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Weekend Law: SCOTUS Term Analysis & What's Next for Sean 'Diddy' Combs · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
• 0:09
  Speaker 1: It's a great victory for Sean Combs. It's a great
• 0:12
  Speaker 1: victory for the jury system.
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  Speaker 2: You saw that the Southern District of New York prosecutors
• 0:18
  Speaker 2: came at him with all that they had.
• 0:21
  Speaker 3: It was indeed a resounding victory for Sean Diddy Combs
• 0:25
  Speaker 3: and a resounding loss for federal prosecutors. After more than
• 0:30
  Speaker 3: six weeks of sometimes graphic and emotional testimony, the jury
• 0:34
  Speaker 3: acquitted Combs of the most serious charges against him, racketeering, conspiracy,
• 0:40
  Speaker 3: and sex trafficking, and convicted him only of the lesser
• 0:43
  Speaker 3: charges of transportation to engage in prostitution. After the verdict
• 0:48
  Speaker 3: was read, Combs mouthed the words thank you to the jurors,
• 0:53
  Speaker 3: dropped to his knees, and prayed with good reason. Instead
• 0:57
  Speaker 3: of facing a sentence of life in prison, he now
• 1:00
  Speaker 3: likely faces no more than six years, although the decision
• 1:04
  Speaker 3: on his sentence will ultimately be up to the judge.
• 1:08
  Speaker 3: My guest his former federal prosecutor, Robert Mintz, a partner
• 1:11
  Speaker 3: maccarter and English Bob. He was convicted of two felonies,
• 1:16
  Speaker 3: but Combs and his lawyers were elated with the verdict.
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  Speaker 4: Given the charges he was potentially facing, which included up
• 1:24
  Speaker 4: to life in prison for the racketeering conspiracy and a
• 1:28
  Speaker 4: minimum sentence of fifteen years to life for sex trafficking.
• 1:32
  Speaker 4: The fact that he was only convicted of two counts
• 1:35
  Speaker 4: of transportation to engaging prostitution can't be viewed as anything
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  Speaker 4: other than a win by the defense and a bitter
• 1:42
  Speaker 4: loss for prosecutors.
• 1:44
  Speaker 3: So the top count racketeering conspiracy, the charge has historically
• 1:49
  Speaker 3: been used to take down mob bosses like John Gotti.
• 1:52
  Speaker 3: Did the prosecutors overcharge him with this count?
• 1:56
  Speaker 4: Well, I think that's going to be the question that
• 1:58
  Speaker 4: prosecutors will have to ask themselves when they look back
• 2:01
  Speaker 4: on this case, whether or not it was overcharged with
• 2:04
  Speaker 4: the rico conspiracy. Now, the rico conspiracy, as you say,
• 2:08
  Speaker 4: has been used traditionally in order to prosecute organized crime figures,
• 2:13
  Speaker 4: but it has been used more broadly in recent years
• 2:16
  Speaker 4: and was used in a high profile case just a
• 2:19
  Speaker 4: couple of years ago in the R. Kelly case where
• 2:23
  Speaker 4: that hip hop artist was also charged with RICO and
• 2:25
  Speaker 4: sex trafficking in twenty twenty one, and in that instance,
• 2:29
  Speaker 4: prosecutors did get a conviction, but here jurors ultimately concluded
• 2:33
  Speaker 4: that the Rico conspiracy was overcharged, that the prosecution did
• 2:39
  Speaker 4: not meet the burden of showing that Sean Combs had
• 2:42
  Speaker 4: used his business empire as a vehicle in orders to
• 2:47
  Speaker 4: commit further acts and in order to force his former
• 2:51
  Speaker 4: girlfriends into performing sexual acts against their will.
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  Speaker 3: Explain how when prosecutors overcharged it, it gives the defense
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  Speaker 3: an opening to challenge their case.
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  Speaker 4: Well, that's ultimately where this case turned. It was really
• 3:06
  Speaker 4: an argument by the defense that although mister Combe had
• 3:10
  Speaker 4: committed some abhorrent acts, they had the video of him
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  Speaker 4: picking Tasti Ventura by the elevator bank out in Beverly Hills.
