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Weekend Law: Powell Probe Dropped, SCOTUS & Religion in Schools · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:09
Speaker 2: About a month ago, the US Attorney for DC, Janine Pierro,
0:13
Speaker 2: professed that she didn't care that Senator Tom Tillis was
0:17
Speaker 2: opposing her controversial criminal investigation into Federal Reserve Chair Jerome Powell.
0:23
Speaker 2: She was moving forward.
0:25
Speaker 3: You know, honestly, I don't know, and I don't care.
0:28
Speaker 3: And I'll tell you why. I am in a legal lane.
0:33
Speaker 3: All of the rest is white noise. I don't care
0:36
Speaker 3: what they say. I have a job. I have the
0:41
Speaker 3: ability to go into a grand jury. There are questions
0:44
Speaker 3: that the American public and people in DC are entitled
0:48
Speaker 3: to know where a billion dollars has gone.
0:51
Speaker 2: And on Wednesday, Piero doubled down and again vowed to
0:55
Speaker 2: continue the investigation into building renovation cost over by the FED,
1:01
Speaker 2: and to appeal a judge's order quashing her two grand
1:05
Speaker 2: jury subpoenas.
1:06
Speaker 4: This investigation continues.
1:09
Speaker 3: I am in the legal lane.
1:10
Speaker 4: There are others who are in the political lane. I
1:13
Speaker 4: don't intersect those two lanes.
1:16
Speaker 3: I am going forward.
1:17
Speaker 4: We are appealing the decision of Judge Bosburg.
1:21
Speaker 2: But then on Friday, in a stunning reversal. Pierro said
1:25
Speaker 2: in a social media post that her office was closing
1:28
Speaker 2: the investigation on Powell, but that quote this morning, the
1:33
Speaker 2: Inspector General for the Federal Reserve has been asked to
1:36
Speaker 2: scrutinize the building costs overruns. In fact, the IG's investigation
1:42
Speaker 2: began last year. Does the end of Piero's investigation clear
1:47
Speaker 2: the way for the confirmation of Kevin Walsh as FED chair?
1:51
Speaker 2: Even though Piero added in her post quote note well, however,
1:56
Speaker 2: that I will not hesitate to restart a criminal investigation
2:00
Speaker 2: should the facts warn't doing so. Joining me is Elliott
2:04
Speaker 2: Stein Bloomberg Intelligence Senior litigation analyst, Elliott What do you
2:09
Speaker 2: make of Piro's abrupt reversal. Is it due to the
2:13
Speaker 2: lack of evidence or pressure to clear the way for
2:16
Speaker 2: Walsh's confirmation?
2:18
Speaker 1: Probably a combination. I mean, you know, the whole point
2:22
Speaker 1: of Judge Bosberg's opinion quashing the subpoenas was that, you know,
2:25
Speaker 1: there's very little evidence of a crime versus a lot
2:28
Speaker 1: of evidence, that this is all a pretext to go
2:30
Speaker 1: after Powell for nonlawering interest rates. But then you also
2:34
Speaker 1: have this whole Senator Tillis dynamic, and he has been
2:38
Speaker 1: very forceful in saying that he's not going to allow
2:41
Speaker 1: Warsh to be confirmed until the investigation is wrapped up.
2:45
Speaker 1: And you know, they're coming up on May fifteenth deadline,
2:49
Speaker 1: which is when Chair Powell's term ends as Federal Reserve Chair,
2:55
Speaker 1: and so I think they want to move things along.
2:57
Speaker 1: They want to get Warsh in there, and this is
3:00
Speaker 1: sort of the quickest path to doing that. Although you know,
3:04
Speaker 1: Jenny and Piro did leave an opening for opening the
3:07
Speaker 1: investigation down the road. So it's unclear right now if
3:11
Speaker 1: this is going to be enough for Senator Tillis. I
3:14
Speaker 1: suspect it probably is, But if I'm Jerome Powell, I
3:18
Speaker 1: would want a little more assurance in the form of
3:20
Speaker 1: perhaps an immunity agreement of some sort.
3:23
Speaker 2: Piero appeared to be trying to gloss over the implications
3:27
Speaker 2: of dropping the investigation by saying that the Inspector General
3:31
Speaker 2: was now going to be the one scrutinizing the cost
3:34
Speaker 2: overruns end quote. I expect a comprehensive report in short
3:39
Speaker 2: order and am confident the outcome will assist in resolving
3:44
Speaker 2: once and for all the questions that led this office
3:47
Speaker 2: to issue subpoenas, but in fact, the IG has already
3:51
Speaker 2: reviewed the project twice and started another review last year
3:55
Speaker 2: because Powell had requested it. So does this seem like
3:59
Speaker 2: sort of a dead end, right?
4:02
Speaker 1: But yeah, I mean it was sort of where we
4:04
Speaker 1: were before the investigation started, right that it's still with
4:07
Speaker 1: the Inspector General and that's what they do. And you know,
4:11
Speaker 1: it sounds like Jennine Piro is sort of trying to
4:15
Speaker 1: appease two camps here right on the ones, she obviously
4:18
Speaker 1: reports to President Trump, who has been adamant about going
4:22
Speaker 1: after Jerome Powell for several years now, and he wants
4:24
Speaker 1: him out of the board completely. On the other hand,
4:27
Speaker 1: she needs to satisfy Senator Tillis, who has said, you know,
4:31
Speaker 1: he's going to block the confirmation of Kevin Warrish until
4:34
Speaker 1: the investigation is wrapped up. So you know, her tweet
4:37
Speaker 1: sort of seems to try to navigate right through both
4:40
Speaker 1: those sides in that narrow passageway, and we'll see if
4:43
Speaker 1: it's enough. I don't think we've heard anything from Senator
4:45
Speaker 1: Tillis yet, but I suspect maybe we will soon.
