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Winners & Losers in the Supreme Court Term · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: It was a Supreme Court term in which the conservative
0:11
Speaker 2: Republican super majority transformed the law in several notable ways,
0:17
Speaker 2: expanding presidential power, cutting a landmark civil rights law, enhancing
0:23
Speaker 2: gun rights, and eliminating campaigns spending restrictions. A term where
0:27
Speaker 2: the ideological differences on the Court were never more apparent,
0:32
Speaker 2: with nearly a quarter of all rulings six to three
0:36
Speaker 2: with the Republican appointees and the majority and the Democratic
0:39
Speaker 2: appointees in dissent. That's up from eleven percent last term.
0:45
Speaker 2: My guest is an expert in constitutional law, Michael Darf,
0:49
Speaker 2: a professor at Cornell Law School. Mike, let's start with
0:52
Speaker 2: presidential power. The court block Trump's tariffs, rejected his attempt
0:59
Speaker 2: to end birthright citizenship, and prevented the immediate firing of
1:03
Speaker 2: a federal reserve governor. But the Court gave Trump and
1:07
Speaker 2: future presidents greater control over federal agencies, allowing them to
1:13
Speaker 2: fire top federal regulators even if Congress didn't intend that.
1:17
Speaker 2: And in the immigration area, the Court allowed Trump to
1:21
Speaker 2: pursue his aggressive immigration agenda in just about every case
1:26
Speaker 2: so on the whole, did Trump win or lose this.
1:28
Speaker 1: Term, I think that you have to say he won,
1:32
Speaker 1: because in the cases in which he lost, his position
1:37
Speaker 1: was so extreme that even getting the Supreme Court to
1:42
Speaker 1: divide on the issue was kind of a victory. It
1:46
Speaker 1: moved the Overton window to the right, or in this case,
1:51
Speaker 1: to the direction of greater executive power. So, you know,
1:55
Speaker 1: in Cook, for example, that's the case with the Federal
1:58
Speaker 1: Reserve governor, he gets most of the Conservatives to sign
2:02
Speaker 1: on to his position that what he did was enough
2:06
Speaker 1: under the statute to fire a member of the Fed,
2:09
Speaker 1: and that effectively, if that position had prevailed, would have
2:12
Speaker 1: given him control of the Federal Reserve.
2:14
Speaker 3: He cat very close to getting that.
2:16
Speaker 1: Likewise, with respect to birthright citizenship, which you know, nobody
2:21
Speaker 1: was even talking about as part of you know, what
2:24
Speaker 1: we thought was reasonably contestable prior to the President's executive order.
2:29
Speaker 1: There he gets, you know, a ninety page dissent by
2:33
Speaker 1: Clarence Thomas. He gets Justice Alito Justice Corsuch to propose
2:38
Speaker 1: various alternatives, all of which takes seriously this theory that
2:43
Speaker 1: most serious historians say is based on, you know, chewing
2:49
Speaker 1: gum and old newspapers that are sort of cobbled together
2:52
Speaker 1: from out of context quotes from the reconstruction era. And
2:56
Speaker 1: yet he almost wins there. And then when you look
2:59
Speaker 1: at the win and the winds are huge.
3:01
Speaker 3: Right. So in the.
3:02
Speaker 1: Slaughter case, which is he gets to fire members of
3:06
Speaker 1: the Federal Trade Commission, Court overrules a ninety year old
3:10
Speaker 1: precedent in Humphrey's executor, and this gives him, you know,
3:14
Speaker 1: nearly complete control of what were formerly independent agencies. There's
3:20
Speaker 1: this tiny carve out for the Fed in the Cook case,
3:23
Speaker 1: but it looks like that carveout is going to be
3:26
Speaker 1: available only there and maybe with respect to non Article
3:30
Speaker 1: three judges who are also distinguished. But it also suggests
3:35
Speaker 1: even further sweeping presidential power. So, for example, the dissent
3:39
Speaker 1: points out that the majority's rationale, or upholding the president's
3:46
Speaker 1: power to fire people at will, would seem to apply
3:49
Speaker 1: to civil servants as well, not just heads of agencies.
3:53
Speaker 1: There's this case Parsons, which the Court in the nineteenth
3:56
Speaker 1: century had upheld these sorts of restrictions for civil servants.
4:00
Speaker 1: Court doesn't overrule it because it's not before the Court,
4:04
Speaker 1: but the rationale would seem to apply, because the idea is,
4:08
Speaker 1: if somebody exercises executive power and they can't be fired,
4:12
Speaker 1: if that undermined the president as the head of the
4:14
Speaker 1: executive branch. It doesn't matter how low they are in
4:18
Speaker 1: the you know, line of authority. If their boss can't
4:22
Speaker 1: fire them, then the president can't supervise them. So I
4:24
Speaker 1: think the civil service is potentially in the firing line next.
4:29
Speaker 2: And even in the extreme cases like birthright citizenship and
4:33
Speaker 2: the tariffs, two of the most conservative Supreme Court justices
4:37
Speaker 2: Clarence Thomas and Samuel Alito, always found reasons to side
4:42
Speaker 2: with Trump, would you say, exemplifying the real split in
4:46
Speaker 2: the court.
