1 00:00:02,720 --> 00:00:07,440 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,600 --> 00:00:13,240 Speaker 2: In a landmark decision, the Supreme Court divided down ideological 3 00:00:13,360 --> 00:00:18,720 Speaker 2: lines upheld Tennessee's ban on gender affirming care for transgender miners, 4 00:00:19,200 --> 00:00:24,080 Speaker 2: a stunning setback to transgender rights. Chief Justice John Roberts 5 00:00:24,120 --> 00:00:28,600 Speaker 2: wrote the majority opinion for the six conservative justices, finding 6 00:00:28,640 --> 00:00:32,920 Speaker 2: that the law does not violate the Constitution's equal Protection clause, 7 00:00:33,240 --> 00:00:37,080 Speaker 2: which requires the government to treat similarly situated people the 8 00:00:37,159 --> 00:00:41,640 Speaker 2: same Roberts wrote that there are fierce scientific and policy 9 00:00:41,680 --> 00:00:45,920 Speaker 2: debates about the medical treatments, but quote, we leave questions 10 00:00:45,960 --> 00:00:50,080 Speaker 2: regarding its policy to the people, their elected representatives, and 11 00:00:50,120 --> 00:00:54,360 Speaker 2: the democratic process, Echoing what the Chief and Justice Brett 12 00:00:54,440 --> 00:00:57,200 Speaker 2: kavanaughh pointed to during the oral arguments. 13 00:00:57,800 --> 00:00:59,640 Speaker 3: You know, we might think that we're, you know, we 14 00:00:59,680 --> 00:01:02,840 Speaker 3: can do just as good a job with respect to 15 00:01:03,880 --> 00:01:09,319 Speaker 3: the evidence here as Tennessee or anybody else. But my 16 00:01:09,480 --> 00:01:13,399 Speaker 3: understanding is that the Constitution leaves that question to the 17 00:01:13,520 --> 00:01:19,040 Speaker 3: people's representatives rather than to nine people, none of whom 18 00:01:19,080 --> 00:01:20,120 Speaker 3: is a doctor. 19 00:01:20,160 --> 00:01:24,120 Speaker 4: If the Constitution doesn't take sides, if they're strong, forceful 20 00:01:24,520 --> 00:01:28,880 Speaker 4: scientific policy arguments on both sides In a situation like this, 21 00:01:30,560 --> 00:01:33,160 Speaker 4: why isn't it best to leave it to the democratic process? 22 00:01:34,000 --> 00:01:37,480 Speaker 2: Justice Sonya Soto Mayor wrote a blistering descent for the 23 00:01:37,520 --> 00:01:43,120 Speaker 2: courts three liberals, accusing the Conservatives of abandoning transgender children 24 00:01:43,200 --> 00:01:47,280 Speaker 2: and their families to political whims by retreating from meaningful 25 00:01:47,400 --> 00:01:51,600 Speaker 2: judicial review exactly where it matters most. During the oral 26 00:01:51,680 --> 00:01:55,040 Speaker 2: arguments so to, Mayor had said that the democratic process 27 00:01:55,520 --> 00:02:00,000 Speaker 2: does not protect transgender people against bad laws. 28 00:02:00,000 --> 00:02:04,040 Speaker 5: There one percent of the population or less. Very hard 29 00:02:04,080 --> 00:02:07,840 Speaker 5: to see how the democratic process is going to protect you. Well, 30 00:02:07,880 --> 00:02:11,600 Speaker 5: you are Blacks were a much larger part of the population, 31 00:02:11,760 --> 00:02:15,920 Speaker 5: and it didn't protect them. It didn't protect women for 32 00:02:16,120 --> 00:02:17,919 Speaker 5: whole centuries. 33 00:02:18,400 --> 00:02:22,720 Speaker 2: Twenty three states have bands similar to Tennessees. Joining me 34 00:02:22,800 --> 00:02:26,080 Speaker 2: is Kate Redburn, a professor at Columbia Law School whose 35 00:02:26,160 --> 00:02:30,160 Speaker 2: expertise centers on the law of gender, sexuality, and religion. 36 00:02:30,560 --> 00:02:34,760 Speaker 2: How much of a setback is this decision for transgender rights. 37 00:02:35,120 --> 00:02:39,280 Speaker 6: It's a significant setback for transgender rights, especially regarding the 38 00:02:39,320 --> 00:02:43,920 Speaker 6: availability and access to medically necessary treatments for gender dysphoria. 39 00:02:44,080 --> 00:02:48,320 Speaker 6: So the opinion refers to SB one's Tennessee law, which 40 00:02:48,560 --> 00:02:52,760 Speaker 6: essentially prohibits transgender youth from accessing gender froming care while 41 00:02:52,800 --> 00:02:55,840 Speaker 6: allowing all other youth to access the same treatments. He says, 42 00:02:55,960 --> 00:02:59,720 Speaker 6: that's not a sex classification. What it doesn't do, however, 43 00:03:00,120 --> 00:03:02,800 Speaker 6: is it doesn't hold that trans people are not a 44 00:03:02,840 --> 00:03:06,519 Speaker 6: suspect class in general. So it looks like at least 45 00:03:06,600 --> 00:03:08,920 Speaker 6: three justices were willing to go that far, and the 46 00:03:08,960 --> 00:03:12,400 Speaker 6: opinion didn't go that far. So it's very bad for 47 00:03:12,639 --> 00:03:16,240 Speaker 6: trans kids and potentially trans adults who are seeking medical care, 48 00:03:16,680 --> 00:03:21,079 Speaker 6: but it doesn't necessarily reach as far as all transiscrimination. 49 00:03:21,560 --> 00:03:25,080 Speaker 2: What was the central legal question here regarding the equal 50 00:03:25,120 --> 00:03:26,160 Speaker 2: protection clause? 