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  Speaker 4: That was undeniably bad behavior and painted mister Combs in
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  Speaker 4: a very negative light. But when that was held up
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  Speaker 4: against the more serious charges of racketeering conspiracy, which included
• 3:30
  Speaker 4: certain criminal acts such as forced labor, bribery, obstruction of justice,
• 3:36
  Speaker 4: all of that was thrown in and basically prosecutors were
• 3:39
  Speaker 4: stating that he used this vast empire that he built
• 3:42
  Speaker 4: up over many years simply as a means of forcing
• 3:46
  Speaker 4: these ex girlfriends to continue to perform these sexual acts
• 3:50
  Speaker 4: against their will, and all the while they were coerced
• 3:53
  Speaker 4: into doing this. The defense was able to effectively pick
• 3:56
  Speaker 4: that apart by showing text messages from both of the
• 4:01
  Speaker 4: victims which at various times suggested that they had participated
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  Speaker 4: in these acts willfully, that they were not coerced, that
• 4:09
  Speaker 4: they could have left but chose not to, And ultimately
• 4:12
  Speaker 4: I think that was the downfall for the prostitution's case.
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  Speaker 4: It really ultimately turned on whether they believed that the
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  Speaker 4: victims were actually trapped in this relationship and had no
• 4:23
  Speaker 4: way out and were literally forced to commit these acts,
• 4:27
  Speaker 4: or whether this is more complex than that, and the
• 4:30
  Speaker 4: defense was able to show that these relationships, while toxic,
• 4:34
  Speaker 4: while not healthy, and while it involved bad behavior by
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  Speaker 4: mister Colmbs, didn't rise to the level of racketeering conspiracy.
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  Speaker 3: The two acquittals for sex trafficking, which stemmed from allegations
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  Speaker 3: that Colmbs forced his two ex girlfriends to engage in
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  Speaker 3: these so called freak offs, and Ventura testified over four
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  Speaker 3: days some very emotional testimony refer to this, But did
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  Speaker 3: the jurors just not believe her.
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  Speaker 4: It's hard to say exactly what they were thinking that
• 5:05
  Speaker 4: testimony was compelling. That testimony had to be very emotional
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  Speaker 4: for jurors to sit through, and yet at the end
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  Speaker 4: of the day, they did not believe that she was
• 5:16
  Speaker 4: necessarily compelled to participate in commercial sex acts through force, fraud,
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  Speaker 4: and coercion. The key here is there has to be
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  Speaker 4: a link between the force, the fraud, and the coercion
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  Speaker 4: and the acts of sex. And I think at the
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  Speaker 4: end of the day, the evidence was just not clear
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  Speaker 4: enough for them to meet that burden. Remember, prosecutors have
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  Speaker 4: to prove their case beyond a reasonable doubt. Anything less
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  Speaker 4: than that will result in an acquittal, as we saw
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  Speaker 4: here and sex trafficking.
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  Speaker 3: Did those charges even fit the facts here? Aren't people
• 5:50
  Speaker 3: usually charged with sex trafficking when there's no connection to
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  Speaker 3: the victims, not people in long term relationships like Combs
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  Speaker 3: and his ex girlfriend.
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  Speaker 4: Yeah, that was I think one of the problems too,
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  Speaker 4: because the victims here were involved in these long term relationships,
• 6:07
  Speaker 4: and they had written many messages, emails, text messages, other
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  Speaker 4: writings evidencing their love for mister Combs at various times.
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  Speaker 4: The fact that they willingly participated in some of these acts,
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  Speaker 4: the fact that they did things in order to please him,
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  Speaker 4: and the fact fact that after some of these sessions
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  Speaker 4: they texted him saying that they enjoyed them. And I
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  Speaker 4: think it was very difficult for jurors to necessarily conclude
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  Speaker 4: that all of this was done against their will, that
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  Speaker 4: none of it was consensual. And as you say, June,
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  Speaker 4: it's a situation where the sex trafficking charge is typically
• 6:40
  Speaker 4: brought in an instance where the perpetrator does not have
• 6:44
  Speaker 4: a relationship with the victim. Here there was a long
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  Speaker 4: term relationship, one that was very complicated, and also one
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  Speaker 4: in which the victims had benefited financially from their relationship
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  Speaker 4: with mister Combs. So it became, I think, very difficult
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  Speaker 4: for jurres to sort out the true nature of those relationships.
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  Speaker 4: I don't think they necessarily disbelieve the victims, but I
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  Speaker 4: think they ultimately concluded that the fact as presented to
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  Speaker 4: them in court did not meet the elements of the
• 7:14
  Speaker 4: sex trafficking charges.
