2: is I think, to some extent, a somewhat limiting factor here,
Speaker 2: which is there will be times, perhaps where judges will
Speaker 2: be a little squeamish of wading into a particular policy
Speaker 2: and pushing back against it because they just don't have
Speaker 2: the kind of capacity in terms of technical expertise to
Speaker 2: do so. There will be other areas, I think this
Speaker 2: is particularly true in environmental policy perhaps, but there will
Speaker 2: be other areas where judges will feel a lot more
Speaker 2: comfortable stepping in and pushing back against administrative state. But
Speaker 2: when that does happen, and when judges do feel comfortable
Speaker 2: and more at ease to inquire into the rationality of
Speaker 2: a particular agency's policy, you know, certainly when you're asking
Speaker 2: something rational or you know something kind of passle sness test,
Speaker 2: you know, whatever, the test that eventually gets developed, because
Speaker 2: of course we have a rule from the local right case,
Speaker 2: but we don't really know how it's going to be
Speaker 2: fleshed out over time. I think there is a lot
Speaker 2: more room perhaps for mischief now where a judge's personal
Speaker 2: policy preferences will be easily substituted for whatever the inmistry
Speaker 2: of agency wants to do. So certainly that is a risk,
Speaker 2: but I do think that we'll have to wait and
Speaker 2: see for the next few years how this all shaked out.
Speaker 1: Over time, the Chief Justice John Roberts, he used to care,
Speaker 1: or he seemed to care, about the public's view of
Speaker 1: the Court, about the Court as an institution, claiming, you know,
Speaker 1: justices are not politicians, that they're just calling balls and strikes.
Speaker 1: What do you think happened this term that he seemed
Speaker 1: to throw away that concern.
Speaker 2: That's a good question. I think for a long time,
Speaker 2: Justice Roberts was dealing with a court that was really
Speaker 2: straddling an ideological lead avoid a bit where any case
Speaker 2: could come out five to four. Really truly, before Donald
Speaker 2: Trump took office, you know, the Supreme Court was still
Speaker 2: incredibly conservative. Even though it had a lot more ideological
Speaker 2: diversity on it, the court was certainly right of center.
Speaker 2: And you know, when Justice Kennedy left the bench a
Speaker 2: couple of years into Donald Trump's term, you know, the
Speaker 2: court went vastly right ward. But I think despite the
Speaker 2: Court's conservative dynamics before the Trump innistriction, John Roberts still
Speaker 2: had to cobble together coalitions, and I think that there
Speaker 2: was a sense that the American public was becoming increasingly liberal,
Speaker 2: especially on social issues and some of these kind of
Speaker 2: hot button issues that were very salient during the Aboma administration.
Speaker 2: I think there was a sense that he really had
Speaker 2: to keep together a coalition of five and so there
Speaker 2: might be some internal judicial politics at play there. It's
Speaker 2: really hard to say, but I think what we can
Speaker 2: for certain day is that he has seen, for whatever reason,
Speaker 2: the Court, you know, in his view, needs and can
Speaker 2: take a sharp turn. Right now, it's hard to understand exactly,
Speaker 2: I think without the perspective of more time to kind
Speaker 2: of grasp exactly what's happened there, but there is I
Speaker 2: think a noticeable shift in the Chief Justices perspective on
Speaker 2: the Court as an institution, in the institutional capital that
Speaker 2: it had. There are some risks to that. I think
Speaker 2: that opens up the Court to a lot more political
Speaker 2: tax you know, and so we'll have to see if
Speaker 2: that works out to his benefit in the longer term.
Speaker 1: So, as you point out, the conservatives have played a
Speaker 1: long game with the Supreme Court. So at this point,
Speaker 1: what is it that liberals or those in the center
Speaker 1: can do because the court is what the court is,
Speaker 1: and it's in power, and can anything be done.
Speaker 2: I think the lessons of liberals is that there needs
Speaker 2: to be a long game played in a way that
Speaker 2: is somewhat similar to what conservatives did in the late
Speaker 2: nineteen seventies and kind of hyper charge in the early
Speaker 2: nineteen eighties. Liberals don't have. I mean, there's certainly the
Speaker 2: American Constitution Society, which folks may be familiar with, which
Speaker 2: is in many respects kind of a liberal version of
Speaker 2: the Federalist Society, which many people are familiar with. But
Speaker 2: the Federal Society is a really powerful organization that began
Speaker 2: as a small conference at Yale in nineteen eighty two.
Speaker 2: A lot of work had to be put in by
Speaker 2: conservatives and libertarians into that organization to get it in
Speaker 2: a place where it's kind of at the center of power. Right.