4:47
Speaker 2: Let's back up for a moment, Elliott, what is she
4:50
Speaker 2: investigating the cost overruns and possible perjury by Powell.
4:56
Speaker 1: Right, those are the two things. I think the testimony
5:00
Speaker 1: to me sort of seemed to be more of the
5:02
Speaker 1: impetus for her investigation, because the Inspector General is already
5:06
Speaker 1: investigating the cost overruns for one. And you know, they
5:10
Speaker 1: tried to accuse Powell of essentially lying in his testimony
5:15
Speaker 1: to the Senate last summer. But you know, it seemed
5:19
Speaker 1: very nitpicky and sort of a matter of semantics. Nothing.
5:23
Speaker 1: Approaching a federal crime.
5:25
Speaker 2: And proving perjury is not easy. You have to prove
5:28
Speaker 2: that someone knowingly and willfully made a false statement under
5:33
Speaker 2: oath about a material matter.
5:35
Speaker 1: Yeah, it's very hard to prove intent in one of
5:38
Speaker 1: these types of cases.
5:39
Speaker 2: And we know that as late as a month ago,
5:42
Speaker 2: Piro's office essentially had no evidence that Powell had committed
5:47
Speaker 2: a crime because during a closed door hearing with Judge Boseburg,
5:52
Speaker 2: the judge who quashed their subpoenas, they acknowledged they had
5:56
Speaker 2: no evidence but said they wanted to go ahead with
5:59
Speaker 2: the investigation anyway.
6:01
Speaker 1: Right, I mean, you know, in most cases that's sort
6:05
Speaker 1: of the purpose for the subpoena, right when you don't
6:08
Speaker 1: have all these other things going on that suggests it's
6:11
Speaker 1: a pretext.
6:12
Speaker 4: Right.
6:12
Speaker 1: If you have, you know, reasonable suspicion or probable cause
6:16
Speaker 1: that a crime was committed, then you issue subpoenas to
6:19
Speaker 1: develop the evidence further. But yet to your point, the
6:23
Speaker 1: judge found, you know, not only is there no evidence yet,
6:26
Speaker 1: and not only did the Justice Department concede that you
6:29
Speaker 1: have to balance that with the other side of the
6:33
Speaker 1: equation that the subpoenas were issued for the purpose of
6:35
Speaker 1: harassing your own Powell because he's not lowering interest rates
6:39
Speaker 1: fast enough. And the evidence of that was overwhelming, according
6:43
Speaker 1: to the judge.
6:44
Speaker 2: Yeah, Judge Boseburg said there was no evidence whatsoever that
6:48
Speaker 2: Powell had committed any crime, but there was a mountain
6:51
Speaker 2: of evidence that the investigation was intended to pressure Powell
6:56
Speaker 2: to lower rates or resign. And this isn't the first
6:59
Speaker 2: time that Ziro's office has had trouble moving forward on
7:03
Speaker 2: an indictment. Several times DC grand juries have refused to indict,
7:08
Speaker 2: disproving the old adage that a prosecutor can get a
7:12
Speaker 2: grand jury to indict a ham sandwich. They couldn't get
7:15
Speaker 2: a grand jury to indict the guy who threw the
7:18
Speaker 2: salami sandwich at an officer. And there are other instances,
7:23
Speaker 2: including a federal grand jury unanimously rejecting charges against six
7:29
Speaker 2: members of Congress for making that video reminding the military
7:33
Speaker 2: that they don't have to follow illegal.
7:35
Speaker 1: Orders, right, And it's not just her in DC, I
7:39
Speaker 1: think it was also in the Eastern District of Virginia.
7:41
Speaker 1: You had subpoenas issued and investigations opened against Tisha James
7:46
Speaker 1: James Comey. Those were also essentially quest or the grand
7:52
Speaker 1: jury's refused to indict. And you know this case too
7:56
Speaker 1: against their own Powell. If it had proceeded, it looked
7:59
Speaker 1: like it was on a to also not lead to
8:02
Speaker 1: an indictment. So it does seem that, you know, they
8:05
Speaker 1: are bringing weak cases. They're obviously going after President Trump's
8:11
Speaker 1: perceived political enemies, and you know, if that's a justification,
8:16
Speaker 1: it's an explanation for why there's not evidence of a crime.
8:20
Speaker 2: What also strikes me about this is that Piero dropped
8:24
Speaker 2: the investigation by social media post, but she held a
8:29
Speaker 2: press conference to announce that Judge Bosberg had quashed the subpoenas.
8:34
Speaker 2: A lost Many people would not want to broadcast.
8:37
Speaker 1: I remember watching that press conference, and at the time
8:40
Speaker 1: it really felt very performative. It felt like she was defensive,
8:44
Speaker 1: and you know, I'm sure some of it was knowing
8:48
Speaker 1: that President Trump was watching and that she wanted him
8:51
Speaker 1: to know that she was continuing to pursue this case
8:55
Speaker 1: aggressively against Jerome Powell, who the President you know, is
8:59
Speaker 1: not happy with, hasn't been happy with for a while.
