1
00:00:02,880 --> 00:00:08,000
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

2
00:00:09,160 --> 00:00:12,640
Speaker 2: The nearly eight hundred thousand same sex couples in this

3
00:00:12,840 --> 00:00:17,600
Speaker 2: country can breathe a sigh of relief, at least for now. Today,

4
00:00:17,640 --> 00:00:21,960
Speaker 2: the Supreme Court rejected an effort to overturn its landmark

5
00:00:22,040 --> 00:00:27,520
Speaker 2: twenty fifteen decision that legalized same sex marriage. Without any comment.

6
00:00:27,760 --> 00:00:32,159
Speaker 2: The Justice is left intact a jury verdict against Kim Davis,

7
00:00:32,640 --> 00:00:37,080
Speaker 2: the former Kentucky court clerk who drew national attention by

8
00:00:37,120 --> 00:00:41,960
Speaker 2: refusing to issue marriage licenses to same sex couples. Today's

9
00:00:42,080 --> 00:00:46,560
Speaker 2: order indicates that Davis couldn't get the four votes necessary

10
00:00:46,920 --> 00:00:49,920
Speaker 2: for the Court to take her case. Although the appeal

11
00:00:50,040 --> 00:00:52,800
Speaker 2: was a long shot, it due attention because the Supreme

12
00:00:52,840 --> 00:00:56,040
Speaker 2: Court has shifted to the right since the five to

13
00:00:56,160 --> 00:01:01,760
Speaker 2: four decision in obergerfelvi hodges Well. My guest is Suzanne Goldberg,

14
00:01:01,880 --> 00:01:04,880
Speaker 2: a professor at Columbia Law School and director of the

15
00:01:04,920 --> 00:01:09,319
Speaker 2: school Septuality and Gender Law Clinic. Suzan, this case brings

16
00:01:09,400 --> 00:01:11,760
Speaker 2: up a name that was in the news ten years ago.

17
00:01:12,200 --> 00:01:15,679
Speaker 2: Tell us more about Kim Davis's appeal of a three

18
00:01:15,760 --> 00:01:20,560
Speaker 2: hundred and sixty thousand dollars, damages and attorney's fee award

19
00:01:20,600 --> 00:01:26,080
Speaker 2: to the couple she refused to give a license to within.

20
00:01:26,080 --> 00:01:30,200
Speaker 3: Days of the Supreme Court granting same sex couples the

21
00:01:30,319 --> 00:01:33,800
Speaker 3: right to marry in a case called Obergofell versus Hodges.

22
00:01:33,840 --> 00:01:39,119
Speaker 3: In twenty fifteen, a couple presented themselves to Kim Davis's

23
00:01:39,200 --> 00:01:41,720
Speaker 3: office and said, you know, we'd like to get our

24
00:01:41,760 --> 00:01:47,119
Speaker 3: marriage license. She said no, And in fact, not only

25
00:01:47,120 --> 00:01:50,200
Speaker 3: did she say no. She's a clerk for Rowan County,

26
00:01:50,400 --> 00:01:53,760
Speaker 3: Kentucky and her job was to issue marriage licenses. She

27
00:01:53,880 --> 00:01:56,800
Speaker 3: said she was acting under God's authority to deny this

28
00:01:56,920 --> 00:01:59,320
Speaker 3: gay couple of marriage licenses. And one of the men

29
00:01:59,480 --> 00:02:02,360
Speaker 3: actually say to her that she had probably given marriage

30
00:02:02,400 --> 00:02:04,760
Speaker 3: licenses murderers and rapists and people who had done all

31
00:02:04,800 --> 00:02:07,960
Speaker 3: sorts of horrible things, and Davis responded by saying it

32
00:02:08,080 --> 00:02:14,000
Speaker 3: was fine because they're straight. So she was ultimately overridden

33
00:02:14,160 --> 00:02:17,440
Speaker 3: and required to present the couple with their marriage license.

34
00:02:17,880 --> 00:02:20,320
Speaker 3: But she's been up and down the change. She's been

35
00:02:20,320 --> 00:02:24,440
Speaker 3: litigating for many years now, almost a decade, saying that she,

36
00:02:24,960 --> 00:02:28,720
Speaker 3: as a government employee, had a right to implement her

37
00:02:28,760 --> 00:02:33,320
Speaker 3: religious views against marriage for same sex couples and based

38
00:02:33,360 --> 00:02:37,480
Speaker 3: on those views, deny a marriage license in her capacity

39
00:02:37,560 --> 00:02:41,720
Speaker 3: as a government official. So quite complicated. It goes beyond

40
00:02:41,760 --> 00:02:44,240
Speaker 3: a basic challenge to the idea of same sex couples

41
00:02:44,240 --> 00:02:47,560
Speaker 3: marrying and says essentially that somebody working as a government

42
00:02:47,560 --> 00:02:51,400
Speaker 3: official should have the right to refuse services to a

43
00:02:51,440 --> 00:02:55,399
Speaker 3: resident or a citizen of that location of that jurisdiction

44
00:02:55,919 --> 00:02:59,560
Speaker 3: based on their faith. So when she first got up

45
00:02:59,600 --> 00:03:03,480
Speaker 3: to this court in twenty twenty, Justice Thomas actually when

46
00:03:03,480 --> 00:03:06,560
Speaker 3: the Court rejected her case, specifically said that her case

47
00:03:06,600 --> 00:03:11,960
Speaker 3: did not cleanly present questions about Obergefell, the Court's marriage

48
00:03:11,960 --> 00:03:16,680
Speaker 3: equality ruling to the court. And so this time around,

49
00:03:17,400 --> 00:03:20,640
Speaker 3: when Kim Davis went up to the court, she brought

50
00:03:20,680 --> 00:03:24,400
Speaker 3: the same complicated set of facts related to her personal position,

51
00:03:24,919 --> 00:03:29,040
Speaker 3: but she also argued that the Court should reverse its

52
00:03:29,120 --> 00:03:33,280
Speaker 3: Obergefell marriage equality ruling based on the same reasoning that

53
00:03:33,320 --> 00:03:36,160
Speaker 3: the Court had used in Dabbs, the case in which

54
00:03:36,760 --> 00:03:40,680
Speaker 3: the Court overturned Reversus weighed and said there's not constitutional

55
00:03:40,720 --> 00:03:44,800
Speaker 3: protection related to abortion. So the question in this case

56
00:03:45,240 --> 00:03:49,200
Speaker 3: was would the Court take up Kim Davis's challenge to

57
00:03:49,960 --> 00:03:54,800
Speaker 3: the Obergafell marriage equality ruling the Court denied cert meaning

58
00:03:54,840 --> 00:03:59,400
Speaker 3: it will not take up her challenge. Most commentators expected

59
00:03:59,440 --> 00:04:04,560
Speaker 3: this because case is so particular to her situation. I

60
00:04:04,600 --> 00:04:07,960
Speaker 3: think that her cert petition, her request for Supreme Court review,

61
00:04:08,000 --> 00:04:12,680
Speaker 3: is best understood not as a realistic shot at getting

62
00:04:13,160 --> 00:04:18,080
Speaker 3: Supreme Court review of a Burgerfell, but instead as additional

63
00:04:18,120 --> 00:04:22,760
Speaker 3: publicity for the idea that the Court someday should overturn

64
00:04:22,880 --> 00:04:25,960
Speaker 3: its marriage equality ruling. And in that sense, even if

65
00:04:25,960 --> 00:04:30,080
Speaker 3: this cert petition itself wasn't very troubling, the broader effort

66
00:04:30,120 --> 00:04:32,799
Speaker 3: to call into question marriage equality is concerning.

67
00:04:33,880 --> 00:04:37,239
Speaker 2: So are you saying that same sex couples shouldn't breathe

68
00:04:37,240 --> 00:04:39,560
Speaker 2: a sigh of relief that the Supreme Court turned this

69
00:04:39,680 --> 00:04:40,279
Speaker 2: case down.