4:47
Speaker 1: So I guess to be fair, if I were, you know,
4:50
Speaker 1: putting aside my brothers, you might say, well, you know,
4:54
Speaker 1: in all those cases st my Arkagan, and Jackson vote
4:57
Speaker 1: against Trump, and that you know that is it's true.
5:00
Speaker 1: That is to say that this is an ideologically divided court.
5:06
Speaker 1: I think the best way to think of it is
5:09
Speaker 1: that it's a court that has sort of three and
5:12
Speaker 1: a half center right judges. It's got two and a
5:15
Speaker 1: half extreme right judges and then three liberal justices, including
5:20
Speaker 1: Justice Gorsuch. In the sometimes centrist, sometimes on the extreme right,
5:24
Speaker 1: because that's how he votes, accepting cases involving Native Americans
5:27
Speaker 1: in which he is the most liberal justice in the
5:29
Speaker 1: history of the Supreme Court.
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Speaker 3: And you know, that's just where they are.
5:33
Speaker 1: What's striking, I think is that, for the most part,
5:37
Speaker 1: with a few exceptions for Justice Thomas on cases of
5:41
Speaker 1: relatively low salience, right, for the most part, the ideological
5:45
Speaker 1: divides are also partisan divides.
5:48
Speaker 3: Right.
5:48
Speaker 1: So the place where I think this is most apparent
5:53
Speaker 1: is in Louisiana against KLA which is the Voting Rights
5:57
Speaker 1: Act case. Even though it's not technically about executive power,
6:03
Speaker 1: we know that it was going to be and has
6:07
Speaker 1: been leverage or redistricting for partisan ends by Republicans, which
6:14
Speaker 1: was a top priority and continues to be a top
6:17
Speaker 1: priority of President Trump. And they're what's I think very
6:22
Speaker 1: revealing is how utterly closely the sort of conservative ideological
6:29
Speaker 1: position aligns with the Republican partisan position. So, you know,
6:33
Speaker 1: the conservative ideological position is government shouldn't use race as
6:37
Speaker 1: a criterion for anything.
6:39
Speaker 3: Constitution is colorblind.
6:41
Speaker 1: And you know, in the past that proposition has sometimes
6:45
Speaker 1: operated against the partisan interests of the Republican party. So
6:50
Speaker 1: if listeners who are old enough will think back to
6:53
Speaker 1: the late eighties and early nineteen nineties during the George H. W.
6:57
Speaker 1: Bush administration, there was some indication that the creation of
7:05
Speaker 1: minority majority districts was going to undermine the interests of
7:16
Speaker 1: the Democratic Party because by concentrating black voters into a
7:21
Speaker 1: few small districts, you reduced the number of mixed districts
7:27
Speaker 1: that Democrats might win. And that was before the South
7:30
Speaker 1: fully realigned, and so until very recently, taking the view
7:35
Speaker 1: that there's certain views about race in voting could scramble
7:44
Speaker 1: ideological alliances, that's not true here in Louisiana against KLA
7:49
Speaker 1: What the court says is, well, political gerrymandering is fine,
7:55
Speaker 1: and therefore.
7:56
Speaker 3: We're not going to find any kind of race.
7:59
Speaker 1: Discrimination against minority voters sufficient to create a majority minority
8:06
Speaker 1: district And the result will be we're going to empower
8:11
Speaker 1: Republican controlled state legislatures to engage in political jerry mandering
8:17
Speaker 1: that is also the facto racial jerry mandering. So you
8:21
Speaker 1: can now have your ideological cake and eat your politically
8:26
Speaker 1: partisan cake as well.
8:28
Speaker 2: Let's turn that into voting in elections. Because the court
8:31
Speaker 2: gutted the voting Rights Act. I don't know what's left
8:34
Speaker 2: of the Act at this point, and that again was
8:38
Speaker 2: sixty three, as was Louisiana La. So I mean, it's
8:43
Speaker 2: been said that this is something that the Chief Justice
8:46
Speaker 2: has had on his agenda. Shall we say we saw
8:49
Speaker 2: the first part of the attack on the Voting Rights
8:51
Speaker 2: Act in the case of Shelby County versus Holder.
8:55
Speaker 3: Right, So you can think of it as a one
8:56
Speaker 3: to two punch.
8:57
Speaker 1: So in Shelby County against Holder, they said that the
9:00
Speaker 1: coverage formula of which areas were subject to preclearance was unconstitutional,
9:08
Speaker 1: and so that eliminated the executive branch as the enforcer
9:12
Speaker 1: of the Voting Rights Act. What they did in the
9:14
Speaker 1: KLA case this term was to say that the threshold
9:20
Speaker 1: for binding that there has been, you know, improper use
9:26
Speaker 1: of race is so high because it's so hard to distinguish,
9:30
Speaker 1: in their view between racial and political gerrymandering. That effectively,
9:34
Speaker 1: now you've taken the judiciary out of the picture. What's left,
9:38
Speaker 1: I think, right, since you can no longer say that
9:42
Speaker 1: disparate impact is sufficient, what's left is to say that
9:47
Speaker 1: if state legislators are stupid enough to expressly say we
9:54
Speaker 1: are gerrymandering here because we are we have racial animis, well,
9:59
Speaker 1: then that's a violent of the Voting Rights Act And
10:01
Speaker 1: that just seems extraordinarily unlikely.
