Latest / Bloomberg Law / Behind the SCOTUS Curtain & Chevron Gets the Win, Louisiana Gets the Loss

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Behind the SCOTUS Curtain & Chevron Gets the Win, Louisiana Gets the Loss · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: Chief Justice John Roberts has long cultivated an image of
0:12
Speaker 2: the Supreme Court as an institution above politics. Nine justices
0:18
Speaker 2: who reached their decisions based on the law alone.
0:22
Speaker 3: And you need to understand, well, it's because the Framers
0:25
Speaker 3: didn't want the courts to be making political decisions.
0:28
Speaker 1: Quite the contrary.
0:29
Speaker 2: But The New York Times has published leaked confidential memos
0:34
Speaker 2: between the justices, and they reveal a different side of Roberts,
0:38
Speaker 2: certainly not the umpire calling balls and strikes as he
0:42
Speaker 2: described in his confirmation hearings. The memos show a Chief
0:46
Speaker 2: Justice who pushed to block President Obama's signature environmental policy
0:52
Speaker 2: in five days, without oral arguments, without full briefing, and
0:57
Speaker 2: without input from the lower courts because, as he said,
1:00
Speaker 2: it was quote the most expensive regulation ever imposed on
1:04
Speaker 2: the power sector. And on February ninth of twenty sixteen,
1:09
Speaker 2: in a five to four vote along partisan lines, the
1:13
Speaker 2: Jauntices issued a one paragraph ruling halting Obama's clean Power plan.
1:19
Speaker 2: Was that the start of the now highly controversial shadow docket.
1:24
Speaker 2: Joining me is an expert in constitutional law, Harold Krant,
1:28
Speaker 2: a professor at the Chicago Kent College of Law. How So,
1:31
Speaker 2: The New York Times has published these until now secret
1:35
Speaker 2: memos about the five days before the Supreme Court issued
1:40
Speaker 2: an order blocking President Obama's Clean Power Plan. Tell us
1:45
Speaker 2: what happened.
1:46
Speaker 3: So, the Court never blocked the power plant on the merits,
1:51
Speaker 3: but rather used its power to decide to stop the
1:55
Speaker 3: action before they could even hear the case.
1:58
Speaker 4: And so they.
1:58
Speaker 3: Deployed their power to basically protect individuals in the United
2:04
Speaker 3: States from what they saw is overreaching by the Obama administration.
2:09
Speaker 4: So this is an.
2:09
Speaker 3: Overtly political move because they didn't like the power plan,
2:14
Speaker 3: and the memos evinced the fact that they thought that
2:17
Speaker 3: this was excessive power, that there shouldn't be this much
2:21
Speaker 3: of a drain on the economy in order to protect
2:26
Speaker 3: the environment.
2:27
Speaker 4: And so, you know, the.
2:28
Speaker 3: Way it reads is that the Supreme Quote was overtly
2:32
Speaker 3: political in deciding to resolve this case not on the merits,
2:36
Speaker 3: but rather simply on the basis of its emergency docket,
2:42
Speaker 3: thereby stopping the plan before it could be effectuated.
2:45
Speaker 2: So this was pushed through in five days, and some
2:49
Speaker 2: of the justices were in Europe, so it was all
2:52
Speaker 2: done by exchanging memos, and from your reading of those memos,
2:58
Speaker 2: did it seem like that she if Justice, was the
3:01
Speaker 2: one really pushing it through.
3:04
Speaker 3: And what astonishes me is that we know that for
3:07
Speaker 3: years the Chief Judice stood and said, integrity of the
3:11
Speaker 3: Court is my mission. This is the most important thing
3:13
Speaker 3: to me. So we have stature. Yet it was the
3:16
Speaker 3: Chief who decided to use the power of the Supreme
3:20
Speaker 3: Court to try to attain his political ends. So this,
3:23
Speaker 3: to me is what is so amazing, is that while
3:26
Speaker 3: the Chief seemed to have this public persona of respect
3:30
Speaker 3: and integrity of the court, he was the one that
3:32
Speaker 3: instigated the unorthodox, untraditional use of the court in order
3:38
Speaker 3: to accomplish a political result.
3:40
Speaker 2: Did it seem as if some of the justices didn't recognize,
3:45
Speaker 2: you know, the importance of what was happening here.
3:47
Speaker 3: In retrospect, I think we can all tell this is
3:50
Speaker 3: the start of the aggressive use by the Rabbers Court
3:53
Speaker 3: of the shadow docket.
3:54
Speaker 4: But the justices at the time didn't know that. They thought,
3:57
Speaker 4: maybe this is a one off.
3:59
Speaker 3: The court was not in session, they were in various
4:02
Speaker 3: places around the world, and so they could have said
4:05
Speaker 3: this is a one off a unique response that wouldn't
4:09
Speaker 3: create any kind of precedent. That's what it seemed to
4:11
Speaker 3: me from reading the memos. Obviously, now with a lens
4:14
Speaker 3: of history, we look back and say we can see
4:17
Speaker 3: a linear progression of the use of the Court's power
4:20
Speaker 3: from various political ends. Has become much more common. But
4:24
Speaker 3: at that time it was rare, and I don't think
4:26
Speaker 3: that justices realized what a precedent this could create.
4:30
Speaker 2: So the Chief Justice said that this was the most
4:34
Speaker 2: expensive regulation ever imposed on the power sector, too big, costly,
4:39
Speaker 2: and consequential for the Court not to act immediately. Yet
4:43
Speaker 2: no justice, not a liberal, not a conservative, ever mentioned
4:47
Speaker 2: the dangers on the opposite side of climate change.