51 00:03:26,520 --> 00:03:28,800 Speaker 6: So the question before the court was whether or not 52 00:03:28,840 --> 00:03:32,400 Speaker 6: this law violated equal protection, and the United States really 53 00:03:32,440 --> 00:03:35,520 Speaker 6: directed under the prior administration, really directed the court's attention 54 00:03:35,600 --> 00:03:38,400 Speaker 6: to the question of whether or not this law constituted 55 00:03:38,440 --> 00:03:41,960 Speaker 6: a sex classification. So does the law turn on sex? 56 00:03:42,080 --> 00:03:44,520 Speaker 6: And the reason for that is because when laws do 57 00:03:44,600 --> 00:03:47,200 Speaker 6: turn on sex, then the court it looks more closely 58 00:03:47,240 --> 00:03:50,280 Speaker 6: at the law. They call that heightened scrutiny for sex discrimination. 59 00:03:50,480 --> 00:03:53,520 Speaker 6: So the court I said that certain kinds of classifications, 60 00:03:53,600 --> 00:03:57,840 Speaker 6: race classifications paradigmatically more into strict scrutiny. So the Court's 61 00:03:57,840 --> 00:04:00,720 Speaker 6: going to look very hard. Sex classification the Court has 62 00:04:00,800 --> 00:04:04,840 Speaker 6: previously said sometimes are permissible, it's sometimes okay for governments 63 00:04:04,840 --> 00:04:07,400 Speaker 6: to distinguish between people on the basis of sex or 64 00:04:07,440 --> 00:04:10,400 Speaker 6: make sex classifications. But because it sounds a little bit 65 00:04:10,480 --> 00:04:13,240 Speaker 6: potentially suspicious, they're going to look more closely. And so 66 00:04:13,280 --> 00:04:15,960 Speaker 6: the question here was is it a sex classification? And 67 00:04:16,000 --> 00:04:18,239 Speaker 6: then the danger was what had happened in the Sixth 68 00:04:18,240 --> 00:04:20,760 Speaker 6: Circuit where in this case that court had said that 69 00:04:20,839 --> 00:04:23,520 Speaker 6: this law was not a sex classification and sort of 70 00:04:23,520 --> 00:04:26,640 Speaker 6: combined the analysis in a way that made people concern 71 00:04:26,800 --> 00:04:29,359 Speaker 6: that the court was going to find that even certain 72 00:04:29,440 --> 00:04:32,880 Speaker 6: kinds of sex classifications don't Warrant tightened scrutiny. So here 73 00:04:33,040 --> 00:04:36,440 Speaker 6: what happened was the Robert's majority opinion says that this 74 00:04:36,560 --> 00:04:39,520 Speaker 6: law is not a sex classification and therefore only warrant's 75 00:04:39,800 --> 00:04:40,880 Speaker 6: rational basis review. 76 00:04:41,200 --> 00:04:45,440 Speaker 2: Chief Justice Roberts, in his majority opinions talked about the 77 00:04:45,480 --> 00:04:49,960 Speaker 2: fierce scientific and policy debates about the safety, efficacy, and 78 00:04:50,000 --> 00:04:53,800 Speaker 2: propriety of medical treatments in an evolving field. Quote, we 79 00:04:53,880 --> 00:04:57,240 Speaker 2: leave questions regarding its policy to the people. They're elected 80 00:04:57,279 --> 00:05:02,080 Speaker 2: representatives and the democratic process. Is that just the court 81 00:05:02,160 --> 00:05:05,920 Speaker 2: looking for an out, I mean, they do make policy decisions. 82 00:05:06,440 --> 00:05:09,320 Speaker 6: Yeah, So it sounds not dissimilar to what the Court 83 00:05:09,400 --> 00:05:12,839 Speaker 6: said about Dobbs when it overturned roversus Wade, which was 84 00:05:13,040 --> 00:05:16,680 Speaker 6: under the guise of changing doctrine, and that case quite significantly, 85 00:05:16,960 --> 00:05:20,799 Speaker 6: it described itself as kicking the question back to the states. 86 00:05:20,880 --> 00:05:24,800 Speaker 6: What is suspicious about that language in this context is 87 00:05:24,839 --> 00:05:28,040 Speaker 6: that the heightened scrutiny is actually designed to make it 88 00:05:28,080 --> 00:05:30,520 Speaker 6: possible for course to spend some time really looking at 89 00:05:30,560 --> 00:05:33,800 Speaker 6: the justifications that the governments are using for regulating and 90 00:05:33,839 --> 00:05:36,440 Speaker 6: classifying on sex, and then it also asks whether or 91 00:05:36,440 --> 00:05:39,000 Speaker 6: not the means justify the ed. So it might be 92 00:05:39,080 --> 00:05:41,840 Speaker 6: that there's a close relationship between the purpose of the 93 00:05:41,920 --> 00:05:45,760 Speaker 6: law and its classification, but it's nevertheless not an acceptable 94 00:05:45,800 --> 00:05:47,719 Speaker 6: purpose anyway. All of that's just to say that the 95 00:05:47,800 --> 00:05:50,760 Speaker 6: existing doctrine is meant to give the court the opportunity 96 00:05:50,800 --> 00:05:53,680 Speaker 6: to really weigh evidence. And what this decision does is 97 00:05:53,720 --> 00:05:57,080 Speaker 6: it seems to open up the possibility of authorizing governments 98 00:05:57,120 --> 00:06:00,960 Speaker 6: to regulate around medical procedures that touch on sex without 99 00:06:01,000 --> 00:06:04,120 Speaker 6: courts even looking to weigh the evidence. So it might 100 00:06:04,160 --> 00:06:06,320 Speaker 6: be the case that the Court could have applied heightened 101 00:06:06,320 --> 00:06:10,040 Speaker 6: scrutiny and still found that this particular law had, on 102 00:06:10,120 --> 00:06:13,800 Speaker 6: its view of sufficient evidentiary support, you