10:04
Speaker 2: Yes, because in the Alabama case, a three judge panel
10:08
Speaker 2: had found that the state did intentionally discriminate against black voters.
10:13
Speaker 2: But the Supreme Court ignore that Basically, shouldn't they have
10:16
Speaker 2: accepted the facts as a three judge panel saw them
10:18
Speaker 2: instead of making their own conclusions.
10:20
Speaker 1: Yes, I think what they would say is that the
10:25
Speaker 1: lower court did not give adequate force to the possibility
10:32
Speaker 1: that this was all just political jerrymandering. The way that
10:37
Speaker 1: they put it is that in order to show race discrimination,
10:44
Speaker 1: the plaintiffs need to construct an alternative map that achieves
10:50
Speaker 1: all of the goals of the legislature, including protecting incumbents
10:56
Speaker 1: and partisan gerrymandering. And only then if you can do
11:01
Speaker 1: that and show that you could have an additional majority
11:04
Speaker 1: minority district, only then have you shown anything. But of course,
11:07
Speaker 1: given the way that you know people are concentrated, and
11:11
Speaker 1: given the strong correlation between race and voting patterns, that's
11:16
Speaker 1: going to be virtually impossible. So to my mind, it's
11:21
Speaker 1: not just the Shelby County case that tees up CALA.
11:27
Speaker 1: It's also Rucho against Common Cause Right, which is the
11:30
Speaker 1: case from a number of years ago in which the
11:32
Speaker 1: Court says that challenges to political gerrymandering are not justiciable,
11:38
Speaker 1: meaning they can't be heard by federal courts. And then
11:42
Speaker 1: the transformation of that holding from the proposition that it
11:47
Speaker 1: might be unconstitutional, but there's nothing the courts can do
11:49
Speaker 1: about it, to the proposition that partisan jerrymandering, you know,
11:53
Speaker 1: it's not just a sin, we can't block, it's a
11:56
Speaker 1: virtue somehow.
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Speaker 3: And so that's the key move made it.
12:00
Speaker 1: In an earlier case, but they really run with it
12:03
Speaker 1: in KLA because without that the plaintiffs win. It's only
12:07
Speaker 1: because the plaintiffs can't reproduce the same maps and get
12:11
Speaker 1: the partisan jerrymander that the court is able to reject
12:15
Speaker 1: the plaintiff's case.
12:16
Speaker 2: Coming up next more on the Supreme Court term with
12:19
Speaker 2: Cornell law professor Michael Dorf. A losing term for LGBTQ rights.
12:25
Speaker 2: Once again, this is bloomberg. In three election law cases
12:31
Speaker 2: before the Supreme Court this term, the justices gutted a
12:34
Speaker 2: key provision of the Voting Rights Act in a six
12:37
Speaker 2: to three decision down ideological lines, struck down limits on
12:43
Speaker 2: coordinated spending between political parties and candidates, again an ideological
12:48
Speaker 2: split six to three. However, the court did uphold the
12:51
Speaker 2: state's ability to count mail in ballots postmarked by election
12:56
Speaker 2: day but received later. I've been talking to Professor Michael
12:59
Speaker 2: Dorf Cornell Law School, Mike in a pretty high profile
13:03
Speaker 2: case involving mail in ballots in Mississippi and whether that
13:08
Speaker 2: state could count mail in ballots that are postmarked by
13:12
Speaker 2: election day but received later. And that decision was five
13:15
Speaker 2: to four, with the Chief Justice and Justice Amy Cony
13:19
Speaker 2: Barrett joining the Court's liberals in the majority. That gave
13:23
Speaker 2: the Democrats a rare victory at the Court. Were you
13:27
Speaker 2: surprised by that decision?
13:29
Speaker 1: I wasn't terribly surprised hardly, because although this has been
13:34
Speaker 1: a priority of President Trump, right to go after mail
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Speaker 1: in ballots, it hasn't been a priority of the Republican
13:43
Speaker 1: Party because it doesn't actually.
13:45
Speaker 3: Benefit the Republican Party.
13:47
Speaker 1: As such, the parties both take advantage of mail in voting.
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Speaker 1: I mean, the fact that it was Mississippi tells you something.
13:55
Speaker 1: Mississippi is a deep red state, but they're the ones
13:59
Speaker 1: who are defended their particular timing rules. The other problem
14:04
Speaker 1: for the argument against this is that if you take
14:08
Speaker 1: it literally, then you know, what about the fact that
14:12
Speaker 1: there's early voting in a lot of states, So it
14:14
Speaker 1: would really have been extremely disruptive of the way that
14:19
Speaker 1: many states, both red and blue, conduct their elections and
14:22
Speaker 1: without the clear partisan balance. It didn't surprise me the.