Speaker 2: It took forty years to be at the true center
Speaker 2: of power, but it really was a very important institution
Speaker 2: in terms of developing lawyers into judges and putting people
Speaker 2: into places political power, and being a truly important center
Speaker 2: for networking and the spread of ideas that would later
Speaker 2: become by constitutional law. The liberals, I think, need to
Speaker 2: understand that that kind of organizational power, that kind of
Speaker 2: structural political force, is required in order to make the
Speaker 2: law turn left. So they're going to have to create
Speaker 2: those organizations or invest in the ones that already exist,
Speaker 2: and understand that that is a long term investment. At
Speaker 2: the same time, I think a lot of liberals have
Speaker 2: been kind of deluded for years by the war in
Speaker 2: court in particular, even that Court will save us right,
Speaker 2: that there's some kind of liberal value in the American
Speaker 2: constitutional order as embodies by the courts in the nineteen
Speaker 2: fifties and nineteen sixties, that is going to kind of
Speaker 2: live on in perpetuity. And that's just not the case.
Speaker 2: Constitutional law begins at the ballot box, and in particular,
Speaker 2: begins at the ballot box in presidential election years. And
Speaker 2: so I think for folks who look at the Court's
Speaker 2: conservatism and are kind of struck by it as being
Speaker 2: bad for the United States or reflecting values that they
Speaker 2: disagree with, then the response has to be to create
Speaker 2: organizations and the kind of structural political forces to push
Speaker 2: back against that and to invest in electoral politics. And
Speaker 2: that's really important. Courts don't operate in their kind of independent,
Speaker 2: isolated sphere. They are truly part of a broader political atmosphere.
Speaker 1: Thanks so much for being on the show and sharing
Speaker 1: your insights about this term, Professor Anthony Michael Christ of
Speaker 1: the Georgia State University College of Law. Coming up next,
Speaker 1: the corruption trial of Senator Bob Menendez is coming to
Speaker 1: a close. This is Bloomberg. In eight weeks of trial,
Speaker 1: the government has presented a sprawling case against Democratic Senator
Speaker 1: Bob Menendez, with testimony from a cooperating witness and more
Speaker 1: than a thousand pieces of evidence, including thirteen goal bars,
Speaker 1: five hundred thousand dollars in cash, and a secret FBI videotape.
Speaker 1: Federal prosecutors say Menendez put his power up for sale,
Speaker 1: pursuing bribes for years while promising to use his power
Speaker 1: to help those who paid him, in a clear pattern
Speaker 1: of corruption. The defense says prosecutors have not come close
Speaker 1: to meeting their burden of showing the gold or cash
Speaker 1: was given as a bribe. The seventy year old senator
Speaker 1: is accused of bribery, extortion, fraud, conspiracy, obstruction of justice,
Speaker 1: and acting as a foreign agent of Egypt and he
Speaker 1: faces decades in prison if convicted. Join me from the
Speaker 1: courthouse is Bloomberg Legal reporter David Voriancis, who's been covering
Speaker 1: the trial. David tell us about the prosecution's theory of
Speaker 1: the case.
Speaker 3: The prosecution theory is that Senator Robert Menendez engaged in
Speaker 3: a five year bribery scheme with his wife, who was
Speaker 3: his girlfriend for much of the period, and with two
Speaker 3: New Jersey businessmen who paid him bribes in exchange or
Speaker 3: official actions. They also say that Menendez acted as an
Speaker 3: agent of the nation of Egypt, taking several actions or
Speaker 3: promising to take several official actions that would benefit that country.
Speaker 3: They say that Menendez also obstructed justice when his lawyers
Speaker 3: tried to head off an indictment before it happened by
Speaker 3: lying to prosecutors about some of the underlying facts of
Speaker 3: the case. And they say that Menendez was quite sophisticated
Speaker 3: and cunning in the way that he acted over several years,
Speaker 3: never being too obvious or overt in his demands, but
Speaker 3: always taking money, particularly when his wife Nadine needed it.
Speaker 1: What was the strongest evidence the prosecution had against Menendez?
Speaker 2: In your view, I thought.
Speaker 3: They did an excellent job of building a circumstantial case
Speaker 3: that married the timing of various texts, emails, actions, meetings,
Speaker 3: photographs with what they say were bribes received by Menendez
Speaker 3: and official actions or the promise of official actions that
Speaker 3: he took. So they built three different long summary charts
Speaker 3: that FBI officials introduced to the jury, and that was
Speaker 3: their way of bringing in literally hundreds of texts and
Speaker 3: emails that showed over a five year period. This is
Speaker 3: what Menendez was thinking, This is what Nadine Arslanian later
Speaker 3: his wife Nadine Menendez was thinking. This is what Fred
Speaker 3: Bavies and Will Hannah, who our defendants were doing, and
Speaker 3: a whole long list of characters that are also involved
Speaker 3: in this case in some way.