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  Speaker 3: He was convicted of two counts of transportation to engage
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  Speaker 3: in prostitution that stems from allegations that he paid sex
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  Speaker 3: workers to come to his freak off parties. Tell us
• 7:28
  Speaker 3: about that that's a felony violation of the Federal Man Act.
• 7:32
  Speaker 4: These were the charges that were really easiest for prosecutors
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  Speaker 4: to prove, because all they have to show is that
• 7:38
  Speaker 4: individual's cross state lines with the intent to engage in prostitution.
• 7:43
  Speaker 4: And there was plenty of evidence presented at the trial
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  Speaker 4: that mister Colms had made arrangements for these male prostitutes
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  Speaker 4: to meet with his girlfriends. He bought plane tickets, there
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  Speaker 4: were credit card statements, there were hotel records. These were
• 7:56
  Speaker 4: the charges that prosecutors were able to prove fairly readily,
• 8:01
  Speaker 4: and there wasn't really much of a defense to them.
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  Speaker 4: I think the defense strategy was to focus on the
• 8:06
  Speaker 4: more serious charges, which they ultimately succeeded in convincing jurors
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  Speaker 4: to quit their client on.
• 8:12
  Speaker 3: The prosecution put on thirty four witnesses. The defense didn't
• 8:17
  Speaker 3: call any witnesses and elected instead to challenge the credibility
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  Speaker 3: of the prosecution's witnesses through lengthy cross examinations that sometimes
• 8:28
  Speaker 3: were longer than the directs. Was that a risky move
• 8:31
  Speaker 3: by the defense, No, I.
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  Speaker 4: Think from the very start the defense strategy was always
• 8:37
  Speaker 4: to win their case through cross examination. I think they
• 8:41
  Speaker 4: correctly sized the case up and knew that it was
• 8:44
  Speaker 4: going to turn on the testimony of the two victims
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  Speaker 4: and how compelling they were, and that by adding witnesses
• 8:50
  Speaker 4: for the defense, it was only going to complicate the
• 8:53
  Speaker 4: case and create a more complex narrative for them to
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  Speaker 4: have to convince Durres ask exactly what was going on here.
• 9:00
  Speaker 4: They wanted the case ultimately to be about these two
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  Speaker 4: victims and to show that the relationship that they were
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  Speaker 4: in with mister Colmbs over many years was one in
• 9:09
  Speaker 4: which they gained financially, one in which they willingly participated.
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  Speaker 4: In no doubt, they were ups and downs in those relationships,
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  Speaker 4: and there were some domestic violence that went on, and
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  Speaker 4: the defense readily admitted that. But the question is did
• 9:21
  Speaker 4: it really rise to the level of racketeering conspiracy? The
• 9:24
  Speaker 4: defense placed a large set that the jurors would answer
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  Speaker 4: that question in the negative, and ultimately they prevailed.
• 9:31
  Speaker 3: Were you surprised that the judge refused to release Colmbs
• 9:34
  Speaker 3: while he waits to be sentenced.
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  Speaker 4: I wasn't totally surprised. I think here there was some
• 9:40
  Speaker 4: sense from the judge that the defense team is really
• 9:43
  Speaker 4: trying to have it both ways on this issue. He
• 9:46
  Speaker 4: noted that the Combs defense team at trial admitted the
• 9:50
  Speaker 4: domestic violence claims and said that a confession was really
• 9:54
  Speaker 4: unnecessary here because the defendant's violence was starkly depicted in
• 9:59
  Speaker 4: the twenti sixteen Intercontinental video, referring to the video of
• 10:04
  Speaker 4: mister Holmes violently beating Cathy Ventura. This suggests to me
• 10:09
  Speaker 4: that the judge was very troubled by the violence he
• 10:11
  Speaker 4: witnessed in the video and led him to conclude that
• 10:15
  Speaker 4: mister Colmbs continues to pose a danger to the community,
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  Speaker 4: which is why he decided to leave him in jail
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  Speaker 4: pending sentencing.
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  Speaker 3: As far as sentencing, technically it's ten years on each
• 10:27
  Speaker 3: of the counts, colmb's lawyers said that under the federal
• 10:30
  Speaker 3: sentencing guidelines, he'd likely face twenty one to twenty seven months. Prosecutors,
• 10:36
  Speaker 3: citing his violence and other factors, said he'd likely face
• 10:39
  Speaker 3: fifty one to sixty three months. Considering what the judge
• 10:43
  Speaker 3: said in denying bail, mighty sentence Colmb's to more than that.