4:51
Speaker 4: There's no discussion of climate change.
4:53
Speaker 3: There was no discussion of letting the challenges to the
4:56
Speaker 3: regulation play out in court. This wasn't a discussion of
5:00
Speaker 3: the usual legality of an administrative action. This was a
5:05
Speaker 3: political reaction to the Obama administration saying this is too extensive,
5:10
Speaker 3: too much, and no consideration of the equities on the
5:14
Speaker 3: other side.
5:15
Speaker 4: It's astonishing, the irony.
5:17
Speaker 2: So Justice Kennedy figures that you know, well, when we
5:21
Speaker 2: take this on the merits docket, it's going to end
5:23
Speaker 2: up being struck down anyway. But then Justice Scalia passed away,
5:28
Speaker 2: and so it would have been four to four, right,
5:31
Speaker 2: and so Obama's power plan would have gone into effect.
5:35
Speaker 3: Likely Obviously, we don't know because we're deprived of that
5:39
Speaker 3: knowledge because of how history played out.
5:41
Speaker 4: The other thing that's amazing about this is why the leak.
5:44
Speaker 3: Now, you know, is this a leak from clerks who
5:48
Speaker 3: have ported this material for ten years? Is this a
5:52
Speaker 3: leak from the Supreme Court justice that's more and more
5:55
Speaker 3: frustrated with how the court is acting. We don't know,
5:59
Speaker 3: but it's certainly suggests that tensions are aflame within the
6:04
Speaker 3: Supreme Court building.
6:05
Speaker 2: Well, we've seen that with the various justices. I mean,
6:08
Speaker 2: we saw Sodo Mayor criticizing Kavanaugh then coming out with
6:13
Speaker 2: an apology, and we'll talk later about Clarence Thomas. And
6:17
Speaker 2: we saw Justice Katanji Brown Jackson give an hour long
6:20
Speaker 2: speech at Yale Law School which basically, you know, took
6:24
Speaker 2: the shadow docket apart. So it's pretty much out in
6:28
Speaker 2: the open.
6:30
Speaker 3: Yeah, And this idea of you know, the friendship between
6:33
Speaker 3: RBG and Justice Scolia is you know, a thing of
6:36
Speaker 3: the distant past. And obviously these justices don't like each other.
6:40
Speaker 3: They're sniping at each other, and now they're arguably possibly
6:44
Speaker 3: making leads to the Supreme Court. So we don't have
6:46
Speaker 3: a very unified or collegial court.
6:48
Speaker 2: I've asked you often in the past, how much are
6:51
Speaker 2: the justices influenced by public discussions of the issues? Public discourse,
6:57
Speaker 2: and here they're relying on outside source is like a
7:01
Speaker 2: blog post and television interviews to push their points.
7:06
Speaker 3: And again, we try to teach our students, you know,
7:08
Speaker 3: the Supreme Court justices consider they deliberate, they're influenced by
7:14
Speaker 3: their predecessors, they try to understand the integrity of the
7:19
Speaker 3: legal process. And then we're confronted by these memos, the
7:24
Speaker 3: disparate memos that seem to suggest, oh, it's all about
7:27
Speaker 3: politics and our knee jerk reaction to what we think
7:30
Speaker 3: is dangerous for politics. So they're acting as politicians. So
7:34
Speaker 3: what then differentiates the Court from the other institutions is
7:39
Speaker 3: getting a little moneier here, And I think that's the
7:41
Speaker 3: real downside of what they've done, is to sap the
7:45
Speaker 3: Supreme Court of the respect that it should otherwise deserve.
7:49
Speaker 4: In our part time system.
7:51
Speaker 2: Yeah, And how many times have we heard the Chief
7:54
Speaker 2: Justice talk about the Supreme Court is not a political institution.
7:59
Speaker 2: We're different from the political branches. And here it's all
8:03
Speaker 2: about politics.
8:04
Speaker 4: It is.
8:05
Speaker 3: And again I can understand why people are disillusioned, because
8:10
Speaker 3: if the Court is thinking about politics, you know what
8:13
Speaker 3: gives them the advantage as opposed to those in Congress.
8:17
Speaker 2: Was this in any sense President Obama versus Chief Justice Roberts?
8:24
Speaker 2: Because I mean Obama was one of just twenty two
8:27
Speaker 2: Senators who voted against roberts confirmation, and here it seems
8:32
Speaker 2: like the Chief Justice is eager to assert the authority
8:36
Speaker 2: of the Supreme Court against Obama.
8:39
Speaker 3: I don't know how much of this is reaction to
8:43
Speaker 3: the friction between Chief Justice Roberts and President Obama. I
8:47
Speaker 3: think it's more about President Obama's policies that he just
8:50
Speaker 3: thought that the Democrat was wrongheaded in trying to sort
8:56
Speaker 3: of quickly change the ground in terms of climate change
9:01
Speaker 3: and limiting pollution, and saw his responsibility as the Court
9:06
Speaker 3: to do something about the rapid change that was at
9:11
Speaker 3: play within the Environmental Protection Agency.
9:14
Speaker 2: Do you think that there'll be any fallout from this
9:17
Speaker 2: publication of these notes?
9:20
Speaker 3: Well, we saw that the first Jobs decision, if you remember,
9:23
Speaker 3: was released by someone, and we knew what the top
9:26
Speaker 3: decision was going to say overruling their right to an abortion,
9:30
Speaker 3: and there was tighter security was imposed, but nothing really happened.