Speaker 1: How much depends on the testimony of the witness who
Speaker 1: flipped Jose Rebey.
Speaker 3: It depends on who you ask. If prosecutors say that
Speaker 3: they built a strong, essentially bullet proof case that does
Speaker 3: not rely heavily on Uribe, who's a former insurance broker
Speaker 3: from New Jersey who treated guilty to Thriving Menendez and
Speaker 3: testified against them for several days. Prossecuers believed that they
Speaker 3: corroborated his account at every step of the way. On
Speaker 3: the other hand, Menendez his lawyers say that prosecutors are
Speaker 3: quite reliant on Uribe, who is a serial liar, who
Speaker 3: fabricated conversations to make Menendez look bad, and who can't
Speaker 3: be trusted, and because he can't be trusted, the government's
Speaker 3: case can't be trusted either.
Speaker 1: There were some heavy hitters that testified against Menendez, including
Speaker 1: the New Jersey Attorney General at the time and the
Speaker 1: top federal prosecutor in New Jersey.
Speaker 3: Right the former New Jersey Attorney General, Gerber Greywall, who
Speaker 3: is now the Enforcement director at the Securities in Exchange Commission,
Speaker 3: testified about a phone call and a meeting that he
Speaker 3: had with Menendez in twenty nineteen that prosecutors say, you
Speaker 3: know was part of the Bride Grey scheme. Jurors also
Speaker 3: heard from Philip Spellinger, who's the current US Attorney in
Speaker 3: New Jersey, which makes him the top law enforcement official
Speaker 3: in the state. And they also heard from an undersecretary
Speaker 3: former undersecret carry at the US Department of Agriculture about
Speaker 3: a similar phone call that he took from Menendez in
Speaker 3: which he said the senator asked him to drop an
Speaker 3: effort to get Egypt, to abandon a monopoly that one
Speaker 3: of the defendants had in Egypt, or meet in sections
Speaker 3: under the Holal standards.
Speaker 1: We've talked before about the physical evidence of those gold
Speaker 1: bars and the five hundred thousand dollars in cash, How
Speaker 1: does the defense explain.
Speaker 3: That The defense sent a great deal of time and
Speaker 3: inflammation trying to explain the gold bars and the cash.
Speaker 3: On the cash, they said that the prosecutors failed to
Speaker 3: show that there's a connection between that currency that was
Speaker 3: found in the Menendez house in Englewood Cliffs, New Jersey
Speaker 3: by the FBI, and any actions that he took as
Speaker 3: a senator. They also say that Menendez had a long
Speaker 3: standing habit inskilled in him by his Cuban refugee family,
Speaker 3: of taking out cash regularly from his bank account and
Speaker 3: essentially affording it, and that's how they can explain away
Speaker 3: a great deal of the cash. They also say that
Speaker 3: the gold bars were given to Nadine, his wife, without
Speaker 3: his knowledge, and that he had nothing to do with
Speaker 3: the gold bars, so they have a number of explanations.
Speaker 3: They also acknowledge that this is a difficult part of
Speaker 3: the case for the defense. They say that it is
Speaker 3: really the heart of the government's case and that if
Speaker 3: jurors will be patient and listen to their explanation, that
Speaker 3: the prosecution case just falls apart.
Speaker 1: David, I mean, is their main defense saying that the
Speaker 1: prosecution has improven things beyond a reasonable doubt or do
Speaker 1: they have an affirmative defense?
Speaker 3: They say there's an absence of evidence that they have
Speaker 3: not proven the case beyond a reasonable doubt. They also
Speaker 3: say prosecutors failed to show that Menendez either promised to
Speaker 3: take official action or actually took official action. And you know,
Speaker 3: they've attacked the way that the prosecutors put the case
Speaker 3: together using these massive summary charts, the texts and emails
Speaker 3: and phone calls and meetings, saying that they're asking the
Speaker 3: jury to go too far to draw negative inferences without
Speaker 3: having direct proof of any wrongdoings.
Speaker 1: So Menendez's wife is being tried separately, which is like
Speaker 1: a gift to Menandez in the case because it allows
Speaker 1: him to point at someone who's not in the courtroom
Speaker 1: as a possible culprit. Where does the wife fit in
Speaker 1: in the defense view?
Speaker 3: Maybe Menendez is not at the trial because she has
Speaker 3: breast cancer and is getting treatment for that. The prosecutors
Speaker 3: see her as a critical go between who facilitated conversations
Speaker 3: and bribes between Bob Menendez and the businessman who bribed him.