14:25
Speaker 2: Court struck down limits on coordinated spending between political parties
14:30
Speaker 2: and candidates, and that also was six to three.
14:33
Speaker 1: Yeah, so that case, you know, you can think of
14:36
Speaker 1: that in the same category of cases going back to
14:39
Speaker 1: Citizens United, where the Court is taking a very restrictive
14:44
Speaker 1: view of what Congress can do to regulate campaign finance.
14:50
Speaker 1: And one of the criticisms of Citizens United is that
14:54
Speaker 1: the Court was sort of naive about the way in
14:57
Speaker 1: which money affects politics. Well, you know, someone makes an
15:01
Speaker 1: independent expenditure that's not going to buy a candidate, but
15:05
Speaker 1: of course the candidates know that that's going on. Same
15:08
Speaker 1: thing is true here, right, The court says, well, you know,
15:12
Speaker 1: of course parties are going to coordinate their campaigns with
15:18
Speaker 1: the candidates.
15:19
Speaker 3: That's true, but that's not what coordination is about.
15:21
Speaker 1: As the dissenters point out in the case, the whole
15:24
Speaker 1: point of this restriction was to prevent circumvention of the
15:30
Speaker 1: limits on giving money to an individual candidate.
15:34
Speaker 3: Right, So you can only give you.
15:35
Speaker 1: Know, probably about four thousand dollars in the next campaign
15:38
Speaker 1: cycle to a candidate, once for the primary and once
15:42
Speaker 1: for the general election. But if you can give you know,
15:45
Speaker 1: hundreds of thousands of dollars to the party and then
15:48
Speaker 1: have that earmarked for that candidate, well then you've essentially
15:52
Speaker 1: here's that word again, gutted the campaign contribution limits with
15:57
Speaker 1: respect to individual candidates.
15:59
Speaker 3: I think that is the goal of the Roberts Court here.
16:01
Speaker 2: Frankly, Elena Kagan during the oral arguments and in her dissent,
16:06
Speaker 2: made it pretty clear. I mean, it's wink wink, not
16:09
Speaker 2: not or not even how this is going to work
16:11
Speaker 2: out in the end.
16:12
Speaker 4: One of the criticisms of the Citizens United, which comes
16:19
Speaker 4: from an exception that goes it was in the Buckley
16:21
Speaker 4: against Balleo case all the way back in nineteen seventy six.
16:24
Speaker 1: One of the criticisms of that case is that if
16:27
Speaker 1: you have low limits on contributions to candidates but no
16:32
Speaker 1: limits on independent expenditures, you essentially eliminate or greatly reduce
16:39
Speaker 1: the disciplining effect of candidates having to stand behind the message.
16:44
Speaker 3: So you know, when a candidate says, I'm you.
16:46
Speaker 1: Know, Joshmo, and I endorse this message, right, you don't
16:50
Speaker 1: see that when you've got an independent ad you know
16:54
Speaker 1: on you know, Americans for a Better America. But it's
16:58
Speaker 1: actually in favor of candidate josh and they can say
17:00
Speaker 1: anything they want and then Joshmo has plausible deniability. By
17:06
Speaker 1: allowing greater coordination between the parties and the candidates, you
17:12
Speaker 1: create some additional bonds which could result in some greater
17:17
Speaker 1: disciplining force, as opposed to making everybody just a kind
17:21
Speaker 1: of independent agent who can say whatever they want. So
17:25
Speaker 1: I've seen some people who favor campaign finance regulation to say,
17:28
Speaker 1: given everything else that goes on, it's actually not such
17:31
Speaker 1: a bad thing to allow coordination between parties and candidates.
17:35
Speaker 2: We shall see, I guess. But I mean so talking
17:38
Speaker 2: about Robert's always saying, you know, we're not politicians in robes,
17:42
Speaker 2: and we're different from the political branches. But when you
17:46
Speaker 2: have these election cases and it comes down to Republicans
17:50
Speaker 2: versus Democrats on you know, for example, setting off that
17:53
Speaker 2: redistricting in the Southern States, and you know, this coordinated
17:58
Speaker 2: spending and the voting right now, I mean, doesn't it
18:01
Speaker 2: paint the court as more political?
18:04
Speaker 3: Yes?
18:05
Speaker 1: And I would add that this is exacerbated by the
18:12
Speaker 1: fact that, you know, in recent years we've had a
18:16
Speaker 1: court in which the most liberal Republican appointee is nonetheless
18:23
Speaker 1: much more conservative than the most conservative Democratic appointee. That
18:27
Speaker 1: wasn't always true, and it wasn't true in a big
18:31
Speaker 1: way in periods that are still within living memory. So certainly,
18:36
Speaker 1: during the Warren Court, right the two most influential liberal
18:40
Speaker 1: justices were Earl Warren himself and William Brennan, both of
18:44
Speaker 1: whom were appointed by President Eisenhower, who's a Republican. You know,
18:49
Speaker 1: it wasn't all that long ago that this court still
18:53
Speaker 1: had David Souter, Sandrade O'Connor, John Paul Stevens, Anthony Kennedy,
18:59
Speaker 1: all of of whom were Republican appointees who, to one
19:02
Speaker 1: degree or another had a liberal or moderate streak. It's
19:06
Speaker 1: been a while since we had the last conservative Democrat.