know, in light 103 00:06:13,839 --> 00:06:17,640 Speaker 6: of the purported medical controversy, But it might not have, 104 00:06:17,720 --> 00:06:21,120 Speaker 6: and it really denied itself and potentially future courts from 105 00:06:21,279 --> 00:06:22,240 Speaker 6: even looking into that. 106 00:06:23,160 --> 00:06:27,000 Speaker 2: Justice Sonia Sotomayo wrote a blistering dissent, and she read 107 00:06:27,040 --> 00:06:29,719 Speaker 2: a summary of it from the bench, which the justices 108 00:06:29,800 --> 00:06:33,080 Speaker 2: sometimes do when they feel strongly about a descent. Then 109 00:06:33,200 --> 00:06:37,120 Speaker 2: she ended with in sadness I dissent, she talked about 110 00:06:37,200 --> 00:06:42,719 Speaker 2: the majority abandoning transgender children and their families to political whims. 111 00:06:43,200 --> 00:06:45,200 Speaker 6: I think that, you know, her sadness stems from the 112 00:06:45,200 --> 00:06:49,200 Speaker 6: fact that this is going to force potentially trans kids 113 00:06:49,240 --> 00:06:51,880 Speaker 6: and their families in half of the states where similar 114 00:06:51,920 --> 00:06:54,560 Speaker 6: laws are on the books to relocate in order to 115 00:06:54,760 --> 00:06:58,600 Speaker 6: simply live their lives. The state of the medical controversy 116 00:06:58,600 --> 00:07:01,640 Speaker 6: about these issues, and the majority of and is vastly overstated. 117 00:07:02,000 --> 00:07:03,839 Speaker 6: Much of the history that it relies on, and some 118 00:07:03,920 --> 00:07:07,120 Speaker 6: of the other concurring opinians rely on, it's just the untrue. 119 00:07:07,240 --> 00:07:09,600 Speaker 6: And so you know what I think, Justice Sodomayor was 120 00:07:09,600 --> 00:07:13,080 Speaker 6: trying to say is that the consequences for trans youth 121 00:07:13,120 --> 00:07:15,640 Speaker 6: in particular are just really, really egregious. 122 00:07:15,880 --> 00:07:20,560 Speaker 2: In her courtroom statement, she said that similar arguments were 123 00:07:20,600 --> 00:07:25,040 Speaker 2: made to defend the Virginia law that prohibited interracial marriage 124 00:07:25,080 --> 00:07:28,680 Speaker 2: that the Supreme Court struck down in nineteen sixty seven. 125 00:07:28,840 --> 00:07:31,520 Speaker 6: Yeah, so we call those equal application laws, and they 126 00:07:31,560 --> 00:07:34,680 Speaker 6: basically say that because so in Loving versus Virginia, the 127 00:07:34,840 --> 00:07:38,920 Speaker 6: argument was well for the law prohibited interracial marriage, and 128 00:07:39,040 --> 00:07:41,600 Speaker 6: the justification for it that the state gave was this 129 00:07:41,720 --> 00:07:44,320 Speaker 6: is not racial discrimination because white people are not allowed 130 00:07:44,320 --> 00:07:46,240 Speaker 6: to marry people of color and people of color are 131 00:07:46,240 --> 00:07:48,200 Speaker 6: not allowed to marry white people. In other words, everyone 132 00:07:48,280 --> 00:07:51,280 Speaker 6: is equally prohibited. But the court said no, this is 133 00:07:51,360 --> 00:07:55,000 Speaker 6: still rooted in racial stereotypes that suggest that interracial marriage 134 00:07:55,040 --> 00:07:58,880 Speaker 6: is bad, and also animus towards racial minorities and trying 135 00:07:58,920 --> 00:08:00,920 Speaker 6: to reinforce the racial hierarchy. 136 00:08:00,480 --> 00:08:01,040 Speaker 3: In the country. 137 00:08:01,080 --> 00:08:03,600 Speaker 6: So the fact that you can find in that case 138 00:08:03,640 --> 00:08:05,880 Speaker 6: white people and black people on both sides of the 139 00:08:05,920 --> 00:08:08,480 Speaker 6: line that the regulation draws does not mean that it's 140 00:08:08,520 --> 00:08:11,440 Speaker 6: not subject to heighten scrutiny. And so there's a reading 141 00:08:11,680 --> 00:08:14,160 Speaker 6: of the majority's opinion here, which that it does exactly 142 00:08:14,160 --> 00:08:16,640 Speaker 6: the same thing. That's what she's saying that just because 143 00:08:16,680 --> 00:08:19,880 Speaker 6: there are transgender miners on both sides of the line. 144 00:08:20,560 --> 00:08:23,960 Speaker 6: In other words, transgender miners, according to the Court, can 145 00:08:24,000 --> 00:08:26,280 Speaker 6: still obtain sort of treatments if they're not for the 146 00:08:26,280 --> 00:08:29,800 Speaker 6: purposes of addressing gender dysphoria. That doesn't mean that this 147 00:08:29,880 --> 00:08:33,320 Speaker 6: is not motivated by animus towards transgender people and trying 148 00:08:33,320 --> 00:08:36,760 Speaker 6: to reinforce as sex and gender hierarchy. That suggests that 149 00:08:36,840 --> 00:08:39,760 Speaker 6: there's something normatively preferable about not being transgender. 150 00:08:40,160 --> 00:08:46,080 Speaker 2: How have transgender rights in particular, How have transgender rights 151 00:08:46,120 --> 00:08:52,479 Speaker 2: in particular suffered or been affected by Donald Trump's presidency? 