9:01
Speaker 1: But what's interesting is they filed a motion to reconsider
9:05
Speaker 1: that opinion. They lost that on April third. They haven't
9:10
Speaker 1: appealed those decisions to the DC's circuit at all, and
9:14
Speaker 1: you would think that if they really wanted to move
9:17
Speaker 1: the case along and continue to prosecute it, they would
9:20
Speaker 1: have done that. We haven't seen that. The deadline is
9:24
Speaker 1: two months from that April third date where the motion
9:26
Speaker 1: to reconsider was denied. I mean, they do have until
9:29
Speaker 1: June third. Obviously, we don't expect that to happen now
9:32
Speaker 1: that they're dropping the probe, but it may be a
9:34
Speaker 1: date that gives Jerome Powell some comfort. If it comes
9:38
Speaker 1: and goes and it results in no appeal being filed,
9:41
Speaker 1: it may give him some comfort that the investigation really
9:44
Speaker 1: is being dropped. Because they're not going to be able
9:47
Speaker 1: to really revive those subpoenas. I suppose in theory they
9:50
Speaker 1: could issue new subpoenas that cover different subject matter and
9:54
Speaker 1: different terrain, but it's hard to envision what that looks like.
9:57
Speaker 1: But I mean, the real question of people that you
10:01
Speaker 1: really need to get inside the heads of at this
10:03
Speaker 1: point right now are Senator Tillis and her own Powell
10:06
Speaker 1: and whether Janin Piro's tweets are enough to give them
10:10
Speaker 1: assurance that the investigation is not going to be relaunched
10:14
Speaker 1: at some point down the road after Kevin Watris gets
10:17
Speaker 1: confirmed in the coming weeks.
10:18
Speaker 2: And in other FED news, we are still waiting for
10:22
Speaker 2: the Supreme Court's decision on President Trump's attempts to fire
10:27
Speaker 2: Fed Reserve Governor Lisa Cook over unproven mortgage fraud allegations.
10:33
Speaker 2: Those oral arguments were in January, and every time there's
10:36
Speaker 2: an announcement of decisions by the Supreme Court, we keep
10:40
Speaker 2: expecting that the Cook decision will be among them.
10:44
Speaker 1: Yeah, exactly. I was on the soccer fields down in
10:45
Speaker 1: North Carolina this last Friday at ten am when it
10:48
Speaker 1: was a Supreme colurid opinion date, and I have one
10:51
Speaker 1: eye on my daughter plan I have one eye on
10:52
Speaker 1: my phone, and I was just so relieved when it
10:55
Speaker 1: was not that decision. I think one of the reasons
10:58
Speaker 1: that may be taking longer than people anticipated is that
11:02
Speaker 1: it's sort of wrapped up with the Slaughter case Rebecca
11:06
Speaker 1: Slaughter if he recalls the FTC commissioner who also challenged
11:09
Speaker 1: her termination, and the cases are all sort of wrapped
11:12
Speaker 1: up together because the Supreme Court has indicated that even
11:16
Speaker 1: though the President likely has the authority to remove most
11:21
Speaker 1: agency commissioners at will, and that four cause removal restrictions
11:25
Speaker 1: as to them is unconstitutional, the Federal Reserve is situated
11:29
Speaker 1: differently because it's sort of quasi private. It's not really
11:32
Speaker 1: part of the executive branch. And as a result, the
11:34
Speaker 1: four cause removal restriction in the Federal Reserve Act is
11:37
Speaker 1: likely constitutional. The only question is what does it actually entail.
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Speaker 2: Maybe next Supreme Court opinion day, the Cook decision will
11:44
Speaker 2: come out. Thanks so much for joining me today, Elliott.
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Speaker 2: That's Bloomberg Intelligence Senior litigation analyst Elliott Stein coming up next,
11:53
Speaker 2: Revelations from behind the Curtain at the Supreme Court. I'm
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Speaker 2: June Grosso and this is Bloomberg. Chief Justice John Roberts
12:03
Speaker 2: has long cultivated an image of the Supreme Court as
12:07
Speaker 2: an institution above politics, nine justices who reached their decisions
12:13
Speaker 2: based on the law alone.
12:15
Speaker 5: Well, I think the important thing to understand is that
12:18
Speaker 5: there are three branches of government, and two of them
12:20
Speaker 5: are political.
12:21
Speaker 6: And if you don't like.
12:22
Speaker 5: What the Congress is doing, you're congressman. You can throw
12:25
Speaker 5: them out of office. If you don't like what the
12:27
Speaker 5: president is doing, can throw him out of office. If
12:30
Speaker 5: you don't like what I'm doing, it's just too bad.
12:33
Speaker 6: And now most people would.
12:35
Speaker 5: Say, how can that be? You do the cases are
12:39
Speaker 5: pretty important and you need to understand. Well, it's because
12:41
Speaker 5: the Framers didn't want the courts to be making political decisions.
12:45
Speaker 2: And Roberts famously compare justices to umpires at his confirmation
12:51
Speaker 2: hearings more than twenty years ago.
12:53
Speaker 6: Judges are like umpires. Umpires don't make the rules, they
12:57
Speaker 6: apply them. The role of an and a judge is critical.
13:02
Speaker 6: They make sure everybody plays by the rules, but it
13:06
Speaker 6: is a limited role. Nobody ever went to a ballgame
13:09
Speaker 6: to see the umpire, but.