19:11
Speaker 3: That was probably Byron White.
19:13
Speaker 1: But the reason why it's been a while is because
19:15
Speaker 1: there's so few Democratic appointees lately, and so I think
19:19
Speaker 1: that the fact that we have such a partisan court
19:24
Speaker 1: and visibly part is in court is partly to do
19:27
Speaker 1: with greater polarization in our politics. You know, the era
19:32
Speaker 1: when you had moderate to liberal Republicans was an era
19:37
Speaker 1: when you still had New England and Midwestern Republicans who
19:42
Speaker 1: were liberal on a lot of issues, and you had
19:44
Speaker 1: Dixiecrats who were conservative on a lot of issues. And
19:47
Speaker 1: so it wasn't that unusual for a Republican president to
19:51
Speaker 1: appoint a moderate to liberal or a Democratic president to
19:54
Speaker 1: appoint a moderate to conservative.
19:56
Speaker 3: That just doesn't happen anymore.
19:58
Speaker 1: And so now you're seeing this perfect alignment of ideology
20:02
Speaker 1: and partisan politics.
20:03
Speaker 2: Let's turn to LGBTQ rights, and these always seem to
20:08
Speaker 2: be ideologically divided, with the Liberals in dissent. So you
20:13
Speaker 2: had the court upholding state bans on transgender athletes competing
20:19
Speaker 2: on girls' school sports teams. I mean, I don't think
20:23
Speaker 2: anyone ever expected that the Conservatives were going to vote
20:26
Speaker 2: any which way besides upholding these bands.
20:29
Speaker 1: Well, the reason to have some hope, it was a
20:32
Speaker 1: hope that was dashed, but the reason to have some
20:33
Speaker 1: hope was the fact that in the boss Stock case
20:38
Speaker 1: back in twenty twenty, the Supreme Court, in an opinion
20:42
Speaker 1: by Justice Neil Gorsich joined by Chief Justice John Roberts
20:45
Speaker 1: and the more liberal justices, said that Title seven, which
20:49
Speaker 1: is the federal employment discrimination statute when it forbids sex discrimination,
20:55
Speaker 1: also therefore forbidds discrimination on the basis of sexual orientation
20:59
Speaker 1: and transgender status. And this case arose under both the
21:05
Speaker 1: egal protection clause of the Fourteenth Amendment and Title nine
21:09
Speaker 1: of that same Civil Rights Act. And this Title nine
21:13
Speaker 1: is broadly similar to Title seven. So there was at
21:16
Speaker 1: least a cymopacia, that is, you know, first instance argument
21:20
Speaker 1: that what's true of Title seven should be true of
21:24
Speaker 1: Title nine. Now there were reasons to think that, as
21:27
Speaker 1: the Court ultimately held that might not work. Part of
21:30
Speaker 1: it is there's this provision in Title nine, adopted a
21:33
Speaker 1: couple of years after the adoption of Title line itself,
21:36
Speaker 1: called the Javits Amendment, which allows for sex segregated athletic teams.
21:41
Speaker 1: There's no parallel allowance in Title seven. But still the
21:45
Speaker 1: so called boss Stock analogy was pretty powerful, i should say,
21:49
Speaker 1: turned out not to be that way. Even the liberal
21:51
Speaker 1: justices rejected the statutory claim, although they accepted the egal
21:55
Speaker 1: protection claim. If you're viewing it from a social pole lens,
22:00
Speaker 1: like you know, how far is this court going to go?
22:03
Speaker 1: I think I shared your view going into the case,
22:07
Speaker 1: and certainly after the oral argument that there weren't going
22:10
Speaker 1: to be the votes there to say that what the
22:13
Speaker 1: states were doing in these cases was unlawful. But that
22:18
Speaker 1: doesn't mean that the legal argument was so bad. It
22:21
Speaker 1: just means that, you know, you look at the justices
22:24
Speaker 1: and you think they're not ready for this, and you know,
22:27
Speaker 1: to be fair, the argument for excluding transgender women from
22:34
Speaker 1: women's sports and transgender girls from girls' sports is at
22:38
Speaker 1: least in many cases stronger than it is for keeping
22:43
Speaker 1: out you know, someone who's gay or trends from just
22:47
Speaker 1: any job. And so the result was not especially shocking
22:51
Speaker 1: for that reason.
22:52
Speaker 2: You put it into context what this court has done
22:55
Speaker 2: this term and in prior terms. So this term, besides
22:59
Speaker 2: the trensgender sports case, the Court struck down Colorado's ban
23:04
Speaker 2: on conversion talk therapy for LGBTQ miners, which every medical
23:11
Speaker 2: association says is not healthy for miners. On the Court's
23:15
Speaker 2: emergency docket, The Conservatives have also allowed the Trump administration
23:20
Speaker 2: to ban transgender people from the military and bar passport
23:25
Speaker 2: applicants from designating their gender identities on their passports, and
23:30
Speaker 2: that was just this term. There hasn't been a decision
23:34
Speaker 2: where LGBTQ wrights won since the Boss doc case you
23:39
Speaker 2: were talking about back in twenty twenty.