70
00:04:40,720 --> 00:04:43,200
Speaker 3: People can certainly breathe it five of relief that the

71
00:04:43,279 --> 00:04:47,760
Speaker 3: Supreme Court turned down can Davis's certain petition? That said,

72
00:04:47,880 --> 00:04:50,159
Speaker 3: I think it would be a mistake to think this

73
00:04:50,360 --> 00:04:53,560
Speaker 3: is the end of these kinds of cert petitions or

74
00:04:53,600 --> 00:04:56,880
Speaker 3: the end of these battles. There is an ongoing effort

75
00:04:56,960 --> 00:05:02,480
Speaker 3: to try to destabilize the idea of marriage equality and

76
00:05:02,560 --> 00:05:06,320
Speaker 3: ultimately the Supreme Court's ruling on marriage equality. You know

77
00:05:06,360 --> 00:05:08,760
Speaker 3: whether that will succeed. It doesn't seem to me it

78
00:05:08,800 --> 00:05:11,599
Speaker 3: will succeed in the near future. But it is also

79
00:05:11,720 --> 00:05:14,400
Speaker 3: important to keep an eye on this because I think

80
00:05:14,520 --> 00:05:17,200
Speaker 3: many people would have said Roe versus Weight would not

81
00:05:17,520 --> 00:05:20,560
Speaker 3: ultimately be overturned, And of course it was many decades

82
00:05:20,600 --> 00:05:24,799
Speaker 3: after the Court first issued that ruling that was overturned

83
00:05:24,800 --> 00:05:28,640
Speaker 3: in jobs. But we are in a time when well

84
00:05:28,760 --> 00:05:33,120
Speaker 3: established precedents are coming into questions. So it's also a

85
00:05:33,160 --> 00:05:36,520
Speaker 3: time for vigilance for those who care about the right

86
00:05:36,600 --> 00:05:39,600
Speaker 3: to marry as protected by the Constitution, and.

87
00:05:39,560 --> 00:05:44,320
Speaker 2: The Supreme Court has shifted significantly to the right since

88
00:05:44,360 --> 00:05:47,680
Speaker 2: that five to four oh Bergerfeld decision. You have three

89
00:05:47,760 --> 00:05:50,479
Speaker 2: members of that majority are no longer on the Court

90
00:05:50,520 --> 00:05:55,240
Speaker 2: and two have been replaced by Trump appointees, so it's

91
00:05:55,279 --> 00:05:56,360
Speaker 2: a different court.

92
00:05:56,640 --> 00:05:58,760
Speaker 3: It is a very different court from the court that

93
00:05:58,920 --> 00:06:03,960
Speaker 3: decided the Obergafell case granting safe sex couples the freedom

94
00:06:04,000 --> 00:06:08,000
Speaker 3: to marry, and Chief Justice Roberts as well as other

95
00:06:08,040 --> 00:06:11,760
Speaker 3: members of the Court specifically dissented from that ruling, So

96
00:06:11,960 --> 00:06:16,120
Speaker 3: we'll have to see. I think the key takeaway is

97
00:06:16,680 --> 00:06:20,600
Speaker 3: in the marriage equality right is safe at this moment,

98
00:06:20,760 --> 00:06:23,080
Speaker 3: and certainly it is a good thing in my view.

99
00:06:23,080 --> 00:06:26,120
Speaker 3: That the Supreme Court denied Kim Davis's petition for lots

100
00:06:26,160 --> 00:06:30,240
Speaker 3: of reasons, and at the same time, it is important

101
00:06:30,320 --> 00:06:35,520
Speaker 3: to pay attention to what is going on both societally

102
00:06:35,839 --> 00:06:39,520
Speaker 3: and in legal challenges to see where this will land.

103
00:06:39,640 --> 00:06:43,040
Speaker 3: There are a number of state legislators who have introduced

104
00:06:43,360 --> 00:06:46,400
Speaker 3: various bills to try to cut back on marriage equality.

105
00:06:46,839 --> 00:06:49,920
Speaker 3: We haven't seen those get a lot of traction at

106
00:06:49,920 --> 00:06:52,680
Speaker 3: this point, but again, it's something else to pay attention to.

107
00:06:53,240 --> 00:06:55,080
Speaker 2: It always seems to me that it would be very

108
00:06:55,080 --> 00:06:59,320
Speaker 2: difficult to take away same sex marriage because you have

109
00:06:59,480 --> 00:07:03,760
Speaker 2: these new eight hundred thousand couples who've acted in reliance

110
00:07:03,880 --> 00:07:08,279
Speaker 2: on the right to same sex marriage, getting married, having children,

111
00:07:08,440 --> 00:07:12,560
Speaker 2: sharing finances, etc. What would happen to all that if

112
00:07:12,560 --> 00:07:19,600
Speaker 2: the Supreme Court took back the right to same sex marriage.

113
00:07:17,960 --> 00:07:22,520
Speaker 3: To take away marriage equality would be an administrative disaster

114
00:07:23,240 --> 00:07:26,800
Speaker 3: in states and at the federal level. So it would

115
00:07:26,840 --> 00:07:33,520
Speaker 3: be complicated and unfair in addition to in my view, unconstitutional.

116
00:07:33,960 --> 00:07:36,800
Speaker 3: At the same time, we know there are people who

117
00:07:36,840 --> 00:07:40,920
Speaker 3: are committed to taking that away. Precisely. Would also say

118
00:07:40,960 --> 00:07:46,280
Speaker 3: that even though access to abortion presents different issues, access

119
00:07:46,400 --> 00:07:51,640
Speaker 3: to abortion as a part of reproductive healthcare has certainly

120
00:07:51,640 --> 00:07:55,240
Speaker 3: been something that women have relied on for decades where

121
00:07:55,280 --> 00:07:58,920
Speaker 3: they live or in states nearby, and people have ordered

122
00:07:58,920 --> 00:08:01,280
Speaker 3: their lives around this. Not in the same way as marriage,

123
00:08:01,280 --> 00:08:05,480
Speaker 3: but it has certainly been an important form of reproductive

124
00:08:05,480 --> 00:08:08,680
Speaker 3: health care that is now being denied in a number state.

125
00:08:08,880 --> 00:08:13,880
Speaker 3: So there's a set of challenges to access to healthcare,

126
00:08:14,400 --> 00:08:20,560
Speaker 3: to access to relationship recognition that are continuing to be

127
00:08:20,680 --> 00:08:24,760
Speaker 3: debated and have important implications for people who live throughout

128
00:08:24,760 --> 00:08:25,360
Speaker 3: this country.

129
00:08:25,880 --> 00:08:29,559
Speaker 2: Something that repeatedly comes up in discussions about same sex

130
00:08:29,640 --> 00:08:34,320
Speaker 2: marriage is that Conservative Justice Clarence Thomas, in a concurring

131
00:08:34,400 --> 00:08:39,360
Speaker 2: opinion in the DBS abortion case, so the justices should

132
00:08:39,400 --> 00:08:45,280
Speaker 2: reconsider all the courts substantive due process precedents, specifically mentioning

133
00:08:45,320 --> 00:08:50,360
Speaker 2: the cases involving same sex marriage and contraception. Will you

134
00:08:50,360 --> 00:08:51,559
Speaker 2: explain his position?

135
00:08:52,240 --> 00:08:57,200
Speaker 3: The idea of substantive due process is that the US

136
00:08:57,240 --> 00:09:01,400
Speaker 3: Constitution protects Americans in our day to day lives from

137
00:09:01,720 --> 00:09:08,120
Speaker 3: government interference with certain fundamental rights, including rights that are

138
00:09:08,440 --> 00:09:14,000
Speaker 3: deeply recognized as part of individual autonomy. Access to contraception,

139
00:09:14,559 --> 00:09:20,160
Speaker 3: certain parental rights, certain other rights to sexual relationships between

140
00:09:20,160 --> 00:09:24,480
Speaker 3: consenting adults in private for non commercial purposes, and so

141
00:09:25,400 --> 00:09:29,080
Speaker 3: Justice Thomas has long taken the position that the Constitution

142
00:09:29,200 --> 00:09:32,599
Speaker 3: does not protect these rights that have long been considered fundamental.

143
00:09:32,679 --> 00:09:37,160
Speaker 3: Does not protect marriage equality, does not protect access to contraception,

144
00:09:37,280 --> 00:09:41,640
Speaker 3: does not protect access to abortion. If there were more

145
00:09:41,880 --> 00:09:45,480
Speaker 3: justices to take his position that is not only with

146
00:09:45,520 --> 00:09:50,120
Speaker 3: respect to abortion and marriage, but more generally sweeping off

147
00:09:50,120 --> 00:09:54,560
Speaker 3: the table any constitutional protections understood in these ways, we

148
00:09:54,600 --> 00:09:57,360
Speaker 3: would be living in a very different country. And again,

149
00:09:57,400 --> 00:10:00,000
Speaker 3: it's not to say that everything would change at once,

150
00:10:00,400 --> 00:10:05,040
Speaker 3: because the absence of a substantive due process protection doesn't

151
00:10:05,080 --> 00:10:09,000
Speaker 3: mean that states could not grant marriage equality or provide

152
00:10:09,080 --> 00:10:12,800
Speaker 3: access to abortion. This is why, even in a world

153
00:10:12,960 --> 00:10:17,600
Speaker 3: where Dobbs exists, we have many states that protect the

154
00:10:17,679 --> 00:10:20,360
Speaker 3: right of a woman's seek an abortion as part of

155
00:10:20,360 --> 00:10:23,400
Speaker 3: a reproductive health care. But what it means is that

156
00:10:23,440 --> 00:10:27,800
Speaker 3: if a state chooses to criminalize abortion or chooses to

157
00:10:28,440 --> 00:10:33,440
Speaker 3: refuse to recognizing six couples marriages, if Obergerfella were to

158
00:10:33,480 --> 00:10:37,439
Speaker 3: be overturned, then states could refuse to provide those protections.