13:11
Speaker 2: The New York Times has published leaked confidential memos between
13:15
Speaker 2: the justices, and they reveal a very different side of Roberts,
13:20
Speaker 2: certainly not an umpire calling balls and strikes, but rather
13:25
Speaker 2: the driving force to block President Obama's signature environmental policy,
13:31
Speaker 2: pushing the decision through in just five days, without oral arguments,
13:36
Speaker 2: without briefings, and without input from lower court decisions. Why
13:41
Speaker 2: because Obama's power plan, in Robert's words, was quote the
13:46
Speaker 2: most expensive regulation ever imposed on the power sector. And
13:51
Speaker 2: so on February ninth of twenty sixteen, in a five
13:55
Speaker 2: to four vote along partisan lines, the Justice Is issued
13:59
Speaker 2: a one pack paragraph ruling halting Obama's Clean Power Plan.
14:04
Speaker 2: It was just the beginning of the Court's emergency or
14:07
Speaker 2: shadow docket that has been repeatedly used to move President
14:12
Speaker 2: Trump's agenda forward. My guest is an expert in constitutional law,
14:17
Speaker 2: Harold Krant, a professor at the Chicago Kent College of Law.
14:21
Speaker 2: How So, The New York Times has published these until
14:24
Speaker 2: now secret memos about the five days before the Supreme
14:28
Speaker 2: Court issued an order blocking President Obama's Clean Power Plan.
14:34
Speaker 2: Tell us what happened.
14:36
Speaker 7: So, the Court never blocked the power plant on the merits,
14:40
Speaker 7: but rather used its power to stop the action before
14:44
Speaker 7: they could even hear the case, and so they deployed
14:47
Speaker 7: their power to basically protect individuals in the United States
14:52
Speaker 7: from what they saw is overreaching by the Obama administration.
14:56
Speaker 4: So this is an.
14:57
Speaker 7: Overtly political move because they didn't like the power plan,
15:01
Speaker 7: and the memos evinced the fact that they thought that
15:04
Speaker 7: there shouldn't be this much of a drain on the
15:08
Speaker 7: economy in order to protect the environment. And so the
15:13
Speaker 7: way it reads is that the Supreme Court was overtly
15:16
Speaker 7: political in deciding to resolve this case not on the merits,
15:20
Speaker 7: but rather simply on the basis of its emergency docket,
15:25
Speaker 7: thereby stopping the plant before it could be effectuated.
15:28
Speaker 2: So this was pushed through in five days, and some
15:32
Speaker 2: of the justices were in Europe, so it was all
15:35
Speaker 2: done by exchanging memos. And from your reading of those memos,
15:41
Speaker 2: did it seem like the Chief Justice was the one
15:44
Speaker 2: really pushing it through.
15:46
Speaker 7: And what astonishes me is that we know that for
15:49
Speaker 7: years the Chief Justice stood and said, integrity of the
15:53
Speaker 7: Court is my mission. This is the most important thing
15:55
Speaker 7: to me. So we have stature. Yet it was the
15:58
Speaker 7: Chief who decided to use the power of the Supreme
16:01
Speaker 7: Court to try to attain his political ends. So this,
16:05
Speaker 7: to me is what is so amazing, is that while
16:08
Speaker 7: the Chief seemed to have this public persona of respect
16:12
Speaker 7: and integrity of the court, he was the one that
16:14
Speaker 7: instigated the unorthodox use of the court in order to
16:19
Speaker 7: accomplish a political result.
16:21
Speaker 2: Did it seem as if some of the justices didn't recognize,
16:26
Speaker 2: you know, the importance of what was happening here.
16:28
Speaker 7: In retrospect, I think we can all tell this is
16:30
Speaker 7: the start of the aggressive use by the Rabbers Court
16:33
Speaker 7: of the shadow docket. But the justices at the time
16:36
Speaker 7: didn't know that. They thought maybe this is a one off.
16:39
Speaker 7: That the Court was not in session. They were in
16:42
Speaker 7: various places around the world, and so they could have
16:45
Speaker 7: said this is a one off, a unique response that
16:49
Speaker 7: wouldn't create any kind of precedent.
16:51
Speaker 4: That's what it seemed to me from reading the memos.
16:53
Speaker 7: Obviously, now with the lens of history, we look back
16:56
Speaker 7: and say we can see a linear progression. The use
16:59
Speaker 7: of the power the Supreme Court from various political ends
17:02
Speaker 7: has become much more common, but at that time it
17:05
Speaker 7: was rare, and I don't think the justices realized what
17:08
Speaker 7: a precedent this could create.
17:10
Speaker 2: So the Chief Justice said that this was the most
17:14
Speaker 2: expensive regulation ever imposed on the power sector, too big, costly,
17:19
Speaker 2: and consequential for the Court not to act immediately. Yet
17:22
Speaker 2: no justice, not a liberal, not a conservative, ever mentioned
17:27
Speaker 2: the dangers on the opposite side of climate change.
17:31
Speaker 4: There's no discussion of climate change.
17:32
Speaker 7: There was no discussion of letting the challenges to the
17:35
Speaker 7: regulation play out in court. This wasn't a discussion of
17:39
Speaker 7: the usual legality of an administrative action. This was a
17:44
Speaker 7: political reaction to the Obama administration saying this is too extensive,
17:50
Speaker 7: too much, and no consideration of the equities on the
17:53
Speaker 7: other side.
17:54
Speaker 4: It's astonishing, the irony.