152 00:08:53,720 --> 00:08:57,320 Speaker 6: Basically says it's a little bit after twenty sixteen, it's 153 00:08:57,320 --> 00:09:01,600 Speaker 6: been a major priority among Republicans legislators in particular to 154 00:09:01,880 --> 00:09:04,480 Speaker 6: attack trans rights. There's a lot of reasons why that 155 00:09:04,600 --> 00:09:06,600 Speaker 6: could be the case. You know, one reason that having 156 00:09:07,040 --> 00:09:09,920 Speaker 6: lost the gay marriage fight, there's an effort to find 157 00:09:09,960 --> 00:09:14,400 Speaker 6: a different issue that touches on questions of traditional and 158 00:09:14,440 --> 00:09:17,640 Speaker 6: non traditional gender and sexual role to search for another 159 00:09:17,679 --> 00:09:20,720 Speaker 6: issue became even stronger after Dobs, after the Supreme Court 160 00:09:20,840 --> 00:09:23,880 Speaker 6: overturned row versus ways in part because abortion is actually 161 00:09:23,960 --> 00:09:26,360 Speaker 6: quite popular nationally, and so in order to create some 162 00:09:26,440 --> 00:09:29,599 Speaker 6: kind of coalition that could win national elections, needed to 163 00:09:29,640 --> 00:09:33,840 Speaker 6: find an issue which would connect to traditional gender and 164 00:09:33,880 --> 00:09:37,120 Speaker 6: sexual values without touching on something popular like gay marriage 165 00:09:37,200 --> 00:09:39,760 Speaker 6: or abortion. So a way to understand the effect of 166 00:09:39,760 --> 00:09:42,720 Speaker 6: the Trump administration is really that it has accelerated a 167 00:09:42,720 --> 00:09:46,760 Speaker 6: pre existing tendency, and it's turned what were state level 168 00:09:46,880 --> 00:09:51,120 Speaker 6: efforts to make transgender life extremely difficult, if not impossible, 169 00:09:51,240 --> 00:09:55,280 Speaker 6: into national policy. So the redefinition of sex, attempts to 170 00:09:55,320 --> 00:09:59,280 Speaker 6: regulate medical treatments, access to bathrooms, access to sports teams, 171 00:09:59,480 --> 00:10:01,480 Speaker 6: all of those those efforts that we saw in the 172 00:10:01,559 --> 00:10:05,240 Speaker 6: executive orders, and of course, you know, very important restrictions 173 00:10:05,240 --> 00:10:08,840 Speaker 6: and attempted restrictions now in Congress on access to healthcare 174 00:10:09,000 --> 00:10:13,000 Speaker 6: through various kinds of federal aid are reflecting the nationalization 175 00:10:13,080 --> 00:10:15,319 Speaker 6: of what had been state level attacks. 176 00:10:15,640 --> 00:10:20,640 Speaker 2: Does the decision today help legal challenges by President Trump 177 00:10:20,679 --> 00:10:26,120 Speaker 2: and Republican administrations to roll back protections for transgender people. 178 00:10:26,679 --> 00:10:28,679 Speaker 6: It might that it might not. As I said, there 179 00:10:28,720 --> 00:10:31,560 Speaker 6: is not a majority on the court apparently to hold 180 00:10:31,640 --> 00:10:35,319 Speaker 6: that anti transiscrimination, you know, is not visible to the Constitution. 181 00:10:35,440 --> 00:10:38,000 Speaker 6: In other words, there are other kinds of anti transcrimination 182 00:10:38,080 --> 00:10:40,960 Speaker 6: that the Court seems to have held open the possibility 183 00:10:40,960 --> 00:10:43,760 Speaker 6: for recognizing, and so it's going to really depend on 184 00:10:44,240 --> 00:10:46,959 Speaker 6: what is characterized as a medical condition. In other words, 185 00:10:46,960 --> 00:10:49,880 Speaker 6: this opinion says that SB one is discriminating on the 186 00:10:49,880 --> 00:10:53,280 Speaker 6: basis of gender dysphoria and not transgender identity, and so 187 00:10:53,440 --> 00:10:56,680 Speaker 6: other laws do not have that character of being ostensibly 188 00:10:57,040 --> 00:11:01,400 Speaker 6: justified as medical regulations. Instead, I think the normative stakes 189 00:11:01,600 --> 00:11:05,000 Speaker 6: of just trying to force people not to be transgender 190 00:11:05,160 --> 00:11:07,439 Speaker 6: or even clearer in those other situation, And the Court 191 00:11:07,720 --> 00:11:10,719 Speaker 6: hasn't totally eliminated the possibility of reading those arguments in 192 00:11:10,760 --> 00:11:11,320 Speaker 6: the future. 193 00:11:11,480 --> 00:11:15,240 Speaker 2: So the justices still have to rule in another case 194 00:11:15,880 --> 00:11:19,679 Speaker 2: about whether a Maryland school district is violating the Constitution 195 00:11:20,360 --> 00:11:24,959 Speaker 2: by using LGBTQ friendly books in the classroom without giving 196 00:11:25,000 --> 00:11:28,120 Speaker 2: parents the right to opt out. After hearing the oral 197 00:11:28,200 --> 00:11:30,160 Speaker 2: arguments in that case, and I know everyone says, you 198 00:11:30,200 --> 00:11:32,400 Speaker 2: can't tell what the justices are going to do, but 199 00:11:32,400 --> 00:11:36,800 Speaker 2: it seemed pretty clear that there were enough justices to 200 00:11:36,840 --> 00:11:41,360 Speaker 2: support the position of the religious parents. There is that 201 00:11:41,480 --> 00:11:42,920 Speaker 2: case important. 