159
00:10:37,760 --> 00:10:41,160
Speaker 2: It's been noted that Thomas didn't mention the case of

160
00:10:41,240 --> 00:10:46,319
Speaker 2: loving versus Virginia, which struck down interracial marriage. Is there

161
00:10:46,400 --> 00:10:50,680
Speaker 2: a difference in the legal analysis or a distinction there possibly?

162
00:10:50,840 --> 00:10:55,720
Speaker 3: You know, when the Supreme Court druck down Virginia's while

163
00:10:55,840 --> 00:11:00,000
Speaker 3: criminalizing into racial marriages, the court recognized a part of

164
00:11:00,080 --> 00:11:04,120
Speaker 3: the problem with that law was that it gave effect

165
00:11:04,480 --> 00:11:07,960
Speaker 3: to white supremacy, gave effect to the view that white

166
00:11:07,960 --> 00:11:11,800
Speaker 3: people were superior to people of color. So the court

167
00:11:11,840 --> 00:11:15,080
Speaker 3: did two things. It recognized that the government should not

168
00:11:15,360 --> 00:11:20,960
Speaker 3: interfere with people's fundamental right to marry by restricting the

169
00:11:21,080 --> 00:11:24,040
Speaker 3: race of the person who they could marry. But also

170
00:11:24,280 --> 00:11:28,040
Speaker 3: the language of that ruling was in part tied deeply

171
00:11:28,200 --> 00:11:32,240
Speaker 3: to the prohibition on race discrimination and a justification for

172
00:11:32,320 --> 00:11:38,040
Speaker 3: that restriction. So interracial marriage would be analyzed differently somewhat

173
00:11:38,240 --> 00:11:41,240
Speaker 3: from the right to same sex couples marrying, but the

174
00:11:41,480 --> 00:11:45,800
Speaker 3: underlying idea is the same in the sense of should

175
00:11:45,800 --> 00:11:49,120
Speaker 3: the government be able to restrict who you can marry

176
00:11:49,200 --> 00:11:52,000
Speaker 3: so long as that other person is a consenting adult

177
00:11:52,080 --> 00:11:54,920
Speaker 3: who is not immediately related to stay.

178
00:11:54,640 --> 00:11:58,600
Speaker 2: With me, Suzanne. Coming up next, another setback for transgender

179
00:11:58,679 --> 00:12:00,400
Speaker 2: rights Blomberg.

180
00:12:03,520 --> 00:12:07,720
Speaker 1: This is Bloomberg Law with June GROSSEO from Bloomberg Radio.

181
00:12:09,360 --> 00:12:12,760
Speaker 2: It's the twenty fourth win for the Trump administration on

182
00:12:12,840 --> 00:12:16,960
Speaker 2: the Supreme Court's emergency docket and the second blow to

183
00:12:17,080 --> 00:12:21,760
Speaker 2: transgender rights from the conservative justices on the so called

184
00:12:21,840 --> 00:12:26,400
Speaker 2: shadow docket. In a vote down ideological lines, the Court

185
00:12:26,480 --> 00:12:30,480
Speaker 2: is allowing the Trump administration to go forward with requiring

186
00:12:30,640 --> 00:12:34,200
Speaker 2: passports to be marked with the sex assigned at birth.

187
00:12:34,440 --> 00:12:38,360
Speaker 2: This reverses the policy in place since nineteen ninety two,

188
00:12:38,840 --> 00:12:43,120
Speaker 2: which had allowed passports to reflect a person's gender identity.

189
00:12:43,440 --> 00:12:48,360
Speaker 2: I've been talking to Professor Suzanne Goldberg of Columbia Law School. Suzanne,

190
00:12:48,360 --> 00:12:52,520
Speaker 2: will you explain the change in policy by the Trump administration?

191
00:12:53,320 --> 00:12:58,000
Speaker 3: For nearly thirty years, actually thirty three, and as Justice

192
00:12:58,040 --> 00:13:02,880
Speaker 3: Jackson points out, across six presidential administrations, transgender Americans have

193
00:13:02,920 --> 00:13:07,400
Speaker 3: been able to get US passports with their gender marker

194
00:13:07,760 --> 00:13:11,679
Speaker 3: that accurately matches their gender identity. So transgender man can

195
00:13:11,679 --> 00:13:14,960
Speaker 3: get M on his passport and a transgender woman can

196
00:13:15,000 --> 00:13:18,680
Speaker 3: get an F on her passport, which is important for

197
00:13:19,120 --> 00:13:22,240
Speaker 3: many reasons, including so that the person looks like they

198
00:13:22,280 --> 00:13:26,080
Speaker 3: match their passport. But from basically nineteen ninety two to

199
00:13:26,120 --> 00:13:31,120
Speaker 3: twenty ten, there was an eligibility requirement related to a

200
00:13:31,160 --> 00:13:36,160
Speaker 3: surgical transition that has changed over time, but the point

201
00:13:36,200 --> 00:13:38,679
Speaker 3: is for thirty three years this has been the same.

202
00:13:39,200 --> 00:13:43,160
Speaker 3: On the first day of his administration, Donald Trump issued

203
00:13:43,160 --> 00:13:48,040
Speaker 3: an executive order saying that transgender people are corrosive to

204
00:13:48,120 --> 00:13:50,360
Speaker 3: the United States. In so many words, he used the

205
00:13:50,360 --> 00:13:54,600
Speaker 3: word corrosive and directing the State Department to no longer

206
00:13:54,720 --> 00:13:57,679
Speaker 3: issue passport to people that would be consistent with their

207
00:13:57,720 --> 00:14:02,680
Speaker 3: gender identity if they're transgender and so, the Trump executive

208
00:14:02,760 --> 00:14:06,400
Speaker 3: order led the State Department to take two steps, first

209
00:14:06,840 --> 00:14:11,720
Speaker 3: to stop issuing passports to transgender people consistent with their

210
00:14:11,760 --> 00:14:15,640
Speaker 3: gender identity, and second to remove the ex gender marker,

211
00:14:16,000 --> 00:14:19,880
Speaker 3: which was an option for anyone who does not fit

212
00:14:19,960 --> 00:14:22,360
Speaker 3: the M or the F or someone who doesn't want

213
00:14:22,400 --> 00:14:26,640
Speaker 3: to share their gender identity with the US government. So,

214
00:14:27,360 --> 00:14:32,440
Speaker 3: put into simple terms, the Trump administration changed policy on

215
00:14:32,480 --> 00:14:35,440
Speaker 3: the first day of the administration, and the State Department

216
00:14:35,480 --> 00:14:40,920
Speaker 3: followed two days later to prevent transgender Americans from obtaining

217
00:14:40,960 --> 00:14:43,360
Speaker 3: passports consistent with their gender identity.

218
00:14:43,800 --> 00:14:47,760
Speaker 2: This was an unsigned order, and the Conservative Justice's very

219
00:14:47,960 --> 00:14:51,720
Speaker 2: short explanation seems to me like it's ignoring the facts

220
00:14:51,800 --> 00:14:55,360
Speaker 2: that were presented in the case, the Justice has said

221
00:14:56,040 --> 00:14:59,760
Speaker 2: displaying passport holders sex at births no more offense equal

222
00:14:59,800 --> 00:15:03,960
Speaker 2: for detection principles than displaying their country of birth. In

223
00:15:04,000 --> 00:15:07,600
Speaker 2: both cases, the government is merely attesting to historical fact

224
00:15:08,080 --> 00:15:11,080
Speaker 2: without subjecting anyone to differential treatment.