23:42
Speaker 1: I don't disagree, and I don't like really any of
23:45
Speaker 1: these decisions. I will say that for me, at least,
23:48
Speaker 1: the Colorado conversion therapy case was hard, not because I
23:53
Speaker 1: think conversion therapy is a good idea or works, but
23:56
Speaker 1: because I worried that the kind of argument that was
24:00
Speaker 1: needed to sustain Colorado's ban would have given this court
24:08
Speaker 1: also been sufficient to sustain state bans on gender affirming
24:14
Speaker 1: talk therapy. So in the Scrimmatic case last year, the
24:18
Speaker 1: case of Pols Tennessee ban on hormone treatment and pubity blockers,
24:23
Speaker 1: the state also banned surgery, but surgery wasn't actually an issue.
24:27
Speaker 1: But presumably today it's still possible for a transminor to
24:33
Speaker 1: go to a therapist in Tennessee and have talk therapy
24:39
Speaker 1: that is supportive of their gender identity.
24:43
Speaker 3: If the court had said, well.
24:46
Speaker 1: Colorado can ban conversion therapy because talk therapy is a
24:53
Speaker 1: medical practice and not speech or not you know, protected
24:58
Speaker 1: speech or less protected speech. Then I could see Tennessee
25:01
Speaker 1: or Alabama or some other state coming to the court
25:03
Speaker 1: and say, well, you know what, we're going to ban
25:05
Speaker 1: this gender firm me talk therapy, and we can do
25:08
Speaker 1: that too as regulation.
25:10
Speaker 3: Of the medical profession. And I could see a court
25:13
Speaker 3: if this court had gone the other way in the
25:15
Speaker 3: Colorado case, I would worry that they would go and
25:18
Speaker 3: do the same thing for these other bends that I
25:21
Speaker 3: think would be really destructive. So that's my effort to
25:23
Speaker 3: find a silver lining in that case.
25:25
Speaker 2: Fair enough, So let's turn from the First Amendment to
25:27
Speaker 2: the second Amendment. Is it fair to say that the
25:30
Speaker 2: Court expanded gun rights in two cases this term.
25:33
Speaker 3: Yes.
25:34
Speaker 1: Now one of the cases, of course, was actually unanimous.
25:38
Speaker 3: Right. So this is the case where there's this Texas man.
25:41
Speaker 1: Who admits to using marijuana roughly every other day, and
25:47
Speaker 1: under a federal statute, that's a basis for taking away
25:53
Speaker 1: his firearms, and you're criminally convicting him. And the court
25:58
Speaker 1: unanimously says, come on, but the basis for doing it
26:03
Speaker 1: is in some ways ridiculous. It's this test that they
26:06
Speaker 1: announced in the Bruin case a few years ago, which
26:10
Speaker 1: says that in order for a regulation of firearms to
26:14
Speaker 1: be valid, it has to be analogous to a regulation
26:19
Speaker 1: of firearms either in seventeen ninety one when the Second
26:23
Speaker 1: Amendment was adopted, or maybe in eighteen sixty eight when
26:26
Speaker 1: the Fourteenth Amendment was adopted. We're not going to tell
26:27
Speaker 1: you which, And it had to have been the kind
26:29
Speaker 1: of regulation that was widespread at the time, whichever of
26:32
Speaker 1: those times. And so of course the government said, well,
26:35
Speaker 1: you know, there were these laws that disarmed habitual drunkards
26:38
Speaker 1: at the founding era. And then there's a debate over
26:42
Speaker 1: how similar or not being a marijuana user is to
26:45
Speaker 1: being an habitual drunkard, and the Cord ultimately concludes it's
26:47
Speaker 1: not that similar at all.
26:48
Speaker 3: But that's sort of ridiculous, right.
26:50
Speaker 1: The real question should be does using marijuana roughly every
26:55
Speaker 1: other day distinguish somebody enough from the average person that
26:59
Speaker 1: they should be able to have a gun if everybody
27:01
Speaker 1: else can have a gun. And you know, to their credit,
27:04
Speaker 1: some of the concurring justices, there was a concurrence by
27:07
Speaker 1: Justice Alito, joined by Justice Kagan, which is not typical
27:10
Speaker 1: lineup right, said look, you know, people use marijuana now
27:15
Speaker 1: the way that people drink, and it's been decriminalized, and
27:19
Speaker 1: you know most of the states federal government doesn't enforce,
27:21
Speaker 1: so this doesn't make any sense.
27:22
Speaker 3: So there's a kind of common sense idea there.
27:25
Speaker 1: The other sectend case is the one where they do
27:28
Speaker 1: seem to expand in sect emendic rights. That's the Hawaii case, right,
27:33
Speaker 1: in which Hawaii has a law that they enacted post
27:37
Speaker 1: Bruin that says, if you are a private property owner,
27:41
Speaker 1: we're going to presume you don't want people coming on
27:44
Speaker 1: your property with firearms unless you explicitly, either orally or
27:49
Speaker 1: in writing consent. And this was challenged on the ground that, well,
27:55
Speaker 1: you know, you know what about a gas station, private
27:58
Speaker 1: property owner, or a drug store supermarket. You know, when
28:01
Speaker 1: you apply this presumption, you're going to say that people
28:04
Speaker 1: that effectively can't carry their firearms in public.