202 00:11:43,320 --> 00:11:46,400 Speaker 6: Yeah, that case is enormously important for another front in 203 00:11:46,559 --> 00:11:49,720 Speaker 6: the ongoing attacks on really any kind of non normative 204 00:11:49,880 --> 00:11:53,400 Speaker 6: families or gender or sexual identities. The issue is actually 205 00:11:53,440 --> 00:11:55,520 Speaker 6: not at all new to the country. It has never 206 00:11:55,520 --> 00:11:58,640 Speaker 6: reached the Supreme Court before, but in the nineteen eighties 207 00:11:58,679 --> 00:12:01,640 Speaker 6: there were a series of lower court cases on identical 208 00:12:01,679 --> 00:12:05,360 Speaker 6: issues where conservatives, in that case, people who self identified 209 00:12:05,559 --> 00:12:09,160 Speaker 6: as fundamentalist Christians, objected to content in public school curricula 210 00:12:09,240 --> 00:12:13,920 Speaker 6: that they characterized as secular humanism, and courts universally said 211 00:12:14,160 --> 00:12:19,000 Speaker 6: that mere exposure to ideas which parents dislike, or even 212 00:12:19,120 --> 00:12:21,680 Speaker 6: ideas which are sensitive to the religious beliefs of parents, 213 00:12:21,760 --> 00:12:25,840 Speaker 6: does not constitute coersion, and so it's not constitutionally suspect 214 00:12:26,240 --> 00:12:30,000 Speaker 6: that court does seem poised to equate contact with coersion 215 00:12:30,160 --> 00:12:33,520 Speaker 6: in ways that are potentially quite quite sweet thing. During 216 00:12:33,600 --> 00:12:37,520 Speaker 6: oral argument, the Actings Lister General who made the arguments, 217 00:12:37,600 --> 00:12:41,760 Speaker 6: suggested that the presence of a transgender student, for example, 218 00:12:41,840 --> 00:12:44,640 Speaker 6: could be considered a kind of content to which a 219 00:12:44,720 --> 00:12:47,960 Speaker 6: religious objection might be relevant. In other words, it was 220 00:12:48,000 --> 00:12:50,880 Speaker 6: possible not only that a parent could object to a 221 00:12:50,920 --> 00:12:52,760 Speaker 6: book being on the shelf or a book being read 222 00:12:53,040 --> 00:12:56,839 Speaker 6: in class that includes, for example, gay characters, but also 223 00:12:56,920 --> 00:13:00,920 Speaker 6: that the existence of a person whose self is disliked 224 00:13:01,200 --> 00:13:04,080 Speaker 6: or reported to be against the religious beliefs of the 225 00:13:04,240 --> 00:13:06,800 Speaker 6: parent could prompt an opt out. So it really has 226 00:13:06,800 --> 00:13:11,320 Speaker 6: the potential to destroy the ability of public school teachers 227 00:13:11,679 --> 00:13:15,200 Speaker 6: to make inclusive choices about what kind of content and 228 00:13:15,240 --> 00:13:17,840 Speaker 6: what kind of classrooms they have that reflect the diversity 229 00:13:17,960 --> 00:13:18,680 Speaker 6: of our society. 230 00:13:18,720 --> 00:13:21,480 Speaker 2: Thanks so much for joining me today. That's professor Kate 231 00:13:21,559 --> 00:13:31,440 Speaker 2: Redburn of Columbia Law School. Crowds outside the courthouse in Dedham, Massachusetts, 232 00:13:31,559 --> 00:13:35,240 Speaker 2: cheered this afternoon after a jury found Karen Reid not 233 00:13:35,360 --> 00:13:39,200 Speaker 2: guilty of second degree murder and manslaughter charges in the 234 00:13:39,200 --> 00:13:43,440 Speaker 2: death of her Boston police officer boyfriend in twenty twenty two. 235 00:13:43,559 --> 00:13:46,360 Speaker 2: The jury did find Read guilty of the lesser charge 236 00:13:46,400 --> 00:13:49,960 Speaker 2: of drunk and driving, handing down its decision after deliberating 237 00:13:50,000 --> 00:13:53,400 Speaker 2: for at least twenty two hours over four days. The 238 00:13:53,520 --> 00:13:57,040 Speaker 2: verdict comes nearly a year after another jury had deadlocked 239 00:13:57,080 --> 00:14:00,600 Speaker 2: over Reid's guilt. It's a huge victory for her lawyers, 240 00:14:00,760 --> 00:14:04,240 Speaker 2: who've asserted that she was framed by police after dropping 241 00:14:04,280 --> 00:14:06,480 Speaker 2: O'Keefe off at a party at the home of a 242 00:14:06,520 --> 00:14:10,720 Speaker 2: fellow officer. Prosecutors argued the forty five year old read 243 00:14:11,040 --> 00:14:15,040 Speaker 2: hit O'Keefe with her SUV before driving away, but the 244 00:14:15,040 --> 00:14:18,800 Speaker 2: defense maintained that O'Keefe was killed inside the home and 245 00:14:18,920 --> 00:14:22,880 Speaker 2: later dragged outside. Joining me is former Palm Beach County 246 00:14:22,920 --> 00:14:27,320 Speaker 2: State Attorney Dave Arenberg. Were you surprised at the not 247 00:14:27,440 --> 00:14:28,600 Speaker 2: guilty verdicts here? 248 00:14:29,160 --> 00:14:32,800 Speaker 1: I was very surprised by it because I thought the 249 00:14:32,840 --> 00:14:35,560 Speaker 1: prosecution this time did an excellent job and focusing the 250 00:14:35,640 --> 00:14:40,360 Speaker 1: jury on the evidence, the data, the cell phone data, 251 00:14:40,960 --> 00:14:44,200 Speaker 1: the evidence of the battery of the cell phone and 252 00:14:44,240 --> 00:14:48,640 Speaker 1: when it started to weaken, and when the phone started 253 00:14:48,640 --> 00:14:52,040 Speaker 1: to freeze, the timing. I mean, this was not speculation. 254 00:14:52,200 --> 00:14:55,680 Speaker 1: Data doesn't have any ax to grind. Data is data, 255 00:14:56,200 --> 00:14:59,720 Speaker 1: and as a result, I thought the jury would listen 256 00:14:59,760 --> 00:15:03,160 Speaker 1: to that. Instead, they got distracted by all the things 257 00:15:03,200 --> 00:15:05,200 Speaker 1: and apparently found reasonable doubt. 