Speaker 3: The defense have used her as a fall person to
Speaker 3: blame for many of the actions that prosecutors say were criminal,
Speaker 3: and they essentially say that Nadine held critical information from
Speaker 3: Bob about the poor state of her finances and the
Speaker 3: gifts that she received from those businessmen.
Speaker 1: I thought it was interesting. At one point he summoned
Speaker 1: her with a bell, and the prosecution used that to
Speaker 1: show that he was the one in charge. Tell us
Speaker 1: about that bell ringing.
Speaker 2: Right.
Speaker 3: There was a critical meeting on the patio at ten
Speaker 3: pm on September evening behind the house of the Menendez
Speaker 3: is where the businessman who pleated guilty, Jose Uribe, met
Speaker 3: with Menendez, and prosecutors say and Uriba testify that he
Speaker 3: gave critical details to Menendez about what he should say
Speaker 3: to the new Jersey Attorney General at the time of
Speaker 3: gray Wall. The two men were sitting on the patio
Speaker 3: for an hour, according to the testimony, drinking Grand Marnier,
Speaker 3: smoking cigars, and Menendez needed to write down some information
Speaker 3: and this was a colorful part of the trial. According
Speaker 3: to Eurebe, Menendez picked up a bell and rang it
Speaker 3: to summon his wife, who came out with a piece
Speaker 3: of paper, and.
Speaker 1: The prosecution said the bell showed that he was the
Speaker 1: person in charge, not a puppet having his strings pulled
Speaker 1: by someone else. You know, we had talked before about
Speaker 1: whether Menendez would testify or not, and I thought he
Speaker 1: to try to counter some of the evidence and perhaps
Speaker 1: went over a juror or two get a hung jury.
Speaker 1: Did the defense mention at all why he didn't testify it?
Speaker 3: Menenda said outside the courthouse after he announced he was
Speaker 3: in testifying that he felt that the prosecutors had not
Speaker 3: proved their case, so he was essentially saying there was
Speaker 3: no need for his testimony because they failed to prove
Speaker 3: the unreasonable doubt that he engaged in all this criminal conduct.
Speaker 1: He's accused of bribery, extortion, fraud, conspiracy, obstruction of justice,
Speaker 1: and acting as a foreign agent of Egypt. If he
Speaker 1: falls on one, will he fall on all of them?
Speaker 1: Or are their unique circumstances for some of those charges.
Speaker 3: I think what is going to make this case difficult
Speaker 3: for the jury to judge is there are a number
Speaker 3: of separate plots alleged by the government. There's overlapping evidence
Speaker 3: and intersecting points and players. But this is going to
Speaker 3: be a difficult job for the jury to weigh all
Speaker 3: these different criminal charges against three defendants. I think it's
Speaker 3: going to take them a while to reach a verdict.
Speaker 1: There's also thirteen hundred.
Speaker 3: Exhibits, at least thirteen hundred. There's a lot of evidence
Speaker 3: to go through. The prosecutors took nearly six hours in
Speaker 3: their initial closing argument. Menendez's lawyer took at least five hours.
Speaker 3: There's a couple more closing arguments than the prosecutors get
Speaker 3: a rebuttal case again, and then there's a fairly complex
Speaker 3: set of legal instructions that the judge has to give
Speaker 3: to the jury. Now this is a jury that was
Speaker 3: told that the case would last six weeks, and now
Speaker 3: we're almost into our ninth week of the trial.
Speaker 1: Well, I know you will be there until the bitter end. David,
Speaker 1: thanks so much. That's Bloomberg Legal reporter David Voriacis. In
Speaker 1: other legal news today, Arcago's Capital Management founder Bill Huang
Speaker 1: was found guilty of criminal charges stemming from his firm's
Speaker 1: twenty twenty one collapse. Concluding a two month trial that
Speaker 1: captivated Wall Street, the jury delivered verdicts against Wang and
Speaker 1: his co defendant, former Archagos CFO Patrick Halligan. Both men
Speaker 1: were convicted of defrauding Arcago's counterparties like Credit Suisse and
Speaker 1: UBS by lying to them about the firm's trading activity
Speaker 1: and the level of risk in its portfolio. Wang was
Speaker 1: separately found guilty of manipulating several stocks, including the former ViacomCBS,
Speaker 1: though he was acquitted with regard to one stock. Both
Speaker 1: men were also convicted of participating in racketeering conspiracy. Each
Speaker 1: count theoretically carries a maximum sentence of twenty years in prison.
Speaker 1: The judge set in October twenty eighth sentencing for both men,
Speaker 1: and that's it for this edition of The Bloomberg Law Show.
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