17:56
Speaker 2: So Justice Kennedy figures that, you know, well, when we
18:00
Speaker 2: take us on the merits docket, it's going to end
18:02
Speaker 2: up being struck down anyway. But then Justice Scalia passed away,
18:07
Speaker 2: and so the vote on the power Plan would most
18:11
Speaker 2: likely have been four four, and so Obama's power Plan
18:15
Speaker 2: would have gone into effect.
18:18
Speaker 7: Likely obviously we don't know, because we're deprived of that
18:20
Speaker 7: knowledge because of how history played out.
18:23
Speaker 4: The other thing that's amazing about this is.
18:25
Speaker 7: Why the leak, Now you know, is this a leak
18:28
Speaker 7: from clerks who have orded this material for ten years.
18:33
Speaker 7: Is this a leak from the Supreme Court justice that's
18:36
Speaker 7: more and more frustrated with how the Court is acting.
18:40
Speaker 7: We don't know, but it certainly suggests that tensions are
18:44
Speaker 7: aflame within the Supreme Court building.
18:47
Speaker 2: Well, we've seen that with the various justices. I mean,
18:50
Speaker 2: we saw Sodo Mayor criticizing Kavanaugh and then coming out
18:54
Speaker 2: with an apology. We saw Jackson and Kavanaugh quibbling about
18:59
Speaker 2: the shadow in a public appearance, and Jackson giving an
19:03
Speaker 2: hour long speech at Yale Law School basically taking the
19:07
Speaker 2: shadow docket apart and criticizing it. So it seems like
19:12
Speaker 2: the tensions are pretty much out in the open.
19:16
Speaker 1: Yeah.
19:16
Speaker 7: And this idea of, you know, the friendship between RBG
19:20
Speaker 7: and Justice Scalia is you know, a thing of the
19:22
Speaker 7: distant past. And obviously these justices don't like each other.
19:26
Speaker 7: They're sniping at each other, and now they're arguably possibly
19:30
Speaker 7: making leads. So we don't have a very unified or
19:32
Speaker 7: collegial court.
19:33
Speaker 2: I've asked you often in the past, how much are
19:35
Speaker 2: the justices influenced by public discussions of the issues, public discourse,
19:41
Speaker 2: And here they're relying on outside sources like a blog
19:45
Speaker 2: post and television interviews to push their points.
19:49
Speaker 7: We try to teach our students, you know, the Supreme
19:52
Speaker 7: Court justices consider they deliberate, they're influenced by their predecessors.
19:58
Speaker 7: They try to understand the integer of the legal process.
20:02
Speaker 7: And then we're confronted by these memos, the disparate memos
20:07
Speaker 7: that seem to suggest, oh, it's all about politics and
20:09
Speaker 7: our knee jerk reaction to what we think is dangerous
20:13
Speaker 7: for politics. So they're acting as politicians. So what then
20:17
Speaker 7: differentiates the Court from the other institutions is getting a
20:21
Speaker 7: little moneier here, And I think that's the real downside
20:25
Speaker 7: of what they've done, is to sap the Supreme Court
20:28
Speaker 7: of the respect that it should otherwise deserve in our
20:32
Speaker 7: part time system.
20:33
Speaker 2: Yeah, and how many times have we heard the Chief
20:36
Speaker 2: Justice talk about the Supreme Court is not a political institution.
20:41
Speaker 2: We're different from the political branches. And here it's all
20:45
Speaker 2: about politics.
20:46
Speaker 4: It is.
20:47
Speaker 7: And again I can understand why people are disillusioned, because
20:51
Speaker 7: if the Court is thinking about politics, you know, what
20:54
Speaker 7: gives them the advantage as opposed to those in Congress.
20:58
Speaker 2: Was this in any sense? Hence President Obama versus Chief
21:03
Speaker 2: Justice Roberts, because I mean Obama was one of just
21:07
Speaker 2: twenty two Senators who voted against roberts confirmation, and here
21:11
Speaker 2: it seems like the Chief Justice is eager to assert
21:16
Speaker 2: the authority of the Supreme Court against Obama.
21:20
Speaker 7: I don't know how much of this is reaction to
21:23
Speaker 7: the friction between Chief Justice Roberts and President Obama. I
21:27
Speaker 7: think it's more about President Obama's policies that he just
21:30
Speaker 7: thought that the Democrat was wrongheaded in trying to sort
21:35
Speaker 7: of quickly change the ground in terms of climate change
21:39
Speaker 7: and limiting pollution, and saw his responsibility as the Court
21:45
Speaker 7: to do something about the rapid change that was at
21:49
Speaker 7: play within the Environmental Protection Agency.
21:52
Speaker 2: Do you think that there'll be any fallout from this
21:55
Speaker 2: publication of these notes.
21:57
Speaker 7: Well, we saw that the first Jobs decison, if you remember,
22:01
Speaker 7: was released by someone, and we knew what the top
22:04
Speaker 7: decision was going to say overruling their right to an abortion,
22:08
Speaker 7: and tighter security was imposed, but nothing really happened. Again,
22:11
Speaker 7: we don't know if the leak is from now or
22:13
Speaker 7: from ten years ago. There may be some more security,
22:16
Speaker 7: but I think now in this age, there won't be
22:20
Speaker 7: too many more steps that can be undertaken by the
22:22
Speaker 7: Court to prevent this kind of leaking. But the leaking
22:26
Speaker 7: isn't good for the court. Clearly, this is a court
22:30
Speaker 7: that has lost its civility but also its ability to
22:35
Speaker 7: be collegial.