225
00:15:11,960 --> 00:15:17,520
Speaker 3: It is stunning because the plaintiffs in the case explained

226
00:15:17,520 --> 00:15:20,480
Speaker 3: to the district court, which agreed as did the Court

227
00:15:20,480 --> 00:15:25,040
Speaker 3: of Appeals, that if you are a transgender man and

228
00:15:25,120 --> 00:15:28,240
Speaker 3: you have a passport that says f on it, it

229
00:15:28,440 --> 00:15:33,360
Speaker 3: does have real world harmful consequences every time you have

230
00:15:33,400 --> 00:15:36,800
Speaker 3: to show that passport to someone, because the person receiving

231
00:15:36,840 --> 00:15:40,400
Speaker 3: the passport may say, as has happened to some of

232
00:15:40,440 --> 00:15:45,040
Speaker 3: the plaintiffs, you're using fraudulent documents because you don't appear

233
00:15:45,120 --> 00:15:48,880
Speaker 3: to match your passport gender marker. So this has led

234
00:15:48,880 --> 00:15:52,480
Speaker 3: to some of the plaintiffs being accused of fraud, one

235
00:15:52,520 --> 00:15:55,960
Speaker 3: of the plaintiffs being strip searched, other plaintiffs facing all

236
00:15:56,000 --> 00:15:59,320
Speaker 3: sorts of problems as they've tried to cross borders. So

237
00:15:59,520 --> 00:16:02,720
Speaker 3: for one and the Supreme Court kind of casual remark

238
00:16:02,880 --> 00:16:06,960
Speaker 3: that this is as insignificant as somebody's sort of national

239
00:16:07,000 --> 00:16:11,960
Speaker 3: origin or place of citizenship is just untrue. In addition,

240
00:16:12,760 --> 00:16:16,960
Speaker 3: the country of birth is not anything that affects somebody

241
00:16:17,000 --> 00:16:20,040
Speaker 3: when they're using your passport and passing through security, but

242
00:16:20,120 --> 00:16:23,520
Speaker 3: the gender marker is used to check accuracy, and so

243
00:16:23,800 --> 00:16:27,760
Speaker 3: even on its face, the Supreme Court's analysis is wrong.

244
00:16:28,320 --> 00:16:31,280
Speaker 3: The Supreme Court description, I can't really call it analysis.

245
00:16:31,440 --> 00:16:34,400
Speaker 3: The Supreme Court statement is wrong, and a dissent from

246
00:16:34,480 --> 00:16:36,200
Speaker 3: Justice Jackson points that out as well.

247
00:16:36,640 --> 00:16:40,040
Speaker 2: The Court also found that the administration is likely to

248
00:16:40,080 --> 00:16:44,320
Speaker 2: win on the merits, and the administration faced irreparable injury.

249
00:16:45,080 --> 00:16:48,320
Speaker 2: I'm not sure where the irreparable injury is, since this

250
00:16:48,520 --> 00:16:53,000
Speaker 2: policy is a new one that's changing what's been in place,

251
00:16:53,600 --> 00:16:58,960
Speaker 2: but the conservative justices have found irreparable injury in almost

252
00:16:59,040 --> 00:17:03,400
Speaker 2: all of present in Trump's emergency requests.

253
00:17:04,160 --> 00:17:08,439
Speaker 3: There is no irreparable injury in the traditional way that

254
00:17:08,560 --> 00:17:11,960
Speaker 3: courts look at a reparable harm. To let me explain,

255
00:17:12,960 --> 00:17:17,280
Speaker 3: when a statute comes over from Congress and is challenged

256
00:17:17,359 --> 00:17:21,879
Speaker 3: in the court, it is given a presumption of constitutionality, right,

257
00:17:21,920 --> 00:17:25,800
Speaker 3: so the court assumes it's constitutional. But sometimes plaintiffs can

258
00:17:25,880 --> 00:17:29,000
Speaker 3: show actually it's on constitutional, and the court will strike

259
00:17:29,080 --> 00:17:32,440
Speaker 3: it down. And there's understood to be some arguable harm

260
00:17:32,520 --> 00:17:35,720
Speaker 3: to government when a statute is put on hold, But

261
00:17:35,840 --> 00:17:39,400
Speaker 3: when a government policy is put on hold, like an

262
00:17:39,440 --> 00:17:43,639
Speaker 3: executive order or a preference of the president, that's a

263
00:17:43,680 --> 00:17:47,200
Speaker 3: different situation that is not entitled to the same presumption

264
00:17:47,240 --> 00:17:52,720
Speaker 3: of constitutionality as a statute that has been passed by Congress.

265
00:17:52,760 --> 00:17:56,399
Speaker 3: And the upshot is just saying, well, the government is

266
00:17:56,440 --> 00:17:59,399
Speaker 3: irreparably harmed by not being able to put in place

267
00:17:59,520 --> 00:18:04,320
Speaker 3: its desire passport policy is akin to saying the government

268
00:18:04,440 --> 00:18:08,680
Speaker 3: is irreparably harmed whenever it is stopped from doing something

269
00:18:08,720 --> 00:18:11,240
Speaker 3: that it would like to do, And that is akin

270
00:18:11,359 --> 00:18:15,480
Speaker 3: to having no judicial review over government actions at all,

271
00:18:15,600 --> 00:18:19,320
Speaker 3: at least not at this preliminary stage. So that's a

272
00:18:19,440 --> 00:18:24,159
Speaker 3: very serious problem from a sort of basic approach to

273
00:18:24,240 --> 00:18:26,959
Speaker 3: constitutional analysis of executive actions.

274
00:18:27,480 --> 00:18:31,479
Speaker 2: Justice Jackson wrote that the Court has once again paved

275
00:18:31,520 --> 00:18:35,160
Speaker 2: the way for the immediate infliction of injury without adequate

276
00:18:35,680 --> 00:18:40,040
Speaker 2: or really any justification. This is also a pattern of

277
00:18:40,080 --> 00:18:44,200
Speaker 2: the Court at this point basically allowing the Trump administration

278
00:18:44,320 --> 00:18:47,720
Speaker 2: anything it asked for on the emergency docket and saying, well,

279
00:18:47,760 --> 00:18:49,600
Speaker 2: this is while litigation is pending.

280
00:18:50,160 --> 00:18:54,240
Speaker 3: Yes, this is the twenty fourth consecutive grant of emergency

281
00:18:54,280 --> 00:19:00,000
Speaker 3: relief to the government, and this process of the Supreme

282
00:19:00,119 --> 00:19:05,119
Speaker 3: Court staining rulings of lower courts finding problems constitutional or

283
00:19:05,160 --> 00:19:10,080
Speaker 3: other problems with government policies. This phenomenon of the Supreme

284
00:19:10,080 --> 00:19:12,639
Speaker 3: Court repeatedly saying, oh, we're going to put those lower

285
00:19:12,640 --> 00:19:17,600
Speaker 3: court rulings on hold has had the effect of basically

286
00:19:17,640 --> 00:19:23,080
Speaker 3: giving the Trump administration a free pass to continue enforcing

287
00:19:23,520 --> 00:19:28,480
Speaker 3: policies that and taking actions that lower courts have held

288
00:19:28,520 --> 00:19:33,560
Speaker 3: to be not only likely unconstitutional, but also causing irreparable

289
00:19:33,560 --> 00:19:35,360
Speaker 3: harm to the people who have been affected.

290
00:19:35,760 --> 00:19:36,600
Speaker 2: So this is.

291
00:19:37,000 --> 00:19:40,160
Speaker 3: Certainly part of a larger trend. The striking thing about

292
00:19:40,160 --> 00:19:43,320
Speaker 3: this case is that the harm to the individuals who

293
00:19:43,400 --> 00:19:47,840
Speaker 3: are denied passports that accurately reflect their gender identity is

294
00:19:48,119 --> 00:19:52,199
Speaker 3: stunningly clear. Another problem here is that the government is

295
00:19:52,240 --> 00:19:57,080
Speaker 3: obligated anytime it changes a policy that collect information from

296
00:19:57,200 --> 00:20:01,760
Speaker 3: the American people. The government is obligated under the Paperwork

297
00:20:01,800 --> 00:20:05,800
Speaker 3: Reduction Act, which was passed by Congress, to spend sixty

298
00:20:05,880 --> 00:20:10,120
Speaker 3: days collecting information and public comment on whether it can

299
00:20:10,160 --> 00:20:12,760
Speaker 3: make this sort of a change, and of course, changing

300
00:20:12,760 --> 00:20:17,000
Speaker 3: its passport rule two days after the president was inaugurated

301
00:20:17,040 --> 00:20:20,879
Speaker 3: and issued. His executive order is fully out of compliance

302
00:20:21,000 --> 00:20:23,399
Speaker 3: with this law that is supposed to apply to all

303
00:20:23,400 --> 00:20:24,760
Speaker 3: of the government's actions.