258 00:15:05,440 --> 00:15:09,440 Speaker 2: Obviously there were no eyewitness accounts, no direct evidence of 259 00:15:09,520 --> 00:15:12,760 Speaker 2: the hit, but there were a series of experts to 260 00:15:12,960 --> 00:15:17,800 Speaker 2: fill in the evidentiary picture. Do you think that testimony 261 00:15:18,000 --> 00:15:20,720 Speaker 2: was too sophisticated for the jury. 262 00:15:21,640 --> 00:15:23,880 Speaker 1: Whenever you get into a battle of experts, it's a 263 00:15:23,920 --> 00:15:28,880 Speaker 1: problem for prosecution because jurors these days, they want eyewitnesses, 264 00:15:28,960 --> 00:15:34,920 Speaker 1: they want the DNA, they want the conclusive smoking guns 265 00:15:35,320 --> 00:15:37,520 Speaker 1: because they're used to seeing that on TV shows which 266 00:15:37,520 --> 00:15:40,240 Speaker 1: are wrapped up in an hour at CSI and other shows. 267 00:15:40,400 --> 00:15:43,480 Speaker 1: And if you don't have that, jurors will quickly find 268 00:15:43,520 --> 00:15:46,479 Speaker 1: some reasonable doubt, especially if it becomes a battle of experts. 269 00:15:46,520 --> 00:15:49,600 Speaker 1: But I thought that it was a defense that came 270 00:15:49,680 --> 00:15:53,080 Speaker 1: up with a cockamamie alternative theory and thus raised the 271 00:15:53,080 --> 00:15:57,280 Speaker 1: bar for the defense by saying that John O'Keefe entered 272 00:15:57,280 --> 00:15:59,160 Speaker 1: the home. There's no evidence he entered the home. There's 273 00:15:59,400 --> 00:16:02,320 Speaker 1: no evidence that anything happened, but he was hit by 274 00:16:02,320 --> 00:16:07,440 Speaker 1: the car by a drunk, enraged woman who left dozens 275 00:16:07,560 --> 00:16:12,240 Speaker 1: of angry voicemails on the victim's phone while he lay 276 00:16:12,320 --> 00:16:13,080 Speaker 1: dying in the snow. 277 00:16:13,960 --> 00:16:17,120 Speaker 2: And how did the defense explain Read's own words to 278 00:16:17,200 --> 00:16:21,920 Speaker 2: paramedics afterwards, repeatedly saying I hit him. 279 00:16:22,720 --> 00:16:25,240 Speaker 1: Yeah, her own words, I mean, she admitted it. But 280 00:16:25,400 --> 00:16:28,840 Speaker 1: they were able to somehow frame it as maybe she 281 00:16:29,040 --> 00:16:32,920 Speaker 1: was unsure, maybe she thought she did, but the witnesses 282 00:16:32,960 --> 00:16:34,600 Speaker 1: said no, she said I hit him. I hit him. 283 00:16:35,080 --> 00:16:39,200 Speaker 1: I mean. Her own lawyer when this case started said 284 00:16:39,320 --> 00:16:41,960 Speaker 1: that she did hit him, that this was an accident, 285 00:16:43,120 --> 00:16:46,240 Speaker 1: but then they changed their view to try to get 286 00:16:46,280 --> 00:16:47,880 Speaker 1: away with it entirely, and she did. 287 00:16:48,440 --> 00:16:50,720 Speaker 2: Would we call it a mixed verdict because they did 288 00:16:50,800 --> 00:16:55,680 Speaker 2: convict her of operating under the influence of alcohol. Of course, 289 00:16:55,960 --> 00:16:58,080 Speaker 2: the judge just gave her probation for that. 290 00:16:58,720 --> 00:17:01,480 Speaker 1: Well, yeah, but they didn't find or guilty of leaving 291 00:17:01,480 --> 00:17:04,359 Speaker 1: the seam of an accident, so they didn't even feel 292 00:17:04,400 --> 00:17:07,040 Speaker 1: that it was conclusive that she caused an accident. So 293 00:17:07,040 --> 00:17:09,760 Speaker 1: how did he die? It's a binary choice. Either she 294 00:17:09,880 --> 00:17:11,639 Speaker 1: hit him or he went into the house and was 295 00:17:11,720 --> 00:17:15,720 Speaker 1: murdered by law enforcement officers and soccer moms who got 296 00:17:15,760 --> 00:17:18,840 Speaker 1: together in a conspiracy of silence the murder their friend 297 00:17:19,119 --> 00:17:22,199 Speaker 1: and then dump his body on the front lawn. I 298 00:17:22,240 --> 00:17:25,640 Speaker 1: don't even understand how anyone can think that makes sense. 299 00:17:25,640 --> 00:17:28,280 Speaker 1: I mean, if you're a law enforcement officer and you're 300 00:17:28,320 --> 00:17:31,080 Speaker 1: in cahoots with soccer moms, wouldn't you think you would 301 00:17:31,119 --> 00:17:34,119 Speaker 1: just claim self defense if you wanted to kill another 302 00:17:34,160 --> 00:17:36,600 Speaker 1: law enforcement officer, or wouldn't you try to hide the body? 303 00:17:36,880 --> 00:17:41,119 Speaker 1: Why would you throw the body onto the front of 304 00:17:41,119 --> 00:17:45,399 Speaker 1: your house unless it didn't happen, which it didn't happen. 