22:35
Speaker 2: And also I'm wondering if, since now we have this
22:39
Speaker 2: huge leak you mentioned the leak before, whether the justices
22:43
Speaker 2: will be more reluctant to put things into writing that
22:46
Speaker 2: can be leaked.
22:48
Speaker 4: Oh.
22:48
Speaker 7: Absolutely, I think that if you know that your rough
22:51
Speaker 7: draft in your comments, Snyder or otherwise may end up
22:55
Speaker 7: in the New York Times, you're going to think twice
22:57
Speaker 7: before you write that down. And that's also not good
23:00
Speaker 7: the court. Right, Sometimes it's really important to have a
23:02
Speaker 7: sharply worded memo, some kind of comments about the wisdom
23:06
Speaker 7: of a particular argument that another justice may write, and
23:10
Speaker 7: the justices will be more restrained in showing candor for
23:14
Speaker 7: fear of the disclosure.
23:15
Speaker 2: And hell, I want to get your reaction to this
23:17
Speaker 2: speech by Justice Thomas, ostensibly to commemorate the two hundred
23:22
Speaker 2: and fiftieth anniversary of the Declaration of Independence, but it
23:26
Speaker 2: devolved into an attack on progressivism.
23:30
Speaker 6: Progressivism seeks to replace the basic premises of the Declaration
23:35
Speaker 6: of Independence and hence our form of government.
23:39
Speaker 2: Thomas said that Stalin, Hitler, Mussolini, and Mao were all
23:44
Speaker 2: intertwined with the rise of progressivism, as was racial segregation, eugenics,
23:50
Speaker 2: and other evils.
23:52
Speaker 7: I do think there's a tie here, both with the
23:55
Speaker 7: Roberts decision and with Thomas. There is such a deep
23:59
Speaker 7: seated hatred for the administrative state and Justice Thomas calls
24:03
Speaker 7: it progressivism. What he's talking about is this idea of
24:06
Speaker 7: these experts and government, and both Chief Justice Roberts and
24:11
Speaker 7: Justice Thomas sort of events a real distrust for anybody
24:15
Speaker 7: who believes in bureaucratic government, anybody who relies on the
24:19
Speaker 7: government to actually respond to our nation's woes and to
24:24
Speaker 7: try to help up the country.
24:26
Speaker 2: Well, the Roberts Court's attacks on the administrative state have
24:29
Speaker 2: been pretty clear, Thanks Hal. That's Professor Harold Krant to
24:33
Speaker 2: the Chicago Kent College of Law coming up next, and
24:36
Speaker 2: Appellate Court rules it's okay to force schools to post
24:40
Speaker 2: the Ten Commandments in classrooms. I'm June Grosso and you're
24:43
Speaker 2: listening to Bloomberg. President Trump cheered laws requiring the Ten
24:50
Speaker 2: Commandments to be displayed in schools. While speaking to a
24:53
Speaker 2: group of evangelical Christians as he campaigned in twenty twenty four.
24:58
Speaker 7: Who likes the Ten Commandment by the way going up
25:00
Speaker 7: in the school. They think it's such a bad thing,
25:06
Speaker 7: I said, Has anyone read the thou shalt not steal?
25:10
Speaker 2: Thou shalt?
25:11
Speaker 1: I mean, has anybody read this incredible stuff?
25:15
Speaker 4: It's just incredible.
25:16
Speaker 1: They don't want it to go up.
25:17
Speaker 2: And Now, in a significant win for conservatives who've been
25:21
Speaker 2: trying to inject more religion into classrooms, the Fifth Circuit
25:26
Speaker 2: Court of Appeals has ruled that Texas can force public
25:29
Speaker 2: schools to display the Ten Commandments in classrooms. A nine
25:34
Speaker 2: to eight decision of the Full Appellate Court, considered the
25:37
Speaker 2: most conservative circuit court in the country, found that the
25:41
Speaker 2: Texas law doesn't violate the separation of church and state.
25:45
Speaker 2: Challenges of the law had argued that displaying the Ten
25:48
Speaker 2: Commandments in classrooms amounts to proselytizing and violates the rights
25:53
Speaker 2: of parents to decide when, how and if to provide
25:57
Speaker 2: religious instruction to their children. Case is expected to end
26:01
Speaker 2: up at the Supreme Court, where the conservative majority has
26:05
Speaker 2: steadily been expanding religious rights. My guest is an expert
26:09
Speaker 2: in the First Amendment, Caroline Malacorbin, a professor at the
26:13
Speaker 2: University of Miami Law School. Caroline, to put this case
26:17
Speaker 2: into context, tell us about the Texas law and Supreme
26:20
Speaker 2: Court precedent.
26:22
Speaker 8: The Texas law is pretty straightforward. It basically required that
26:27
Speaker 8: in every single public school classroom there had to be
26:32
Speaker 8: a Ten Commandments poster. It had to be sufficiently large,
26:37
Speaker 8: easy to read, easy to see, there couldn't be anything
26:40
Speaker 8: else around it, and they dictated the particular version of
26:44
Speaker 8: the Ten Commandments. Now, it's not surprising that this mandatory
26:48
Speaker 8: scripture on the wall triggered an Establishment Clause violation. The
26:52
Speaker 8: Establishment Clause, of course, is that part of the First
26:56
Speaker 8: Amendment of the US Constitution, which required some separation between
27:00
Speaker 8: church and state. Texas was not the first state to
27:04
Speaker 8: mandate Ten Commandments in the public schools. Kentucky had tried
27:08
Speaker 8: the same thing about forty five years ago, and the
27:10
Speaker 8: Supreme Court had already made a decision about it in
27:14
Speaker 8: a case known as Stone v.