304
00:20:25,040 --> 00:20:28,760
Speaker 2: As I mentioned, this order stays in place as a

305
00:20:28,800 --> 00:20:32,240
Speaker 2: litigation below continues. So how much of a blow is

306
00:20:32,280 --> 00:20:35,440
Speaker 2: it to the rights of transgender people?

307
00:20:36,160 --> 00:20:40,760
Speaker 3: This is a tremendous blow in terms of the human cost.

308
00:20:41,400 --> 00:20:45,560
Speaker 3: One only has to think about the named plaintiff, Ashton Orr,

309
00:20:45,840 --> 00:20:49,840
Speaker 3: who needed to travel out of the country needed a

310
00:20:49,880 --> 00:20:53,359
Speaker 3: new passport. Ashton Orders a man. He's a transgender man.

311
00:20:53,600 --> 00:20:56,359
Speaker 3: The only passport he is able to get to cross

312
00:20:56,400 --> 00:21:01,040
Speaker 3: borders has an s gender marker on it that reveals

313
00:21:01,680 --> 00:21:04,440
Speaker 3: Asketon to be transgender, not only as he crosses the

314
00:21:04,480 --> 00:21:07,160
Speaker 3: border out of the United States, but as he crosses

315
00:21:07,200 --> 00:21:11,800
Speaker 3: into other countries, possibly putting him in danger of harm

316
00:21:11,920 --> 00:21:15,160
Speaker 3: from other governments and now as well as our own.

317
00:21:15,520 --> 00:21:21,560
Speaker 3: The harms are very serious, very painful to individuals, and

318
00:21:21,760 --> 00:21:25,239
Speaker 3: also are reflective of a broader harm to people who

319
00:21:25,280 --> 00:21:29,040
Speaker 3: are not transgender, which is that the government can, for

320
00:21:29,400 --> 00:21:33,760
Speaker 3: irrational reasons, possibly hostile reasons, towards this group of people,

321
00:21:34,200 --> 00:21:37,639
Speaker 3: or any group of people more generally, choose to withdraw

322
00:21:37,720 --> 00:21:41,040
Speaker 3: passports right choose to do any number of things that

323
00:21:41,119 --> 00:21:45,200
Speaker 3: cause harm, and the Supreme Court is unwilling to say

324
00:21:45,240 --> 00:21:47,639
Speaker 3: hold on government. The lower court has found a problem

325
00:21:47,680 --> 00:21:50,840
Speaker 3: with this law or this new policy, and we need

326
00:21:50,880 --> 00:21:54,000
Speaker 3: to hold while this case is being litigated. So there

327
00:21:54,000 --> 00:21:57,120
Speaker 3: are real world problems, there are constitutional problems, there are

328
00:21:57,560 --> 00:22:00,160
Speaker 3: traditional separation of power problems that we're seeing.

329
00:22:01,080 --> 00:22:05,200
Speaker 2: In May, the Supreme Court allowed him to start discharging

330
00:22:05,280 --> 00:22:09,400
Speaker 2: transgender members of the military at oral arguments. This term,

331
00:22:09,440 --> 00:22:13,440
Speaker 2: it appears that the Conservatives will allow state laws that

332
00:22:13,600 --> 00:22:17,919
Speaker 2: ban licensed counselors from using talk therapy to try to

333
00:22:18,040 --> 00:22:22,240
Speaker 2: change a child sexual orientation or gender identity. And there's

334
00:22:22,280 --> 00:22:26,320
Speaker 2: another case coming up about whether states can ban transgender

335
00:22:26,560 --> 00:22:30,400
Speaker 2: girls and women from competing for their schools on female

336
00:22:30,400 --> 00:22:33,880
Speaker 2: athletic teams. It's hard to ignore that the Court has

337
00:22:33,960 --> 00:22:38,040
Speaker 2: been consistently ruling against transgender rights.

338
00:22:38,520 --> 00:22:44,560
Speaker 3: Yeah, I mean, there has been a current of policies,

339
00:22:44,840 --> 00:22:48,639
Speaker 3: you know, from the Trump administration and laws at the

340
00:22:48,680 --> 00:22:52,360
Speaker 3: state level that restrict the lives or try to restrict

341
00:22:52,359 --> 00:22:56,480
Speaker 3: the lives of transgender people in every imaginable way, from

342
00:22:56,600 --> 00:23:01,480
Speaker 3: getting identity documents to using the bathroom, to participating fully

343
00:23:01,520 --> 00:23:05,840
Speaker 3: at school, to serving the country in the military, and

344
00:23:06,000 --> 00:23:09,280
Speaker 3: so far the court when these issues have been presented,

345
00:23:09,320 --> 00:23:14,200
Speaker 3: the Court has said it's okay to create this legal barrier,

346
00:23:14,280 --> 00:23:19,159
Speaker 3: really like a legal burden that harms transgender people. In

347
00:23:19,240 --> 00:23:23,240
Speaker 3: twenty twenty, the court took a different tack. This involved

348
00:23:23,240 --> 00:23:26,600
Speaker 3: in an employment discrimination case, a transgender woman was fired

349
00:23:27,040 --> 00:23:28,959
Speaker 3: from a role at a funeral home where she had

350
00:23:29,000 --> 00:23:32,760
Speaker 3: served for many years, and she sued the employer, saying

351
00:23:32,760 --> 00:23:37,640
Speaker 3: it was sex discrimination that she was treated differently because

352
00:23:37,640 --> 00:23:40,880
Speaker 3: of her sex, being fired based on her sex, right

353
00:23:40,920 --> 00:23:45,280
Speaker 3: based on that she is transgender. And in that case

354
00:23:45,640 --> 00:23:49,840
Speaker 3: Bosta versus Clayton County, which also involved two other cases

355
00:23:50,000 --> 00:23:53,840
Speaker 3: with sexual orientation discrimination at issue. In that case, the

356
00:23:53,880 --> 00:23:59,400
Speaker 3: court said it is sex discrimination to fire a transgender

357
00:23:59,440 --> 00:24:02,240
Speaker 3: person because if there's no way to understand this other

358
00:24:02,359 --> 00:24:05,679
Speaker 3: than they're being fired because of their sex. One of

359
00:24:05,720 --> 00:24:08,680
Speaker 3: the big questions before the court is that case came

360
00:24:08,800 --> 00:24:11,640
Speaker 3: under Title seven, which is a federal law that prohibits

361
00:24:11,640 --> 00:24:15,760
Speaker 3: sex discrimination as well as other forms of discrimination and employment,

362
00:24:16,480 --> 00:24:19,520
Speaker 3: and a question is whether it's a logic of understanding

363
00:24:19,560 --> 00:24:23,199
Speaker 3: sex discrimination in that boss Stock ruling from twenty twenty

364
00:24:23,680 --> 00:24:26,480
Speaker 3: is going to carry over into these other areas, or

365
00:24:26,760 --> 00:24:29,679
Speaker 3: will the Court say as it may appear to be

366
00:24:29,680 --> 00:24:32,920
Speaker 3: inclined to do. Oh no, that might be sex discrimination,

367
00:24:33,040 --> 00:24:33,800
Speaker 3: but this isn't.

368
00:24:34,320 --> 00:24:37,800
Speaker 2: Well, We'll have two cases at least this term that

369
00:24:37,880 --> 00:24:42,119
Speaker 2: will further illustrate how the Court's dealing with transgender rights.

370
00:24:42,359 --> 00:24:46,159
Speaker 2: Thanks so much for joining me, Suzanne. That's Professor Suzanne

371
00:24:46,160 --> 00:24:50,639
Speaker 2: Goldberg of Columbia Law School coming up next. The second

372
00:24:50,680 --> 00:24:54,160
Speaker 2: in command at the Justice Department talks about its war

373
00:24:54,280 --> 00:24:56,399
Speaker 2: on judges. This is Bloomberg.

374
00:24:57,720 --> 00:25:00,800
Speaker 1: What a travesty it is when you have an individual

375
00:25:00,960 --> 00:25:04,400
Speaker 1: judge be able to stop an entire operation or an

376
00:25:04,560 --> 00:25:10,919
Speaker 1: entire administrative policy that's constitutional and allowed, just because he

377
00:25:11,040 --> 00:25:14,480
Speaker 1: or she chooses to do so. So it's a war.

378
00:25:14,840 --> 00:25:18,000
Speaker 2: That was the second in command at the Justice Department,

379
00:25:18,320 --> 00:25:23,920
Speaker 2: Todd Blanch, describing the Trump administration's war against federal judges

380
00:25:24,680 --> 00:25:28,600
Speaker 2: and calling on young conservative lawyers in the audience to

381
00:25:28,720 --> 00:25:29,560
Speaker 2: join the battle.