28:07
Speaker 3: And the back and.
28:08
Speaker 1: Forth between the majority and the descent, primarily Justice Jackson
28:12
Speaker 1: in descent on this point is over whether this is
28:16
Speaker 1: really a regulation of firearms at all. Justice Jackson says, no, no, no,
28:19
Speaker 1: this is a regulation of property. Everybody agrees that private
28:23
Speaker 1: property owner can say you can't come on to my
28:25
Speaker 1: property with a gun. You could say you can't come
28:27
Speaker 1: onto my private property with a hat if you wanted to.
28:30
Speaker 1: And so you know what's the issue here, And the
28:33
Speaker 1: majority says no, No, this is a regulation of guns
28:36
Speaker 1: in the same way.
28:36
Speaker 3: And this is the line that Justice Barrot gives.
28:40
Speaker 1: In the same way that if the law said we're
28:44
Speaker 1: going to presume that people don't give permission to somebody
28:47
Speaker 1: to come on your property wearing a huge job, that
28:50
Speaker 1: would be religious discrimination.
28:52
Speaker 3: Well, this is a violation of your Second Amendent rights.
28:54
Speaker 3: And that sounds like a pretty good analogy, except that
28:58
Speaker 3: you know, the First Amendment is a kind of anti
29:01
Speaker 3: discrimination principle.
29:02
Speaker 1: It can't disclinate it the basis of religion. You can't
29:04
Speaker 1: censor by drawing distinctions based on speech. Second Amendment is
29:08
Speaker 1: mostly not an equality principle, it's a liberty principle. So
29:11
Speaker 1: I'm not sure how well that fits. But now you know,
29:14
Speaker 1: this is another category of laws that we know are
29:18
Speaker 1: going to be subject to this second event scrutiny.
29:21
Speaker 2: So there was a reference to religion there. I think
29:23
Speaker 2: the only case involving religion. This term was the one
29:27
Speaker 2: in which the Rastafarian inmates sued over the cutting of
29:31
Speaker 2: his dreadlocks, but the court said he couldn't sue prison
29:34
Speaker 2: officials for violating his religious rights. That was the first
29:38
Speaker 2: case in many years where the court didn't rule in
29:41
Speaker 2: favor of religious rights, and some people were speculating that
29:45
Speaker 2: it was because the rest of Farian religion was at
29:48
Speaker 2: issue rather than more mainstream religions, specifically Christian religions. Tell
29:54
Speaker 2: us why he lost.
29:56
Speaker 1: And that actually is mostly a reloop case religious Land
30:01
Speaker 1: Use and Institutionalized Persons Act rather than a free exercise case.
30:06
Speaker 1: So this is a Rasafaian who's in prison for a
30:10
Speaker 1: relatively minor drug offense. He's in prison for like a
30:12
Speaker 1: total of nine months, and they move him from one
30:15
Speaker 1: facility to another. When he gets to this new facility
30:17
Speaker 1: with not much time remaining on his sentence, he tells them,
30:21
Speaker 1: you know, they have a practice of shaving the heads
30:24
Speaker 1: of the prisoners.
30:25
Speaker 3: He tells them, hey, don't do that. That's against my religion.
30:28
Speaker 3: And he shows them a copy of a decision by
30:32
Speaker 3: the US Court of Appeals for the Fifth Circuit which
30:34
Speaker 3: is binding in this jurisdiction that says, yeah, that would
30:36
Speaker 3: violate Raluopa. And they do it anyway, and they throw
30:41
Speaker 3: the copy of the decision in the trash, so it's
30:44
Speaker 3: very overt.
30:44
Speaker 1: They know what they're doing. He sues the individual officers,
30:49
Speaker 1: and the Supreme Court says, you can't sue the individual
30:52
Speaker 1: officers under RALOOPA because Raloopa is passed pursuant to Congress's
30:59
Speaker 1: spending pass and it is in the nature of a contract.
31:03
Speaker 1: But it's a contract with the state. The state has
31:06
Speaker 1: agreed to be bound by Ralupa, but the individual officers haven't.
31:11
Speaker 1: And so in the same way that you can't hold
31:13
Speaker 1: somebody who doesn't sign a contract to the terms of
31:15
Speaker 1: some strangers contract, these officers are strangers to the contract.
31:20
Speaker 1: And so I see it as a case really about
31:23
Speaker 1: congressional power. They're narrowly reading the spending power, which is
31:28
Speaker 1: something that Congress often uses. So for example, the transgender
31:32
Speaker 1: athletes cases. The reason why Title nine might apply. The
31:37
Speaker 1: Court ends up saying it doesn't forbid it, but they
31:39
Speaker 1: don't say it doesn't apply. The reason might it applies
31:41
Speaker 1: is because Congress conditions the receipt of federal money by universities, colleges,
31:47
Speaker 1: elementary schools, et cetera. On accepting the anti discrimination principles.