27:15
Speaker 1: Graham.
27:16
Speaker 8: The Supreme Court held, this is a blatant violation of
27:20
Speaker 8: the Establishment Clause. There is no secular purpose for mandating
27:25
Speaker 8: biblical texts on schoolroom walls when you're not even incorporating
27:30
Speaker 8: it into any kind of secular education, it is unconstitutional.
27:35
Speaker 8: So there is a case directly on point that holds
27:38
Speaker 8: this kind of law violates the Establishment Clause. Unfortunately, the
27:43
Speaker 8: precedent doesn't stop there, because the Roberts Court has been
27:47
Speaker 8: very busy trying to dismantle protections of the Establishment Clause.
27:52
Speaker 8: And one way it's been doing that is by rejecting
27:57
Speaker 8: earlier tests that the Supreme Court has relied on. And
28:01
Speaker 8: the doctrine that was part of the decision in the
28:05
Speaker 8: earlier ten Commandment's case was something known as the Lemon test,
28:09
Speaker 8: and the Lemon test said, listen, you're violating the Establishment
28:12
Speaker 8: Clause if your law doesn't have a primarily secular purpose
28:16
Speaker 8: or it doesn't have a primarily secular effect. And the
28:20
Speaker 8: Roberts Court has said, this is no longer the test
28:24
Speaker 8: we're going to use in the Establishment Clause. Instead, the
28:29
Speaker 8: touchstone for an Establishment Clause analysis is to look to
28:33
Speaker 8: history and original understandings, and so this is what faced
28:38
Speaker 8: the Fifth Circuit Court of Appeals.
28:41
Speaker 2: Only the Supreme Court can overturn its own precedent, So
28:45
Speaker 2: isn't strong. The Gram still the precedent.
28:49
Speaker 8: Now, the courts below had said, listen, there's still a
28:53
Speaker 8: Supreme Court case that's directly on point. It has not
28:56
Speaker 8: been explicitly overruled, and therefore it still controls, and therefore
29:02
Speaker 8: this is not a difficult case. The Fifth Circuit, on
29:06
Speaker 8: the other hand, argued the precedent depended on a test
29:11
Speaker 8: that has since been rejected, and not only did it
29:15
Speaker 8: reject Stone free Gram as controlling precedent, it interpreted the
29:21
Speaker 8: Supreme Court guidance to look to history and understanding in
29:27
Speaker 8: a very narrow way. It basically adapted a concurrence from
29:32
Speaker 8: Gorsuch that said, and this is the Fifth Circuit's new
29:36
Speaker 8: rule for establishment clause challenges is if this does not
29:40
Speaker 8: resemble something the original founders would consider a religious establishment,
29:47
Speaker 8: then it doesn't violate the establishment clause. And there was
29:50
Speaker 8: a short.
29:51
Speaker 1: List of things.
29:52
Speaker 8: It said, these are the things that the founders thought
29:55
Speaker 8: was a religious establishment, and this does not resemble any
29:58
Speaker 8: of them, and their it doesn't violate the adoption clause.
30:04
Speaker 8: So that's what it held. It rejected the Supreme Court's
30:08
Speaker 8: existing precedent. It interpreted the Supreme Court's turned to history
30:13
Speaker 8: in a very particular narrow way and said this does
30:17
Speaker 8: not resemble something that was an establishment at the time
30:20
Speaker 8: of her country's origins, and therefore no problem whatsoever to
30:27
Speaker 8: have a Protestant version of the Ten Commandments on every
30:31
Speaker 8: single classroom in every single public school in Texas, regardless
30:36
Speaker 8: of whether it's the science lab or the library, or
30:39
Speaker 8: the music room or your English class Caroline.
30:41
Speaker 2: What also struck me is that there was that Supreme
30:44
Speaker 2: Court case my Mood that you and I discussed at
30:47
Speaker 2: the time, saying that parents could opt their children out
30:52
Speaker 2: of LGBTQ material that contradicted their religious beliefs, and tire
30:57
Speaker 2: the Fifth Circuit said, the measure doesn't strict parents' right
31:01
Speaker 2: to direct their children's religious upbringing. I mean, how do
31:04
Speaker 2: they possibly distinguish that case.
31:06
Speaker 8: So this is the case involving picture books with lgbt
31:11
Speaker 8: characters in them that were part of the English curriculum
31:15
Speaker 8: in some public schools, and some conservative religious folks claimed
31:20
Speaker 8: that having their children hear these stories about same sex
31:25
Speaker 8: marriage when that same sex marriage was not condemned, violated
31:30
Speaker 8: their religious rights and therefore they had a free exercise
31:35
Speaker 8: right to opt their children out of hearing their stories,
31:38
Speaker 8: and the Supreme Court, always sympathetic to very conservative Christian concerns,
31:44
Speaker 8: said absolutely, it's a violation of your free exercise rights
31:48
Speaker 8: for your child to be exposed to same sex marriages
31:53
Speaker 8: in a positive way, because that's contrary to your anti
31:56
Speaker 8: same sex marriage beliefs, and you are out to opt out.