382
00:25:30,080 --> 00:25:34,760
Speaker 1: There has got to be a couple dozen young lawyers

383
00:25:35,080 --> 00:25:38,679
Speaker 1: who are thirsty and hungry and ready to work because

384
00:25:38,840 --> 00:25:41,359
Speaker 1: because we need you, Because because it is a war,

385
00:25:41,480 --> 00:25:45,560
Speaker 1: and it is something that we will not win unless

386
00:25:45,600 --> 00:25:48,480
Speaker 1: we keep on fighting. And it's a Joining me is.

387
00:25:48,400 --> 00:25:54,360
Speaker 2: Bloomberg Law reporter Suzanne Monnac. Suzanne, where did Blanche give

388
00:25:54,400 --> 00:25:55,320
Speaker 2: these remarks?

389
00:25:55,960 --> 00:25:58,920
Speaker 4: Todd Blanch's the Deputy Attorney General at the Justice Department.

390
00:25:59,000 --> 00:26:02,480
Speaker 4: I was delivering remarks last week at the Federalist Society convention.

391
00:26:02,920 --> 00:26:05,760
Speaker 4: That's a legal conservative legal group, and they hold an

392
00:26:05,760 --> 00:26:08,560
Speaker 4: annual convention over a course of I was three days

393
00:26:08,560 --> 00:26:09,640
Speaker 4: this year in Washington.

394
00:26:10,359 --> 00:26:14,760
Speaker 2: It's stunning to hear a Justice Department official describe a

395
00:26:14,960 --> 00:26:16,440
Speaker 2: war against judges.

396
00:26:17,119 --> 00:26:20,120
Speaker 4: Yes, it was fairly striking, in fiery language. He referred

397
00:26:20,119 --> 00:26:23,000
Speaker 4: to it as a war against what he described as

398
00:26:23,080 --> 00:26:27,679
Speaker 4: activist judges who've been ruling against the administration and in

399
00:26:27,680 --> 00:26:30,240
Speaker 4: his view, in some of these cases getting reversed by

400
00:26:30,359 --> 00:26:32,840
Speaker 4: the conservative Supreme Court. And I should say when I

401
00:26:32,840 --> 00:26:34,639
Speaker 4: say reversed, I mean a lot of these cases are

402
00:26:34,640 --> 00:26:37,199
Speaker 4: coming up at pretty interim stages. But we've seen some

403
00:26:37,240 --> 00:26:40,479
Speaker 4: instances where the Supreme Court has paused lower court rulings

404
00:26:40,480 --> 00:26:43,720
Speaker 4: against the administration while litigation continues. That's on the so

405
00:26:43,920 --> 00:26:47,440
Speaker 4: called emergency dockets. So I should clarify these are preliminary decisions.

406
00:26:47,720 --> 00:26:49,960
Speaker 4: But he's pointing to those wins at the Supreme Court

407
00:26:50,040 --> 00:26:52,400
Speaker 4: and at other appeals courts to say that these are

408
00:26:52,480 --> 00:26:55,520
Speaker 4: lower court judges that are acting outside their authority and

409
00:26:55,600 --> 00:26:57,600
Speaker 4: that he just sees it as a battle, as a war,

410
00:26:57,640 --> 00:26:59,760
Speaker 4: and he put out a call for lawyers even to

411
00:27:00,040 --> 00:27:01,320
Speaker 4: a joint what he described as a fight.

412
00:27:02,359 --> 00:27:05,080
Speaker 2: Was this a Q and A. Did anyone challenge him

413
00:27:05,160 --> 00:27:08,880
Speaker 2: on the fact that the Supreme Court has a super

414
00:27:09,240 --> 00:27:15,800
Speaker 2: conservative majority and it's that majority that's reversing these lower

415
00:27:15,840 --> 00:27:17,560
Speaker 2: court decisions against Trump.

416
00:27:17,880 --> 00:27:20,720
Speaker 4: The conversation was moderated by Gene Hamilton, who's a former

417
00:27:20,800 --> 00:27:23,879
Speaker 4: Trump White House aid as well as the co founder

418
00:27:23,920 --> 00:27:26,479
Speaker 4: of a conservative legal group. I would describe it as

419
00:27:26,480 --> 00:27:29,239
Speaker 4: a fairly friendly discussion. It wasn't so much styled as

420
00:27:29,240 --> 00:27:30,359
Speaker 4: an adversarial debate.

421
00:27:30,720 --> 00:27:33,160
Speaker 2: Uh huh, And I mean this is the old refrain

422
00:27:33,280 --> 00:27:37,320
Speaker 2: of activist judges that conservatives have been making for so

423
00:27:37,440 --> 00:27:42,240
Speaker 2: many years. He's also talking about activist bar associations.

424
00:27:43,800 --> 00:27:46,880
Speaker 4: Yes, we saw the bar associations also or a target

425
00:27:47,520 --> 00:27:51,400
Speaker 4: of his hire at this conversation. Specifically, there have been

426
00:27:51,440 --> 00:27:55,520
Speaker 4: some misconduct complaints filed against lawyers within the administration for

427
00:27:55,680 --> 00:27:59,280
Speaker 4: their conduct in court, and we saw Blant say that

428
00:27:59,359 --> 00:28:01,800
Speaker 4: he's looking to to do something different. He says he

429
00:28:01,840 --> 00:28:04,640
Speaker 4: wants to have that process be handled in house, as

430
00:28:04,640 --> 00:28:07,760
Speaker 4: opposed to within the bar associations. He specifically took aim

431
00:28:07,760 --> 00:28:09,720
Speaker 4: at the DC BAR as being one of the worst,

432
00:28:09,960 --> 00:28:12,000
Speaker 4: and he called them activist bar association.

433
00:28:12,400 --> 00:28:14,480
Speaker 2: How would he take that power away from the bar

434
00:28:14,560 --> 00:28:17,000
Speaker 2: associations and put it in the Justice Department.

435
00:28:17,720 --> 00:28:19,640
Speaker 4: There was not a ton of detail given, and that

436
00:28:19,640 --> 00:28:22,479
Speaker 4: that is a person excellent question. He said that they

437
00:28:22,480 --> 00:28:24,520
Speaker 4: want to have a new system where complaints against trial

438
00:28:24,600 --> 00:28:27,560
Speaker 4: lawyers and prosecutors are handled in house, within an ethics

439
00:28:27,640 --> 00:28:30,680
Speaker 4: unit within the Justice Department, and evaded herman that something

440
00:28:30,720 --> 00:28:32,640
Speaker 4: should be referred to the bar, that they would then

441
00:28:32,720 --> 00:28:36,080
Speaker 4: do so. But wouldn't, you know, refer all complaints to

442
00:28:36,119 --> 00:28:37,800
Speaker 4: the bar if they don't think that they have merit.

443
00:28:38,520 --> 00:28:40,640
Speaker 4: It was interesting. I hadn't heard that from him before,

444
00:28:40,680 --> 00:28:42,360
Speaker 4: so I think that was an interesting thing to note

445
00:28:42,640 --> 00:28:45,200
Speaker 4: in something to watch going forward. How they implement it.

446
00:28:45,840 --> 00:28:50,800
Speaker 2: Bar associations handle the disciplinary proceedings for lawyers and the

447
00:28:50,840 --> 00:28:53,200
Speaker 2: Justice Department has no part in that. So it makes

448
00:28:53,240 --> 00:28:55,840
Speaker 2: almost no sense to me that the Justice Department would

449
00:28:55,840 --> 00:28:59,600
Speaker 2: suddenly start doing that, especially with regard to complaints against

450
00:28:59,640 --> 00:29:00,640
Speaker 2: its own lawyers.

451
00:29:01,480 --> 00:29:03,800
Speaker 4: I think we're likely to see concerns like that raise

452
00:29:04,000 --> 00:29:05,880
Speaker 4: if in when a process like this is rolled out,

453
00:29:06,680 --> 00:29:08,760
Speaker 4: and I you know, certainly I think it's worth you know,

454
00:29:08,800 --> 00:29:10,960
Speaker 4: hearing from the bar associations. I'll be curious if they

455
00:29:11,360 --> 00:29:13,640
Speaker 4: speak out about whether they see this as any kind

456
00:29:13,680 --> 00:29:15,040
Speaker 4: of use of pation of their authority.