31:52
Speaker 1: Same thing is true RALUPA. But now we're being told
31:55
Speaker 1: that under the spending power, Congress can't sub third parties
32:01
Speaker 1: to liability, and that could have implications much more broadly
32:05
Speaker 1: than with respect to this particular Rastafarian or even with
32:08
Speaker 1: respect to prisons, but across the board. I wrote a
32:12
Speaker 1: piece shortly after the decision on verdict, which is one
32:15
Speaker 1: of the places where I have my commentary on these things,
32:18
Speaker 1: saying that actually the Court ignored the possibility that this
32:23
Speaker 1: provision of reloop book could be valid under the Commerce
32:26
Speaker 1: clause because Congress doesn't just have the power directly to
32:29
Speaker 1: spend money. It has all sorts of other powers. The
32:32
Speaker 1: chief one it typically uses is the commerce power, and
32:36
Speaker 1: prisons are basically benefiting from interstate commerce.
32:40
Speaker 3: They are relying.
32:42
Speaker 1: On interstate commerce, and the activity of cutting somebody's hair
32:47
Speaker 1: is what counts as economic activity in the Court's cases.
32:50
Speaker 1: And there's a provision of RELOOPA that relies on the
32:52
Speaker 1: Commerce clause, which the Court just says, well, this doesn't apply,
32:55
Speaker 1: so we're not going to worry about it now. Maybe
32:57
Speaker 1: that's because of how the case was litigated, But to mind,
33:00
Speaker 1: you know, I'm willing to assume that they would have
33:03
Speaker 1: said the same thing if this were a religious Christian
33:07
Speaker 1: or some other religion that they favored.
33:09
Speaker 3: But to my mind, the real issue here is the
33:12
Speaker 3: scope of congressional power.
33:13
Speaker 2: So do you want to sum up, you know, your
33:16
Speaker 2: conclusions about the term.
33:18
Speaker 1: So I want to offer as a foil one alternate
33:22
Speaker 1: way of thinking about the term. Right, you might think,
33:24
Speaker 1: and I've seen some versions of this that on the
33:29
Speaker 1: issues that have been of long running concern to conservatives
33:34
Speaker 1: the conservative side, one on the voting rights, on Second
33:38
Speaker 1: Amendment rights, on you know, LGBT culture, war issues, presidential power,
33:44
Speaker 1: et cetera. But on the sort of Trump specific issues,
33:49
Speaker 1: the president didn't do so well. So, you know, tariffs
33:51
Speaker 1: have not been a long standing position of conservatives. Generally,
33:55
Speaker 1: conservatives have been for free trade prior to Trump, and
33:58
Speaker 1: so he loses on tariff's right. Citizenship not really on
34:02
Speaker 1: the table prior to the president's executive order on his
34:06
Speaker 1: first day of his second term.
34:07
Speaker 3: And so he loses on that, And I think that's
34:10
Speaker 3: sort of right, But I think it's important to understand
34:13
Speaker 3: The reason he loses is not because there's this rift
34:18
Speaker 3: between the sort of elite legal conservatives and Trump.
34:24
Speaker 1: There might be such a rift between Chief Justice Roberts
34:27
Speaker 1: and Trump, but you know, he's getting Thomas and Alito,
34:31
Speaker 1: as you said, in all of these cases, he's getting
34:34
Speaker 1: some combination of or such Kavanaugh, Barrett and some of
34:38
Speaker 1: these cases. And so the only reason he's losing in
34:41
Speaker 1: the cases he loses is because all the liberals vote
34:44
Speaker 1: against him, and then you know two or occasionally three.
34:47
Speaker 3: Of the conservatives also vote against.
34:49
Speaker 1: Him, and on the cases he wins, even when he's
34:53
Speaker 1: winning on traditional conservative issues, right, I think this court
34:59
Speaker 1: is is being willfully blind or at best hyperopic, which
35:05
Speaker 1: is the opposite of myopic. They're seeing off in the
35:08
Speaker 1: distance but not what's in front of them, so they're
35:10
Speaker 1: not seeing the immediate consequences of giving all of this
35:15
Speaker 1: presidential power, right, which is something they've wanted to expand
35:17
Speaker 1: for years, but giving it to this particular president who
35:21
Speaker 1: has shown that he and the people he appoints are
35:24
Speaker 1: going to abuse that power. And so to my mind,
35:27
Speaker 1: the story here is that Trump is winning, and it
35:33
Speaker 1: really doesn't matter whether he's winning because the Supreme Court
35:37
Speaker 1: likes what he's doing, or you know, they're pursuing their
35:40
Speaker 1: own agenda. They're at the very least allowing him to
35:44
Speaker 1: win and thus allowing the concentration of power, in my view,
35:48
Speaker 1: very dangerous hands.
35:49
Speaker 2: Thanks so much for taking us through this term, Mike.
35:52
Speaker 2: That's constitutional law professor Michael Dorf of Cornell Law School,
35:56
Speaker 2: and that's it for this edition of The Bloomberg Law Show.
35:59
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36:01
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36:13
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36:18
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