32:00
Speaker 8: Is in this in even more direct affront to non
32:04
Speaker 8: adherence beliefs, to be presented with the Ten Commandments everywhere
32:10
Speaker 8: they turned, which is contrary to their own beliefs. Like
32:13
Speaker 8: the clashes. Just like the same sex marriage clashes with
32:17
Speaker 8: my beliefs, the Ten Commandment clashes even more directly because
32:21
Speaker 8: they're religious, and surely the Mood case would support the
32:27
Speaker 8: approach to the Ten Commandments as something problematic and something
32:31
Speaker 8: that should not be allowed. The Fifth Circuit distinguished it
32:34
Speaker 8: in two ways. They exaggerated the harm to the parents
32:39
Speaker 8: in the Mood and they ignored the harms to the
32:43
Speaker 8: parents who opposed the Ten Commandments. The other thing, as
32:47
Speaker 8: one of the dissent points out, that they completely ignore,
32:51
Speaker 8: is that the Supreme Court has historically been very mindful
32:57
Speaker 8: of the establishment clause in the public school context for
33:01
Speaker 8: several reasons. One the state requires children to be there,
33:07
Speaker 8: so they're already using coercion and requiring their attendance. Second,
33:12
Speaker 8: these are young children. These are impressionable children, and they're
33:15
Speaker 8: very influenced by what happens in school. They're very influenced
33:19
Speaker 8: by their teachers, by their peers. There's a lot of
33:21
Speaker 8: pressure on them to conform. And Third, this whole idea
33:26
Speaker 8: is parents are trusting them to schools on the understanding
33:30
Speaker 8: that they're not going to try and conculcate them in
33:33
Speaker 8: a religion not their own. And so even when the
33:36
Speaker 8: Supreme Court was moving away from more protection under the
33:42
Speaker 8: Establishment Clause, it has historically been especially careful when it
33:47
Speaker 8: comes to children in public schools, and there was zero
33:52
Speaker 8: mention of that in the majority's opinion.
33:55
Speaker 2: Although the Supreme Court has allowed a high school football
33:58
Speaker 2: coach to pray on them fifty yard line right after games,
34:03
Speaker 2: saying his players wouldn't feel coerce to pray alongside him.
34:07
Speaker 2: So not if. But when this gets to the Supreme Court,
34:11
Speaker 2: how do you think they'll rule.
34:13
Speaker 8: I have little confidence in a principal decision from the
34:17
Speaker 8: current Supreme Court when it comes especially to issues involving
34:22
Speaker 8: the rights of conservative Christians and doing what they want, right.
34:25
Speaker 8: I think it's a white Christian nationalist court. I think
34:28
Speaker 8: they'll decide whatever is favorable to the white Christian nationalists.
34:31
Speaker 8: So I think that they would probably end up upholding
34:35
Speaker 8: this law. Now, there are a lot of different tactics
34:39
Speaker 8: that they might use to do it. They might not
34:42
Speaker 8: do what the Fifth Circuit did. They might try and
34:45
Speaker 8: dodge it by not finding standing. They might do it
34:49
Speaker 8: by something I call secular washing. What they might try
34:53
Speaker 8: to argue is that the Ten Commandments is not ultimately
34:57
Speaker 8: a religious doctrine but secular item. It's not about inculcating
35:04
Speaker 8: particular religious beliefs. It's about explaining or showing the role
35:09
Speaker 8: of religion in our nation's history, trying to make clear
35:14
Speaker 8: the origins of our political structure. None of that's true.
35:18
Speaker 8: But one thing the Supreme Court has done in other
35:22
Speaker 8: cases where there is some object that's obviously inherently religious
35:27
Speaker 8: and therefore should be problematic under the establishment clause, is
35:31
Speaker 8: the Court has said, no, no, no, this is not
35:33
Speaker 8: actually religious like you think. So it's not a problem
35:36
Speaker 8: like you think. And one particular case that comes to
35:39
Speaker 8: mind is the challenge to the very large Latin Cross
35:43
Speaker 8: monument in the middle of the highway, and you think
35:46
Speaker 8: that's the pre eminent symbol of Christianity. And the Court
35:49
Speaker 8: was like, no, no, no, no, no, no, it's not. You
35:52
Speaker 8: don't understand. It's actually just a symbol of World War One,
35:57
Speaker 8: and therefore there's no problem with it. And they've done
36:02
Speaker 8: that with the Ten Commandments as well. They've already laid
36:05
Speaker 8: the groundwork for arguing that the Ten Commandments, it's not
36:09
Speaker 8: religious scripture, it's not trying to proselytize. It's an educational
36:13
Speaker 8: document about our country's history and the origins of our
36:18
Speaker 8: law and government.
36:20
Speaker 2: Well, it will certainly be a while before this gets
36:22
Speaker 2: up to the Supreme Court and we find out the
36:24
Speaker 2: answer to that question. It's always great to have you on, Caroline,
36:27
Speaker 2: Thanks so much. That's Professor Caroline Malacorbin of the University
36:32
Speaker 2: of Miami Law School. And that's it for this edition
36:35
Speaker 2: of the Bloomberg Law Show. Remember you can always get
36:37
Speaker 2: the latest legal news on our Bloomberg Law Podcast. You
36:41
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36:45
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Speaker 2: to tune into the Bloomberg Law Show every weeknight at
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Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're
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Speaker 2: listening to Bloomberg