457
00:29:15,360 --> 00:29:19,200
Speaker 2: He called for young lawyers who are hungry and thirsty

458
00:29:19,280 --> 00:29:22,880
Speaker 2: to join the Justice Department and the fight. The Justice

459
00:29:22,920 --> 00:29:28,200
Speaker 2: Department has lost a lot of attorneys since Trump took office.

460
00:29:28,240 --> 00:29:29,960
Speaker 2: Tell us about that.

461
00:29:29,960 --> 00:29:32,680
Speaker 4: That's true, and we've seen that really throughout the federal government.

462
00:29:32,760 --> 00:29:34,880
Speaker 4: I mean, of course, there were a couple of offers

463
00:29:34,920 --> 00:29:37,480
Speaker 4: for lawyers to take a deferred resignation where they were

464
00:29:37,600 --> 00:29:40,560
Speaker 4: paid but on leave through the end of last fiscal year,

465
00:29:40,600 --> 00:29:43,760
Speaker 4: which ended at the end of September. And so you know,

466
00:29:43,840 --> 00:29:46,760
Speaker 4: many many people think it was over over four thousand.

467
00:29:47,160 --> 00:29:49,560
Speaker 4: I think maybe even more than that. That was a

468
00:29:49,600 --> 00:29:51,960
Speaker 4: tally from a couple of months ago. Thousands of lawyers

469
00:29:52,000 --> 00:29:54,400
Speaker 4: took that deal. And we've also seen people, you know,

470
00:29:54,480 --> 00:29:57,840
Speaker 4: leaving for other jobs. So we've you know, at the

471
00:29:57,880 --> 00:30:00,480
Speaker 4: Civil Rights Division, I know, when we've spoken about past

472
00:30:01,480 --> 00:30:03,920
Speaker 4: that's one where we really saw a major priority shift

473
00:30:04,360 --> 00:30:09,320
Speaker 4: from away from more traditional civil rights areas toward more

474
00:30:09,320 --> 00:30:12,360
Speaker 4: conservative priorities like gun rights, for example. So that's a

475
00:30:12,400 --> 00:30:14,600
Speaker 4: division that saw a huge amount of attrition, both through

476
00:30:14,640 --> 00:30:17,080
Speaker 4: the different resignation offer but also through people just trying

477
00:30:17,080 --> 00:30:19,280
Speaker 4: to get different jobs. And so that's just something we've

478
00:30:19,280 --> 00:30:22,040
Speaker 4: seen throughout the Justice Department as lawyers maybe don't feel

479
00:30:22,040 --> 00:30:24,520
Speaker 4: like they want to be doing this work anymore. We've

480
00:30:24,520 --> 00:30:26,920
Speaker 4: certainly seen the administration has been somewhat hostile to the

481
00:30:26,920 --> 00:30:29,960
Speaker 4: federal workforce, and that's just true across the government. So yes,

482
00:30:30,040 --> 00:30:33,000
Speaker 4: that's absolutely the Justice Department has been, you know, very

483
00:30:33,080 --> 00:30:36,040
Speaker 4: much part of that of that movement, and you know,

484
00:30:36,200 --> 00:30:38,560
Speaker 4: I think the administration is very much looking to the

485
00:30:38,600 --> 00:30:39,640
Speaker 4: staff backup.

486
00:30:40,520 --> 00:30:43,880
Speaker 2: This attack on judges. Do you see it as part

487
00:30:44,040 --> 00:30:49,320
Speaker 2: of the Justice Department's approach now because you had and

488
00:30:49,360 --> 00:30:53,800
Speaker 2: you wrote about a former Justice Apartment official who criticized

489
00:30:53,880 --> 00:30:59,360
Speaker 2: Democratic appointed federal trial judges who ruled against the Trump administration.

490
00:30:59,040 --> 00:31:01,520
Speaker 4: That's right. Chad myself also spoke at the Federalist Society

491
00:31:01,560 --> 00:31:05,040
Speaker 4: had mentioned and made somewhat similar fiary remarks about his

492
00:31:05,640 --> 00:31:09,200
Speaker 4: complaints and grievances about federal judges who he also sees

493
00:31:09,240 --> 00:31:13,800
Speaker 4: as democratic appointees and ruling against the administration and then

494
00:31:13,920 --> 00:31:16,920
Speaker 4: at times being reversed at higher court. And yes, I

495
00:31:16,920 --> 00:31:18,480
Speaker 4: do think this is kind of part and parcel of

496
00:31:18,520 --> 00:31:21,600
Speaker 4: an approach that we're seeing really across the administration that

497
00:31:21,640 --> 00:31:23,360
Speaker 4: these many of these remarks sort of at a time

498
00:31:23,400 --> 00:31:27,160
Speaker 4: of significant tension between the administration and the judiciary. I mean,

499
00:31:27,200 --> 00:31:30,360
Speaker 4: we've seen Trump and other officials and allies have really

500
00:31:30,400 --> 00:31:32,800
Speaker 4: made a habit of putting judges and even in some

501
00:31:32,840 --> 00:31:36,720
Speaker 4: cases their family members on blast when court rulings just

502
00:31:36,720 --> 00:31:40,600
Speaker 4: don't go the administration's way. We've seen judges gold government

503
00:31:40,640 --> 00:31:43,000
Speaker 4: lawyers for what they say is making false or misleading

504
00:31:43,000 --> 00:31:45,840
Speaker 4: statements in court or suggesting that maybe they're not fully

505
00:31:45,880 --> 00:31:49,040
Speaker 4: complying with their court orders. So we're really just seeing

506
00:31:49,080 --> 00:31:52,200
Speaker 4: a lot of distension as the administration is really expanding

507
00:31:52,560 --> 00:31:55,280
Speaker 4: executive power and kind of pushing the boundaries, and judges

508
00:31:55,360 --> 00:31:59,000
Speaker 4: are ruling against that effort. That's just created a lot

509
00:31:59,040 --> 00:32:01,959
Speaker 4: of bad blas I guess I could say, sort of

510
00:32:02,520 --> 00:32:06,000
Speaker 4: certainly from the administration towards the judiciary, and maybe arguably

511
00:32:06,000 --> 00:32:06,520
Speaker 4: both ways.

512
00:32:07,000 --> 00:32:10,840
Speaker 2: Since the beginning of the Trump administration, threats against judges

513
00:32:10,960 --> 00:32:15,080
Speaker 2: have skyrocketed, and there seems to be no effort on

514
00:32:15,200 --> 00:32:20,440
Speaker 2: the part of administration officials to dial down the criticism

515
00:32:20,600 --> 00:32:24,360
Speaker 2: of judges. In fact, they seem to be amping it up,

516
00:32:24,640 --> 00:32:27,280
Speaker 2: and it's hard to ignore that as a possible cause

517
00:32:27,480 --> 00:32:29,920
Speaker 2: of the rising threats against judges.

518
00:32:31,080 --> 00:32:33,120
Speaker 4: That's certainly a criticism that you might hear when you

519
00:32:33,200 --> 00:32:36,480
Speaker 4: hear officials day things like we're at war. Of course,

520
00:32:36,520 --> 00:32:39,400
Speaker 4: if you reach out to the Justice Department, they will

521
00:32:39,440 --> 00:32:41,120
Speaker 4: tell you that this is a top priority for them

522
00:32:41,160 --> 00:32:44,000
Speaker 4: to address threats against judges. But you're correct that they

523
00:32:44,000 --> 00:32:48,680
Speaker 4: are increasing. We've seen hundreds last fiscal year of threats

524
00:32:48,680 --> 00:32:51,480
Speaker 4: against judges, higher than the year prior, and so this

525
00:32:51,640 --> 00:32:54,560
Speaker 4: is I think a cause of significant concern really across

526
00:32:54,600 --> 00:32:57,800
Speaker 4: the judiciary that judges are being subjected to this. And

527
00:32:57,880 --> 00:33:01,000
Speaker 4: I think many people would say that public officials, you know,

528
00:33:01,280 --> 00:33:04,600
Speaker 4: publicly criticizing rulings, criticizing the judge by name, and really

529
00:33:04,640 --> 00:33:08,440
Speaker 4: specifically not necessarily criticizing their legal reasoning, but really going

530
00:33:08,480 --> 00:33:11,320
Speaker 4: after the judge in more personal capacities, as being biased,

531
00:33:11,680 --> 00:33:14,520
Speaker 4: as having the cards of stacked against the administration. Making

532
00:33:14,520 --> 00:33:17,640
Speaker 4: claims like that might put more of a target on judges.