9:34
Speaker 3: This is again we don't know if the leak is
9:37
Speaker 3: from now or from ten years ago. There may be
9:40
Speaker 3: some more security, but I think now in this age,
9:43
Speaker 3: there won't be too many more steps that can be
9:46
Speaker 3: undertaken by the Court to prevent this kind of leaking.
9:50
Speaker 3: But the leaking isn't good for the court. Clearly, this
9:53
Speaker 3: is a court that has lost its civility but also
9:58
Speaker 3: its ability to be collegi.
10:00
Speaker 2: And also I'm wondering if since now we have this
10:03
Speaker 2: huge leak you mentioned the leak before, whether the justices
10:07
Speaker 2: will be more reluctant to put things into writing that
10:11
Speaker 2: can be leaked.
10:13
Speaker 4: Oh.
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Speaker 3: Absolutely, I think that if you know that you're rough
10:16
Speaker 3: drafting your comments Snyder or otherwise may end up in
10:20
Speaker 3: the New York Times, You're going to think twice before
10:23
Speaker 3: you write that down.
10:24
Speaker 4: And that's also not good for the court. Right.
10:25
Speaker 3: Sometimes it's really important to have a sharply worded memo,
10:29
Speaker 3: some kind of comments about the wisdom of a particular
10:32
Speaker 3: argument that another justices may write, and the justices will
10:36
Speaker 3: be more restrained in showing candor for fear of the disclosure.
10:40
Speaker 2: Okay, stay with me. Hal Coming up next, We're going
10:44
Speaker 2: to talk about a speech by Justice Clarence Thomas last
10:49
Speaker 2: week that was supposed to commemorate the two hundred and
10:52
Speaker 2: fiftieth anniversary of the Declaration of Independence. It started out
10:57
Speaker 2: that way and then devolved into a harsh critique of progressivism.
11:04
Speaker 2: I'm June Grosso and you're listening to Bloomberg. This year
11:11
Speaker 2: marks the two hundred and fiftieth anniversary of our nation's independence,
11:16
Speaker 2: and last Wednesday, Justice Clarence Thomas gave an hour long
11:20
Speaker 2: speech at the University of Texas at Austin Law School
11:24
Speaker 2: to talk about the Declaration of Independence and its importance
11:28
Speaker 2: in American history. But the speech devolved into a harsh
11:32
Speaker 2: critique of progressivism.
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Speaker 5: Progressivism seeks to replace the basic premises of the Declaration
11:39
Speaker 5: of Independence and hence our form of government. It holds
11:44
Speaker 5: that our rights and our dignities come not from God
11:48
Speaker 5: but from government. It requires of the people a subservience
11:54
Speaker 5: and weakness incompatible with a Constitution premise on the transcendent
11:59
Speaker 5: or origin of our rights.
12:01
Speaker 2: I've been talking to Professor Harold Krant other Chicago Kent
12:05
Speaker 2: College of Law, how this was a very strange speech.
12:09
Speaker 2: Thomas said that Stalin, Hitler, Mussolini, and Mao were all
12:14
Speaker 2: intertwined with the rise of progressivism, as was racial segregation, eugenics,
12:20
Speaker 2: and other evils.
12:22
Speaker 3: I do think there's a tie here with what Justice Thomas.
12:27
Speaker 3: His speech is strange speech at Texas because both with
12:31
Speaker 3: respect to the Roberts decision and with respect to Thomas,
12:37
Speaker 3: there is such a deep seated hatred for the administrative state,
12:41
Speaker 3: you know, and Justice Thomas calls it progressivism. He says
12:45
Speaker 3: that it didn't start with President Wilson, but he claims
12:48
Speaker 3: it did. But nonetheless, what he's talking about is this
12:51
Speaker 3: idea of these experts and government, and both Chief Justice
12:55
Speaker 3: Roberts and Justice Thomas sort of events a real distrust
13:00
Speaker 3: for anybody who believes in bureaucratic government, anybody who relies
13:05
Speaker 3: upon the government to actually respond to our nation's woes
13:11
Speaker 3: and to try to help dig get the country.
13:14
Speaker 2: And then it devolved into blaming progressives for all the
13:19
Speaker 2: ills of society. I mean he said that Stalin, Hitler, Mussolini,
13:25
Speaker 2: and now we're all in intertwine with the rise of progressivism,
13:28
Speaker 2: as was racial segregation, eugenics, and other evils.
13:33
Speaker 3: I mean, it's frightening that a Supreme Court justice would
13:37
Speaker 3: say this, And that's the first thing to note, because
13:39
Speaker 3: there are so many things that they're wrong with the
13:42
Speaker 3: comment even about Wilson and progressivism, let alone about Mao
13:48
Speaker 3: and Hitler and the others, because that would happened with totalitarianism.
13:53
Speaker 4: They don't trust bureaucrats either.
13:56
Speaker 3: They trust only themselves, and we know about that from
13:59
Speaker 3: our own current existence in the United States.
14:03
Speaker 1: Right.