305 00:17:46,240 --> 00:17:49,159 Speaker 2: What some people say is the most powerful defense testimony 306 00:17:49,320 --> 00:17:53,879 Speaker 2: was a snowplow driver who passed the home several times 307 00:17:53,960 --> 00:17:58,359 Speaker 2: in the hours after the alleged collision and said he 308 00:17:58,359 --> 00:18:01,080 Speaker 2: didn't see a two hundred and sixteen six foot one 309 00:18:01,160 --> 00:18:02,399 Speaker 2: man lying in the yard. 310 00:18:03,640 --> 00:18:06,280 Speaker 1: Yeah, and no one did. The snow was coming down 311 00:18:07,080 --> 00:18:10,119 Speaker 1: and no one did. The only person who found this person, 312 00:18:10,119 --> 00:18:12,600 Speaker 1: who is then the next morning buried under the snow. 313 00:18:12,640 --> 00:18:15,240 Speaker 1: The only person who found John O'Keefe was the person 314 00:18:15,240 --> 00:18:18,760 Speaker 1: who hit him, because she knew where his body was. 315 00:18:18,880 --> 00:18:21,479 Speaker 1: Because she hit him, She knew what happened. No one 316 00:18:21,520 --> 00:18:23,520 Speaker 1: else could find him. They were driving around looking for him, 317 00:18:23,520 --> 00:18:27,480 Speaker 1: but she boughted them from a while away because she's 318 00:18:27,520 --> 00:18:30,159 Speaker 1: the one who hit him. So in this case, I 319 00:18:30,200 --> 00:18:32,920 Speaker 1: feel the same way as I did after the O. J. 320 00:18:33,040 --> 00:18:35,959 Speaker 1: Simpson verdict or the Casey Anthony verdict that he had 321 00:18:35,960 --> 00:18:37,120 Speaker 1: a guilty person go free. 322 00:18:37,520 --> 00:18:41,640 Speaker 2: The jury deliberated about twenty two hours over four days. 323 00:18:42,040 --> 00:18:44,879 Speaker 2: Does that sound to you like there was a holdout. 324 00:18:45,760 --> 00:18:49,200 Speaker 1: Yes, it does sound like there was a Vibman discussion 325 00:18:49,680 --> 00:18:53,320 Speaker 1: and this was their compromise verdict. But the compromise isn't 326 00:18:53,320 --> 00:18:55,359 Speaker 1: really much of a compromise because the only buster on 327 00:18:55,400 --> 00:19:00,520 Speaker 1: the lowest count, which gave her probation, so he gets 328 00:19:00,520 --> 00:19:03,760 Speaker 1: the walk free. It's not over yet, though, because there'll 329 00:19:03,800 --> 00:19:06,480 Speaker 1: be civil lawsuits than there are, and there also will 330 00:19:06,520 --> 00:19:10,280 Speaker 1: be a trial of Turtle Boy, one of the bloggers 331 00:19:10,320 --> 00:19:12,120 Speaker 1: who was on her side. 332 00:19:12,880 --> 00:19:17,760 Speaker 2: Usually on a retrial, it's the prosecution that has the advantage. 333 00:19:18,200 --> 00:19:19,600 Speaker 2: Why do you think it was different here? 334 00:19:20,040 --> 00:19:21,840 Speaker 1: I thought the prosecution did a really good job. I 335 00:19:21,880 --> 00:19:25,240 Speaker 1: don't have any issues with him. I think the defense 336 00:19:25,520 --> 00:19:31,280 Speaker 1: was able to capitalize on discontent with police. You had jurors. 337 00:19:31,320 --> 00:19:35,159 Speaker 1: All it takes his few jurors who would have issues 338 00:19:35,200 --> 00:19:38,480 Speaker 1: with police. And here the accusation was that there was 339 00:19:38,520 --> 00:19:41,639 Speaker 1: a police cover up and that the police officers were 340 00:19:41,640 --> 00:19:45,040 Speaker 1: too close to the family inside the house, and the 341 00:19:45,040 --> 00:19:50,560 Speaker 1: police officers were not only incompetent in collecting the evidence. 342 00:19:50,600 --> 00:19:54,520 Speaker 1: That's the defense talking, not me, but also that the 343 00:19:54,600 --> 00:19:56,959 Speaker 1: lead investigator, who was not even called to the stand, 344 00:19:57,600 --> 00:20:01,919 Speaker 1: but that the lead investigator was much discussing individual with 345 00:20:01,960 --> 00:20:04,680 Speaker 1: his comments about Karen Reid, and he did make defensive 346 00:20:04,680 --> 00:20:08,200 Speaker 1: comments that the whole thing was tainted, and I think 347 00:20:08,359 --> 00:20:10,800 Speaker 1: that did have some residents with the jury. I think 348 00:20:10,880 --> 00:20:13,439 Speaker 1: they press want to know why the lead investigator did 349 00:20:13,520 --> 00:20:16,720 Speaker 1: not testify. Maybe they were hiding something, which they weren't. 350 00:20:16,720 --> 00:20:18,600 Speaker 1: They just thought that this guy was aside show a 351 00:20:18,600 --> 00:20:20,160 Speaker 1: distraction because of his comments. 352 00:20:20,640 --> 00:20:23,520 Speaker 2: Yeah, and the defense seemed to emphasize that in the 353 00:20:24,040 --> 00:20:28,679 Speaker 2: closing arguments. Did the defense improve over the first trial 354 00:20:28,760 --> 00:20:31,520 Speaker 2: where it just presented a day and a half of 355 00:20:32,240 --> 00:20:33,280 Speaker 2: defense witnesses. 356 00:20:34,800 --> 00:20:37,120 Speaker 1: I thought the defense did a really good job as 357 00:20:37,160 --> 00:20:39,280 Speaker 1: they did in the first trial. I mean, anytime you 358 00:20:39,440 --> 00:20:44,399 Speaker 1: are able to get a guilty client acquitted, it's a 359 00:20:44,440 --> 00:20:47,920 Speaker 1: real feat for the defense, and they deserve credit. They're 360 00:20:47,960 --> 00:20:52,400 Speaker 1: great lawyers, and it is my belief that she was guilty, 361 00:20:52,600 --> 00:20:57,639 Speaker 1: and I think the evidence conclusively establishes that. But when 362 00:20:57,680 --> 00:21:00,119 Speaker 1: you're a defense learning able to create a s I 363 00:21:00,200 --> 00:21:02,920 Speaker 1: show a distraction and it works with the jury, then 364 00:21:03,520 --> 00:21:06,640 Speaker 1: you're doing your job, I guess. And that's a shame 365 00:21:06,680 --> 00:21:09,040 Speaker 1: for the victims' families, but