533
00:33:17,360 --> 00:33:20,240
Speaker 2: Back, going back to the Supreme Court for a moment,

534
00:33:20,560 --> 00:33:25,160
Speaker 2: some federal judges have been frustrated with having to interpret

535
00:33:25,200 --> 00:33:29,640
Speaker 2: the Supreme Court decisions on the emergency docket where there

536
00:33:29,680 --> 00:33:34,000
Speaker 2: is no explanation of why the court reached that conclusion.

537
00:33:34,720 --> 00:33:36,920
Speaker 4: That's right. There's kind of even another tension within the

538
00:33:37,000 --> 00:33:40,200
Speaker 4: judiciary that we're seeing between the lower court and the

539
00:33:40,320 --> 00:33:43,640
Speaker 4: Supreme Court, where we're seeing the Supreme Court handling these

540
00:33:43,720 --> 00:33:47,040
Speaker 4: challenges to major comp administration policies at early stages in

541
00:33:47,040 --> 00:33:51,040
Speaker 4: the litigation, and they're putting out emergency orders pausing lower

542
00:33:51,040 --> 00:33:53,320
Speaker 4: court rulings that had blocked the policies, thus allowing the

543
00:33:53,320 --> 00:33:57,080
Speaker 4: policies to move forward. Obviously, we saw administration officials, as

544
00:33:57,080 --> 00:34:00,560
Speaker 4: I mentioned earlier, really celebrating those emergencies state orders from

545
00:34:00,600 --> 00:34:02,920
Speaker 4: the Supreme Court as big wins for them, and I

546
00:34:02,920 --> 00:34:04,920
Speaker 4: think it's also just been a challenge for lower courts

547
00:34:04,920 --> 00:34:07,160
Speaker 4: to then maybe sometimes get the case back on remand

548
00:34:07,480 --> 00:34:09,239
Speaker 4: and have to kind of decide how to approach it

549
00:34:09,280 --> 00:34:11,560
Speaker 4: when all they've got is this one page emergency order

550
00:34:11,600 --> 00:34:14,280
Speaker 4: from the Supreme Court that doesn't really explain its reasoning.

551
00:34:14,360 --> 00:34:17,479
Speaker 4: And we've seen a couple instances where judges have even

552
00:34:17,520 --> 00:34:20,520
Speaker 4: expressed some frustration about that and the emergency docket in

553
00:34:20,520 --> 00:34:23,040
Speaker 4: their written decisions, where they're saying, you know, I had

554
00:34:23,040 --> 00:34:24,759
Speaker 4: a case that's a little similar to a case the

555
00:34:24,800 --> 00:34:27,960
Speaker 4: Supreme Court had, but the Supreme Court didn't explain why

556
00:34:27,960 --> 00:34:29,680
Speaker 4: they made the decision that they did in that case.

557
00:34:29,760 --> 00:34:31,920
Speaker 4: So I'm not sure how to handle it in this one.

558
00:34:32,040 --> 00:34:32,759
Speaker 4: Are these the same?

559
00:34:32,840 --> 00:34:32,880
Speaker 1: Like?

560
00:34:32,920 --> 00:34:34,680
Speaker 4: How do I apply that reasoning? So I think that's

561
00:34:34,680 --> 00:34:37,080
Speaker 4: certainly a bit of a challenge for the lower courts,

562
00:34:37,120 --> 00:34:38,200
Speaker 4: and it's causing consternation.

563
00:34:38,760 --> 00:34:41,399
Speaker 2: I thought it was very interesting. Now there have been

564
00:34:41,520 --> 00:34:45,160
Speaker 2: a lot of accusations that the Trump administration has weaponized

565
00:34:45,600 --> 00:34:50,200
Speaker 2: the Justice Department, and you look at the prosecutions against

566
00:34:50,680 --> 00:34:56,080
Speaker 2: Trump's perceived enemies, FBI Director James Comy, New York Attorney

567
00:34:56,120 --> 00:34:59,399
Speaker 2: General Letitia James. How did he defend against that?

568
00:35:00,520 --> 00:35:04,440
Speaker 4: He really defended himself in the administration against claims of politicization.

569
00:35:05,040 --> 00:35:07,640
Speaker 4: He really took the time to rattle off charges that

570
00:35:07,640 --> 00:35:10,760
Speaker 4: were filed under the Biden administration against Donald Trump himself

571
00:35:11,040 --> 00:35:13,319
Speaker 4: and really said that he saw those as politicized. And

572
00:35:13,360 --> 00:35:15,760
Speaker 4: you know the fact that there were multiple charges across

573
00:35:15,800 --> 00:35:18,520
Speaker 4: the country. He specifically said, you know, we have rolled

574
00:35:18,560 --> 00:35:20,799
Speaker 4: back investigations that we see as being brought for the

575
00:35:20,800 --> 00:35:24,160
Speaker 4: wrong reasons, and instead we're prosecuting the right people for

576
00:35:24,239 --> 00:35:26,919
Speaker 4: the rightly reasons. And he even said, sort of citing

577
00:35:26,920 --> 00:35:29,680
Speaker 4: those charges under the past administration, that when he reads

578
00:35:29,680 --> 00:35:32,160
Speaker 4: weaponization claims, he says, he feels like he's being quote

579
00:35:32,200 --> 00:35:34,600
Speaker 4: gas lit because he just feels like it was the

580
00:35:34,640 --> 00:35:37,359
Speaker 4: Trump administration that was the target, or I should say

581
00:35:37,360 --> 00:35:40,279
Speaker 4: Trump administration officials during the Biden administration who were the

582
00:35:40,320 --> 00:35:43,279
Speaker 4: target of a politicized DOJ And that's something we've heard

583
00:35:43,320 --> 00:35:47,040
Speaker 4: from other right wing officials as well, when they say

584
00:35:47,080 --> 00:35:49,600
Speaker 4: that they see its politicization as being during the last

585
00:35:49,600 --> 00:35:52,040
Speaker 4: administration and they're not doing that. So I think that's

586
00:35:52,120 --> 00:35:54,400
Speaker 4: kind of a common criticism that we have heard before

587
00:35:54,520 --> 00:35:58,239
Speaker 4: from that side. But yes, I mean, you're corrected to

588
00:35:58,280 --> 00:36:00,080
Speaker 4: note that a lot of critics have pointed to a

589
00:36:00,120 --> 00:36:02,280
Speaker 4: lot of the ways that Trump has really directly seems

590
00:36:02,280 --> 00:36:04,759
Speaker 4: to be communicating with the Justice Department. There's being a

591
00:36:04,760 --> 00:36:06,840
Speaker 4: bit of a difference that we haven't seen in the past.

592
00:36:06,840 --> 00:36:10,080
Speaker 4: When he specifically addressed jo Jay and said, hey, can

593
00:36:10,120 --> 00:36:12,600
Speaker 4: you please look into these people, typically we've seen a

594
00:36:12,640 --> 00:36:16,719
Speaker 4: little bit more Drug Department is supposed to historically has

595
00:36:16,719 --> 00:36:17,719
Speaker 4: acted more independently.

596
00:36:18,080 --> 00:36:22,400
Speaker 2: Yeah, the criticism is that in this second administration there's

597
00:36:22,440 --> 00:36:26,160
Speaker 2: no daylight between the White House and the Justice Department,

598
00:36:26,920 --> 00:36:30,760
Speaker 2: and perhaps in the Komi and James cases, we'll see

599
00:36:30,800 --> 00:36:35,720
Speaker 2: what judges think of the president's apparent direction on truth

600
00:36:35,840 --> 00:36:39,840
Speaker 2: social to the Attorney General to bring cases against his

601
00:36:40,480 --> 00:36:45,080
Speaker 2: perceived enemies. Thanks so much, Suzanne. That's Bloomberg Law reporter

602
00:36:45,200 --> 00:36:48,279
Speaker 2: Suzanne Monyac, and that's it for this edition of the

603
00:36:48,280 --> 00:36:51,240
Speaker 2: Bloomberg Law Show. Remember you can always get the latest

604
00:36:51,280 --> 00:36:54,399
Speaker 2: legal news on our Bloomberg Law Podcast. You can find

605
00:36:54,440 --> 00:36:59,000
Speaker 2: them on Apple Podcasts, Spotify, and at www dot Bloomberg

606
00:36:59,080 --> 00:37:02,839
Speaker 2: dot com, slash podcast, Slash Law, and remember to tune

607
00:37:02,880 --> 00:37:06,080
Speaker 2: into The Bloomberg Law Show every weeknight at ten pm

608
00:37:06,160 --> 00:37:09,719
Speaker 2: Wall Street Time. I'm June Grosso, and you're listening to

609
00:37:09,760 --> 00:37:10,320
Speaker 2: Bloomberg