14:03
Speaker 3: It's not that President Trump is relying upon bureaucrats. He
14:07
Speaker 3: relies upon himself. And that's the same thing true with
14:10
Speaker 3: the world figures listed by Justice Thomas. So this was
14:14
Speaker 3: a screed. It's a screed divorced of any kind of
14:19
Speaker 3: real salience in terms of how the world is ordered
14:22
Speaker 3: and what motivated these national leaders. So it's worriesome from
14:26
Speaker 3: a Supreme Court justice in particular, that he would be
14:30
Speaker 3: so divorced from any kind of measured assessment of the
14:34
Speaker 3: role of progressivism in our country. I think a lot
14:38
Speaker 3: of people would say, a lot of good came from
14:40
Speaker 3: progressivism in our country, even if there was some negative
14:44
Speaker 3: aspects as well.
14:45
Speaker 4: But one has to wonder.
14:47
Speaker 2: It sort of echoes the way he interprets history in
14:51
Speaker 2: his opinions, picking and choosing from what he wants and
14:55
Speaker 2: which often, in my mind, leads to a tortured view
15:00
Speaker 2: of history. And as you mentioned here, he did it
15:03
Speaker 2: with President Wilson and progressivism.
15:05
Speaker 3: Yeah, progressivism started in the late nineteenth century. It's reaction
15:09
Speaker 3: against Robert Barns and against the huge corporations that dominated
15:14
Speaker 3: the United States at that time, and so it was
15:17
Speaker 3: a reform movement. Now, obviously today in the Supreme Court,
15:21
Speaker 3: there's a lot of skepticism about entrenched bureaucracy and whether
15:25
Speaker 3: the administrative agencies can do good or bad for people
15:28
Speaker 3: and for companies. But you know, again, progressivism was a
15:32
Speaker 3: constraint upon large corporations, and many people think that mister
15:37
Speaker 3: of agencies need to continue that kind of regulation in
15:42
Speaker 3: order to prevent sort of rapacious organizations from hurting individuals
15:48
Speaker 3: in this country where they're farmers or small business folks,
15:50
Speaker 3: et cetera.
15:51
Speaker 4: Et cetera.
15:52
Speaker 2: This is, you know, beyond his speech. But I've always
15:56
Speaker 2: wondered how Justice Thomas, who was the beneficiary of firmative action,
16:03
Speaker 2: as was Justice sort of mayor why is he so conservative,
16:08
Speaker 2: I mean as far right as you can get. Yeah.
16:11
Speaker 3: No, I think part of it is Justice Thomas has
16:13
Speaker 3: always been proud of what he's done to succeed in
16:16
Speaker 3: this environment, and he doesn't want to be seen as
16:19
Speaker 3: a product of affirmative action. He wants it to be
16:22
Speaker 3: based upon his own merit, and he has accomplished a
16:25
Speaker 3: great deal in his career, there's no question about it.
16:29
Speaker 3: But I think that his some of his visceral reaction
16:32
Speaker 3: of posing affirmative action is just because of the fact
16:35
Speaker 3: that he doesn't think anybody should be a sort of
16:38
Speaker 3: assumed to be an affirmative action baby, but rather they
16:41
Speaker 3: want to be seen as pulling their own weight, as
16:45
Speaker 3: rising because of their own hard work and intelligence, and
16:49
Speaker 3: certainly he's evinced those in his career.
16:51
Speaker 4: I'd have another comment.
16:53
Speaker 3: I think that you wonder with a speech like this,
16:56
Speaker 3: whether Justice Thomas knows that he has one year left
17:01
Speaker 3: on the court if he wants to give President Trump
17:03
Speaker 3: another nomination. And I think Alito would be in the
17:07
Speaker 3: same vein, and they are considering and playing in their
17:11
Speaker 3: own minds, their own individual interests in staying on the Court,
17:15
Speaker 3: but their political interests of allowing President Trump to have
17:19
Speaker 3: one or two more Supreme Court nominees before the end
17:22
Speaker 3: of the term. So we may be seeing this kind
17:25
Speaker 3: of behavior in this kind of speech because he's sort
17:28
Speaker 3: of wrestling with himself about what is the right thing
17:31
Speaker 3: to do in terms of his political leanings.
17:34
Speaker 2: I want to turn back to the shadow docket where
17:37
Speaker 2: we started. We've seen many of the liberal justices criticize
17:41
Speaker 2: what's happening with the shadow docket in their opinions, but
17:45
Speaker 2: also lately a lot in public. There was an hour
17:48
Speaker 2: long speech by Justice Katanji Brown Jackson at Yale where
17:52
Speaker 2: she really took it apart. And now we have these
17:55
Speaker 2: leaked memos with all this sunlight on the shadow docket,
18:00
Speaker 2: do you think that will see less that the Supreme
18:02
Speaker 2: Court will act more judiciously, shall we say, with shadow
18:07
Speaker 2: docket decisions, for example, they've turned some of them into
18:11
Speaker 2: regular cases, like the birthright citizenship.
18:15
Speaker 4: Yeah.
18:15
Speaker 3: I think that Justice Jackson's speech, in particular, they shed
18:19
Speaker 3: light on something that only some professors have been talking
18:23
Speaker 3: about four years. What are the proper standards to use
18:27
Speaker 3: in terms of the stay motions that go before the
18:30
Speaker 3: Supreme Court. How do you balance equities when there's no
18:33
Speaker 3: time for a full briefing on the matter. And I
18:37
Speaker 3: think that the public discussion that has followed those kinds
18:40
Speaker 3: of events is only for good, and I think it
18:43
Speaker 3: will at least modify to some extent shadow docket with
18:46
Speaker 3: the hope of taking away the shadow, making things more observable, transparent,
18:51
Speaker 3: so that people understand what the Court can do, and
18:55
Speaker 3: that the traditional sort of idea of balance of the
18:58
Speaker 3: equities and the merits can be seen as something every
19:02
Speaker 3: judge has to do, whether you're on a preliminary in
19:04
Speaker 3: junction in the trial court or whether you're in the
19:07
Speaker 3: Supreme Court deciding what to do when you're presented with
19:10
Speaker 3: an emergency stay. So I don't think there's going to
19:13
Speaker 3: be a quick change, but I think that the public
19:17
Speaker 3: discussion and the backlash to what The New York Times
19:21
Speaker 3: has published will conceivably require the Court to act in
19:25
Speaker 3: a more principled, consistent manner, and that's good for all
19:28
Speaker 3: of us.