that's what it is. 366 00:21:09,560 --> 00:21:14,840 Speaker 2: So explain how in a civil case the standard is lower, 367 00:21:15,000 --> 00:21:18,880 Speaker 2: so there might be a verdict in the family's favor 368 00:21:19,040 --> 00:21:22,639 Speaker 2: for damages in the civil case, even though she was 369 00:21:22,640 --> 00:21:24,800 Speaker 2: found not guilty in the criminal case. 370 00:21:25,440 --> 00:21:31,320 Speaker 1: Right in a civil case. The standard is just proponents 371 00:21:31,320 --> 00:21:35,160 Speaker 1: of the evidence. It's much easier to prove and either 372 00:21:35,240 --> 00:21:38,760 Speaker 1: have proved negligence, which is a lower burden, So all around, 373 00:21:38,840 --> 00:21:41,960 Speaker 1: it's easier to prove that case of the evidence just 374 00:21:42,040 --> 00:21:45,440 Speaker 1: means is it more likely than not that Karen Reid 375 00:21:45,840 --> 00:21:48,480 Speaker 1: did something wrong here, committed a tort. You don't have 376 00:21:48,480 --> 00:21:50,160 Speaker 1: to prove anything beyond a reasonable doubt. 377 00:21:50,640 --> 00:21:54,320 Speaker 2: So is the logical conclusion after this verdict that the 378 00:21:54,400 --> 00:21:55,879 Speaker 2: murderer is still out there? 379 00:21:57,600 --> 00:22:01,320 Speaker 1: Yeah? I guess she and Simpson will go search for 380 00:22:01,359 --> 00:22:04,200 Speaker 1: the real killers. That's really what this is, right, This 381 00:22:04,359 --> 00:22:06,919 Speaker 1: was a binary choice. Either she hit him with the 382 00:22:06,960 --> 00:22:10,160 Speaker 1: car or he went inside the house and was murdered 383 00:22:10,400 --> 00:22:14,960 Speaker 1: by law enforcement officers and soccer moms, and then they 384 00:22:15,119 --> 00:22:19,080 Speaker 1: threw their friend's body onto their front lawns. Doesn't make 385 00:22:19,080 --> 00:22:19,679 Speaker 1: any sense. 386 00:22:20,320 --> 00:22:23,320 Speaker 2: So, Dave, what do you make of her supporters? I mean, 387 00:22:23,359 --> 00:22:26,720 Speaker 2: there were crowds of people outside the courthouse waiting for 388 00:22:26,800 --> 00:22:27,320 Speaker 2: the verdict. 389 00:22:27,400 --> 00:22:30,639 Speaker 1: I mean why she became a cult of personality. I 390 00:22:30,680 --> 00:22:33,800 Speaker 1: think that the narrative that was fed by bloggers was 391 00:22:33,840 --> 00:22:37,520 Speaker 1: that here's this sweet, innocent woman who's being framed for 392 00:22:37,560 --> 00:22:41,520 Speaker 1: a crime she didn't commit by by corrupt law enforcement officers. 393 00:22:41,880 --> 00:22:44,720 Speaker 1: And I just feel for those law enforcement officers and 394 00:22:44,760 --> 00:22:47,160 Speaker 1: the families for having their names dragged through the mud 395 00:22:47,800 --> 00:22:50,199 Speaker 1: when they didn't deserve that. They lost a loved one. 396 00:22:50,200 --> 00:22:53,639 Speaker 1: And John o' keith was a good man, and now, 397 00:22:54,119 --> 00:22:56,439 Speaker 1: in my mind, a guilty defendant walks free. 398 00:22:57,800 --> 00:23:00,000 Speaker 2: And when Reid came out of the courthouse, she made 399 00:23:00,200 --> 00:23:03,960 Speaker 2: this statement, no one has fought harder for justice for 400 00:23:04,160 --> 00:23:05,760 Speaker 2: John O'Keefe than I have. 401 00:23:06,560 --> 00:23:09,440 Speaker 1: That's her oj Simpson, I'm gonna find the real killers moment, 402 00:23:10,119 --> 00:23:13,199 Speaker 1: and just tells you all you need to know about her. 403 00:23:13,359 --> 00:23:16,080 Speaker 1: I mean to make a statement like that, what an 404 00:23:16,119 --> 00:23:19,040 Speaker 1: insult to the family, Now, what an insult. It rubs 405 00:23:19,040 --> 00:23:22,520 Speaker 1: salt in the wounds to say something like that. You know, 406 00:23:22,560 --> 00:23:25,679 Speaker 1: at least just go on with your life, and this 407 00:23:25,800 --> 00:23:28,600 Speaker 1: family is suffered enough. But she continues to rub salt 408 00:23:28,640 --> 00:23:29,200 Speaker 1: in that one. 409 00:23:29,320 --> 00:23:32,800 Speaker 2: And following the verdict, several witnesses in the case said 410 00:23:32,840 --> 00:23:36,159 Speaker 2: in a statement that their hearts are with John and 411 00:23:36,240 --> 00:23:40,000 Speaker 2: the entire O'Keefe family and that the result is a 412 00:23:40,040 --> 00:23:44,919 Speaker 2: devastating miscarriage of justice. Thanks so much, Dave. That's former 413 00:23:44,960 --> 00:23:48,800 Speaker 2: Palm Beach County State Attorney Dave Ehrenberg, and that's it 414 00:23:48,840 --> 00:23:51,439 Speaker 2: for this edition of The Bloomberg Law Show. Remember you 415 00:23:51,480 --> 00:23:53,960 Speaker 2: can always get the latest legal news on our Bloomberg 416 00:23:54,040 --> 00:23:57,639 Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify, 417 00:23:57,840 --> 00:24:02,880 Speaker 2: and at www dot Bloomberg dot com slash podcast Slash Law, 418 00:24:03,280 --> 00:24:05,840 Speaker 2: And remember to tune into The Bloomberg Law Show every 419 00:24:05,920 --> 00:24:09,840 Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso 420 00:24:09,960 --> 00:24:11,560 Speaker 2: and you're listening to Bloomberg