19:29
Speaker 2: And also there is the fact that the lower courts
19:32
Speaker 2: are confused themselves about a shadow docket opinion, what part
19:37
Speaker 2: of it is precedent binding? Supreme Court President that they
19:41
Speaker 2: have to follow, and Justice gorse It said, you have
19:43
Speaker 2: to follow our shadow docket decisions just like any other decision.
19:47
Speaker 2: But you know, when there's no explanation of what it's
19:50
Speaker 2: based on, the lower courts are left wondering and not
19:54
Speaker 2: knowing what to apply.
19:55
Speaker 3: Really, I was shocked by Justice course or just content.
19:59
Speaker 3: I mean, how can anybody follow the shadow docket as
20:03
Speaker 3: a precedent when there's been no argument, when the Court
20:06
Speaker 3: is not being clear about its view of the merits.
20:09
Speaker 3: It's really, I think irresponsible for Justice Gorsuch to make
20:13
Speaker 3: that claim. But again, you understand it because the Court
20:16
Speaker 3: is trying to change people's minds and change lower court
20:20
Speaker 3: decisions through the shadow docket, and that's just not appropriate.
20:23
Speaker 3: That's why we have transparency, oral arguments, written decisions, so
20:27
Speaker 3: that people can really focus and know when a court's
20:31
Speaker 3: decision is binding and when it's not.
20:33
Speaker 2: Justice Soda Mayor a couple of weeks ago, the attention
20:37
Speaker 2: was focused on what she said about Kavanaugh, but she
20:40
Speaker 2: also said about the shadow docket. She sort of said
20:43
Speaker 2: what you just said, which is we've brought it upon ourselves.
20:47
Speaker 2: And what Justice Jackson said, because they've been granting these
20:50
Speaker 2: and so the more wins, the more emergency petitions you're
20:54
Speaker 2: going to have. So she said, we brought it on ourselves.
20:58
Speaker 4: You know, the Court certainly has.
21:00
Speaker 3: It's basically, it was so extraordinary for the Court to
21:05
Speaker 3: issue any kind of decision that wasn't on the merits
21:11
Speaker 3: before the last ten years. But the signal that the
21:14
Speaker 3: Court has given is come, if you're really upset, come
21:18
Speaker 3: to us, and if we happen to agree with you politically,
21:20
Speaker 3: we may enter the fray even before we can have
21:23
Speaker 3: a full decision. Now, obviously, in terms of an emergency,
21:27
Speaker 3: the Court has granted Schara before judgment, but that's to
21:31
Speaker 3: consider a case on the merits, not to engage in
21:34
Speaker 3: this sort of slap dash decision denying or approving of
21:38
Speaker 3: a stay for reasons that are unarticulated. That's new that
21:43
Speaker 3: was started by I gathered by the power plant decision
21:46
Speaker 3: of twenty sixteen, and we are here and we've seen
21:50
Speaker 3: that custom continue and it's just not good for transparency,
21:55
Speaker 3: it's not good for respect for the court. And I
21:58
Speaker 3: hope that the Court will be push to sort of
22:01
Speaker 3: revise its policies and be a little more consistent with
22:05
Speaker 3: which kind of equity principles should demand a stay and
22:10
Speaker 3: which should not.
22:12
Speaker 2: Otherwise, and I'm sure the Chief thinks about his legacy
22:16
Speaker 2: a great deal. Otherwise, the Roberts Court will be known
22:20
Speaker 2: as the court that the shadow docket developed under. And
22:23
Speaker 2: that's not something I think that any justice would want.
22:27
Speaker 3: They brought it on themselves, and the Chief Justice again
22:31
Speaker 3: the irony, being the one who cared most about the
22:33
Speaker 3: reputation and the statue of the court, and he's the
22:36
Speaker 3: one that led the court down this path.
22:39
Speaker 4: Amazing.
22:39
Speaker 2: This is in the category of you can't make these
22:42
Speaker 2: things up. Thanks so much, Al, It's always great to
22:44
Speaker 2: have you on. That's Professor Harold Krent of the Chicago
22:48
Speaker 2: Kent College of Law. Coming up next on the Bloomberg
22:51
Speaker 2: Law Show. The Supreme Court has handed Chevron a victory,
22:56
Speaker 2: but Louisiana and the environment a loss. I'm June Grosso
23:01
Speaker 2: and you're listening to Bloomberg.
23:04
Speaker 1: This is Bloomberg Law with June grosseo from Bloomberg Radio.
23:09
Speaker 2: The Supreme Court handed a huge win to oil and
23:13
Speaker 2: gas companies fighting the lawsuits over coastal land loss and
23:17
Speaker 2: environmental degradation in Louisiana. A unanimous decision gives the companies
23:23
Speaker 2: a new day in federal court after a state jury
23:27
Speaker 2: had ordered Chevron to pay upwards of seven hundred and
23:31
Speaker 2: forty million dollars to clean up damage to the state's coastline,
23:35
Speaker 2: finding it had violated Louisiana's regulations governing coastal resources for
23:41
Speaker 2: decades by failing to restore wetlands impacted by dredging canals,
23:46
Speaker 2: drilling wells, and billions of gallons of wastewater dumped into
23:51
Speaker 2: the marsh. The case is one of dozens of lawsuits
23:54
Speaker 2: filed in twenty thirteen alleging that oil giants, including Chevron
23:59
Speaker 2: and A, violated state environmental laws for decades. Joining me
24:05
Speaker 2: is an expert in environmental law, Pat Parento, a professor
24:09
Speaker 2: at the Vermont Law and Graduate School. Pat, this was
24:12
Speaker 2: about the venue or where the lawsuit should be heard
24:17
Speaker 2: in federal court or state court. Explain why that matters
24:21
Speaker 2: to Chevron and the oil companies.
24:23
Speaker 1: For the oil companies, they have this belief that they're
24:28
Speaker 1: going to get a better deal in federal court than
24:31
Speaker 1: they would get in state court. I'm not sure that's true.
24:34
Speaker 1: I guess we will find out with the next stage
24:38
Speaker 1: of the Placamines Parish case. But here's the thing. Federal
24:44
Speaker 1: courts apply state law. When a case is removed from
24:48
Speaker 1: state court to federal court. The federal courts under the
24:52
Speaker 1: eerie doctrine which we all learn in law school, a
24:55
Speaker 1: federal courts must apply the controlling state law. And that's
24:59
Speaker 1: both statutory law and common law, both of which are
25:04
Speaker 1: fairly distinct in Louisiana. And so the law doesn't change
25:10
Speaker 1: when you change venue, and the facts don't change. So
25:15
Speaker 1: the reason that this case got to the Supreme Court
25:19
Speaker 1: is because the oil companies lost in the state court
25:24
Speaker 1: to the tune of seven hundred and seventy four million dollars. Now,
25:29
Speaker 1: there are a dozen or more other cases pending, so
25:33
Speaker 1: the final price tag for all this is enormous. But
25:37
Speaker 1: here's the thing. The allegation is that the companies were
25:42
Speaker 1: violating state law repeatedly, deliberately after being warmed. They were
25:49
Speaker 1: discharging highly contaminated water into the marsh. They were not
25:54
Speaker 1: restoring and recovering the marsh. They weren't even getting the
25:57
Speaker 1: permits they were required to get. And this is over
26:00
Speaker 1: a very long period of time. So, yeah, the companies
26:05
Speaker 1: think they might do better in federal court. But the
26:08
Speaker 1: jury in federal court is going to be Louisiana's who've
26:12
Speaker 1: been living with this, and the law, as I say,
26:15
Speaker 1: will be Louisiana law. So the companies may be whistling
26:20
Speaker 1: in the dark with this idea that they're going to
26:22
Speaker 1: win because it's moved to federal court.
26:25
Speaker 2: And the Louisiana Attorney General said that it was a
26:28
Speaker 2: jury from one of the most conservative pro oil and
26:32
Speaker 2: gas communities in the country. And it doesn't matter whether
26:35
Speaker 2: the case is in state court of federal court. I'm
26:38
Speaker 2: confident the outcome will be the same. So the argument
26:41
Speaker 2: is that back in World War Two they were working
26:46
Speaker 2: for the government. Is that the basic argument?
26:49
Speaker 1: Yes, yes, it is. And the idea was that the
26:52
Speaker 1: companies were refining the oil that they were taking from
26:56
Speaker 1: the Gulf and turning it into fuel for them military
27:00
Speaker 1: airplanes and so forth. And you know, the idea that
27:06
Speaker 1: these companies are still agents of the federal government sixty
27:11
Speaker 1: years later is crazy and a sort of a common
27:15
Speaker 1: sense way of looking at it. I mean, I read
27:17
Speaker 1: the opinion, I understand the kind of anal analysis that
27:24
Speaker 1: we sometimes see with statutory language. In this case, the
27:29
Speaker 1: words relating to well, yeah, says Justice Thomas, the oil
27:35
Speaker 1: and gas development that's ongoing in the Gulf is quote
27:40
Speaker 1: related to the original contracts requiring that the oil be
27:46
Speaker 1: refined into fuel. But boy, is that a stretch for
27:51
Speaker 1: ordinary Americans to see the law working in that way.
27:55
Speaker 1: And here's another thing that strikes me. There's something wrong
27:59
Speaker 1: with our system, our judicial legal system, where we have
28:04
Speaker 1: to wait years with a trial and a verdict before
28:10
Speaker 1: we get an answer to the question which court were
28:13
Speaker 1: we supposed to be in? I mean, why couldn't you
28:16
Speaker 1: have either gotten that answer more expeditiously or in the alternative,
28:22
Speaker 1: why couldn't the court have said, sorry, oil companies, it's
28:27
Speaker 1: too late in the day for you to be arguing
28:30
Speaker 1: that this case belonged in federal court. After all the
28:33
Speaker 1: effort that went into the state court verdict.
28:38
Speaker 2: Again, you took away one of my questions. You answered
28:41
Speaker 2: it before. That's fine, But what was surprising to me
28:45
Speaker 2: is that it was a unanimous verdict eight to zero.
28:49
Speaker 2: Because Justice Alito recused himself because he owned stock in
28:54
Speaker 2: I think it's kinicco Phillips. Why didn't the liberal justices
28:59
Speaker 2: say this doesn't sound right.
29:01
Speaker 1: Yeah, I mean they knew they were going to lose,
29:04
Speaker 1: I suppose, but that's the case oftentimes. Maybe they thought, well,
29:10
Speaker 1: in a technical you know, sort of which court, which
29:13
Speaker 1: venue question like this, maybe we'll side with our more
29:17
Speaker 1: conservative colleagues in the vain hope. I think that they
29:22
Speaker 1: will someday come our way on a close call. Maybe
29:26
Speaker 1: that's what was going on. But frankly, the fact that
29:30
Speaker 1: no one bothered on the court, bothered to call out
29:34
Speaker 1: the notion that there is still some kind of principal
29:39
Speaker 1: agent relationship between these companies today and what happened in
29:45
Speaker 1: World War Two. That strikes me, as you know, hard
29:49
Speaker 1: to reconcile, hard to understand the logic and the rationale
29:56
Speaker 1: of a result like this. Again, just think of all
29:59
Speaker 1: the effort it went into the case. There wasn't any
30:02
Speaker 1: suggestion by the way that the companies aren't liable. This
30:06
Speaker 1: isn't like some of the other cases that we've talked
30:09
Speaker 1: about where there's a question of federal law preempting state law.
30:13
Speaker 1: That wasn't an issue here, And the Court seems to
30:17
Speaker 1: be saying, we don't really care about the fact that
30:20
Speaker 1: you've invested all this time and effort to get this verdict.
30:24
Speaker 1: We're just going to make you go back to square
30:26
Speaker 1: one and do it all over again.
30:29
Speaker 2: And also, this reverses a decision of the Fifth Circuit, which,
30:34
Speaker 2: as you know, is a very very very conservative court.
30:40
Speaker 1: Yeah, if you can't win in the Fifth Circuit, you
30:43
Speaker 1: should turn in your law license. But when it went
30:46
Speaker 1: on bank to the full Fifth Circuit, the vote was
30:50
Speaker 1: much closer, but it was still a majority, as you say,
30:54
Speaker 1: of the most conservative court in the country next to
30:57
Speaker 1: the US Supreme Court. And you know the fact that
31:00
Speaker 1: a majority of those judges thought, now, I don't think
31:04
Speaker 1: we should, you know, toss out the verdict. You know,
31:07
Speaker 1: this jury sat for months and heard all this testimony
31:12
Speaker 1: and sorted.
31:12
Speaker 5: It all out.
31:13
Speaker 1: We're not just gonna throw that out on the you know,
31:17
Speaker 1: a transparent attempt by the oil companies to force the
31:21
Speaker 1: state and the parishes to go back through the gauntlet
31:27
Speaker 1: of litigation over again because delay works in their favor.
31:31
Speaker 1: They're laughing all the way to the bank over this.
31:34
Speaker 1: Maybe they are thinking someday there'll be a day of reckoning,
31:38
Speaker 1: but not today, and not as long as we can
31:41
Speaker 1: find ways of avoiding it.
31:43
Speaker 2: The court vacated and remanded the Fifth Circuit's decision. So
31:49
Speaker 2: then does this reverse that seven hundred and forty plus
31:53
Speaker 2: million dollar verdict that Louisiana got it?
31:57
Speaker 1: Does it throws it out? And any other question is
32:00
Speaker 1: what happens to all the other cases that are pending
32:03
Speaker 1: from the other parishes coastal communities in Louisiana. Again, there's
32:08
Speaker 1: over a dozen of these cases. Do they all have
32:11
Speaker 1: to go to federal court? Answer? Probably yes? And how
32:15
Speaker 1: is that going to be managed? You had these individual
32:18
Speaker 1: cases proceeding in state court with different plaintiffs, different parishes
32:25
Speaker 1: bringing them, and so the claims are going to be similar,
32:29
Speaker 1: but the facts are going to be different in terms
32:31
Speaker 1: of the damage and so forth. So are you going
32:33
Speaker 1: to then smush all of these cases into one in
32:38
Speaker 1: the federal court? How is the federal court supposed to
32:41
Speaker 1: manage a situation like this? Are they going to break
32:44
Speaker 1: these cases into smaller units? Are they going to have
32:48
Speaker 1: what sometimes you have in these mass tort cases, sort
32:51
Speaker 1: of example cases, and then you get rulings in an
32:55
Speaker 1: example case and that carries forward into other cases. The
32:59
Speaker 1: case Mann challenge that this kind of a decision presents
33:03
Speaker 1: as significant.
33:04
Speaker 2: So could you explain that a legal term you used.
33:08
Speaker 1: Smush, Yeah, consolidate.
33:11
Speaker 2: Yes, smush actually sounded much better. So Pat tell us
33:17
Speaker 2: about the damage to the coastline that the parishes are
33:20
Speaker 2: suing over.
33:21
Speaker 1: So they're oil companies in their quest to extract, you know,
33:26
Speaker 1: every molecule of crude oil they can from the gulf,
33:29
Speaker 1: they have to do a bunch of things. They have
33:31
Speaker 1: to dig these enormous canals to get access to the
33:35
Speaker 1: gulf and to bring rigs, you know, take them out
33:38
Speaker 1: to the gulf and bring them in when they're storms
33:40
Speaker 1: and things like that. So there's constant back and forth
33:43
Speaker 1: of vessel traffic and equipment and so forth. As these
33:47
Speaker 1: canals over time widen. This is a phenomenon that if
33:52
Speaker 1: you had a satellite imagery you could see it instantaneously.
33:56
Speaker 1: And these canals that start off, I don't know, one
33:58
Speaker 1: hundred yards wide, they can become a half a mile wide,
34:01
Speaker 1: and that's destroying the marsh. So that's one. Then they're
34:05
Speaker 1: all this process water, all this chemicals and so forth
34:09
Speaker 1: that they're using in the oil and gas extraction process
34:14
Speaker 1: that gets discharged into the marsh that kills the marsh,
34:18
Speaker 1: and so Louisiana law says you're supposed to get permits
34:22
Speaker 1: for these various activities canal construction, discharge of polluted water,
34:29
Speaker 1: and they didn't do that. They're not denying that they
34:32
Speaker 1: didn't do that. And then they're also required to restore
34:36
Speaker 1: marsh that has been damaged from their activities. They didn't
34:39
Speaker 1: do that either. So three different ways in which the
34:43
Speaker 1: companies have been so far found liable for violating state
34:47
Speaker 1: law causing this kind of damage. And again that's not
34:51
Speaker 1: going to change. The law is not going to change.
34:53
Speaker 1: The facts that were asserted in the state courts are
34:56
Speaker 1: going to be the same facts that are asserted in
34:59
Speaker 1: federal The rules of evidence differ slightly between states in
35:05
Speaker 1: federal court, but essentially the same kind of evidence provided
35:09
Speaker 1: the expert testimony is accepted in federal court, and there
35:13
Speaker 1: are rules about that as well. But nothing I've seen
35:16
Speaker 1: suggests that this evidence is going to be precluded or
35:19
Speaker 1: barred from the federal case. So we're just going to
35:22
Speaker 1: have a deja vous redo what's already been done.
35:26
Speaker 2: And I want to point out that this litigation in
35:29
Speaker 2: Louisiana crosses political lines. You have a Republican ag and
35:34
Speaker 2: the Republican governor backed the suits when he was AG.
35:38
Speaker 1: Yes, and I was at a conference at Tulane listening
35:42
Speaker 1: to the backstory on this case. You know, the politics
35:45
Speaker 1: of this are incredibly difficult, right, So no surprise or
35:50
Speaker 1: maybe a bulletin for some Louisiana is an oil and
35:54
Speaker 1: gas state, and these communities have benefited from oil and
35:58
Speaker 1: gas development, jobs, money, tax revenue. So it's not as if,
36:04
Speaker 1: you know, you've got a bunch of Sierra Clubbers down
36:08
Speaker 1: there in Louisiana bringing lawsuits. You know, these are communities
36:11
Speaker 1: that understand the value of oil and gas but are
36:14
Speaker 1: simply saying there's a right way to do it and
36:17
Speaker 1: a wrong way to do it, and the way you
36:19
Speaker 1: did it was wrong.
36:21
Speaker 2: So what happens next.
36:23
Speaker 1: Next you see these cases going to federal court in
36:26
Speaker 1: the probably the Southern District of Louisiana. You know there's
36:30
Speaker 1: gonna be questions about how much of the evidence that's
36:32
Speaker 1: already been adduced in the state case could possibly be admitted.
36:37
Speaker 1: I'm sure the lawyers are right now trying to figure
36:40
Speaker 1: out the plaintiffs lawyers, the Attorney general and others are
36:43
Speaker 1: trying to figure out do we really have to redo everything?
36:47
Speaker 1: I don't think the oil companies are going to stipulate
36:50
Speaker 1: too much, but is there a way to get some
36:53
Speaker 1: of this evidence into federal court without having to, you know,
36:57
Speaker 1: reinvent the wheel. I don't know enough of about how
37:00
Speaker 1: that kind of litigation works to judge how that's going
37:04
Speaker 1: to be done. You know, right now, the assumption is
37:08
Speaker 1: you're going to have to pick a jury, You're going
37:12
Speaker 1: to have to update all of the information, which means
37:15
Speaker 1: the damages are going to be increased from what they
37:18
Speaker 1: were in the state court and so forth. So there'll
37:21
Speaker 1: be supplemental pleadings and motions and so forth, the usual
37:24
Speaker 1: kind of litigation stuff. But eventually you're going to have
37:28
Speaker 1: a trial in front of a jury, and now you're
37:31
Speaker 1: going to start over and try to impanel a neutral
37:34
Speaker 1: jury that hasn't heard anything about any of this stuff.
37:38
Speaker 1: It just boggles the mind to think about why is
37:41
Speaker 1: this so complicated? You know, if there's a claim that
37:45
Speaker 1: the company's violated state law, why can't you adjudicate that
37:49
Speaker 1: once in one court and be done with it. But
37:52
Speaker 1: that's where we are today. We're going to have to
37:54
Speaker 1: do it again.
37:55
Speaker 2: So it's thirteen years of litigation and countings for your insights. Pat,
38:01
Speaker 2: that's Professor Pat Parento of the Vermont Law and Graduate School.
38:06
Speaker 2: And that's it for this edition of The Bloomberg Law Show.
38:08
Speaker 2: Remember you can always get the latest legal news on
38:11
Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
38:15
Speaker 2: and at www dot bloomberg dot com slash podcast, Slash Law,
38:21
Speaker 2: And remember to tune into The Bloomberg Law Show every
38:23
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
38:27
Speaker 2: and you're listening to Bloomberg