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  Speaker 4: Well, the upper limit that the judge can send them
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  Speaker 4: to is actually twenty years. That's the statutory maximum the
• 10:54
  Speaker 4: sentencing guidelines govern these sentences to the extent that they
• 10:58
  Speaker 4: give guidance to the jug judge, but the judge has
• 11:01
  Speaker 4: full discretion to send mister Colmbs to whatever he wants,
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  Speaker 4: theoretically up to twenty years. I think the fact that
• 11:08
  Speaker 4: he's decided to keep him in jail pending sentencing, even
• 11:12
  Speaker 4: though he's already been in jail for almost a year,
• 11:15
  Speaker 4: suggests that the judge does do this as a serious crime,
• 11:19
  Speaker 4: and they send them to something much closer to what
• 11:22
  Speaker 4: prosecutors are asking than what the defense is speaking here.
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  Speaker 4: And it is even possible that the judge sends them
• 11:28
  Speaker 4: to something more than what prosecutors are asking for. It's
• 11:32
  Speaker 4: highly unusual, but it is within the judges' discretion to
• 11:36
  Speaker 4: really send mister Combs to whatever he believes is fair
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  Speaker 4: and just given the circumstances.
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  Speaker 3: They'll be a hearing next Tuesday to discuss the sentencing process.
• 11:45
  Speaker 3: That should be interesting. Thanks so much, Bob. That's Robert
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  Speaker 3: Mins of maccarter and English coming up next. The winners
• 11:52
  Speaker 3: and losers at the Supreme Court this term, I'm June gross.
• 11:56
  Speaker 3: When you're listening to Bloomberg, Chief Justice John Roberts repeatedly
• 12:01
  Speaker 3: stresses the importance of judicial independence as he did during
• 12:05
  Speaker 3: an interview in May.
• 12:06
  Speaker 1: Its job is to.
• 12:09
  Speaker 2: Obviously decide cases, but in the course of that check
• 12:13
  Speaker 2: the excesses of Congress or of the executive, and that
• 12:16
  Speaker 2: does require degree of independence.
• 12:18
  Speaker 3: However, in the Supreme Court's recent term, it doesn't appear
• 12:22
  Speaker 3: that justices did much to check the excesses of the
• 12:26
  Speaker 3: current executive. In fact, the clear winner of the term
• 12:30
  Speaker 3: was President Donald Trump. The Court sided with him on
• 12:33
  Speaker 3: broad legal questions and emergency request to let his policies
• 12:38
  Speaker 3: take effect, from throwing transgender service members out of the
• 12:42
  Speaker 3: military to opening hundreds of thousands of migrants to deportation.
• 12:47
  Speaker 3: And for the second year in a row, the Court
• 12:49
  Speaker 3: ended the term with a decision handing Trump a major victory,
• 12:54
  Speaker 3: basically eliminating the main tool used to thwart his ambitious agenda,
• 12:59
  Speaker 3: the nation wide injunction.
• 13:01
  Speaker 1: This was a big one, wasn't it.
• 13:03
  Speaker 5: This was a big decision, an amazing decision, one that
• 13:08
  Speaker 5: we're very happy about.
• 13:09
  Speaker 3: Like almost all the high profile cases this term, the
• 13:13
  Speaker 3: Court divided six to three down ideological lines, with the
• 13:17
  Speaker 3: conservatives in the majority and the liberals dissenting. Joining me
• 13:21
  Speaker 3: is constitutional law expert Michael Dorf, a professor at Cornell
• 13:25
  Speaker 3: Law School, Mike The finale of the term, if you will,
• 13:29
  Speaker 3: was the decision in the case over Trump's ban on
• 13:33
  Speaker 3: automatic birthright citizenship, where the Conservatives stripped the lower courts
• 13:38
  Speaker 3: of the power to grant nationwide injunctions, which have really
• 13:42
  Speaker 3: been the only effective check on the Trump agenda. Trump
• 13:46
  Speaker 3: thought the decision was important enough to call a press conference.
• 13:49
  Speaker 3: How important do you think.
• 13:50
  Speaker 1: It is that remains to be seen? The prohibition on
• 13:54
  Speaker 1: most universal injunctions will have very serious bite if, but
• 14:01
  Speaker 1: only if, the Court makes it difficult for plaintiffs to
• 14:05
  Speaker 1: bring class actions and makes it difficult for states to
• 14:10
  Speaker 1: sue for statewide injunctions. Those are two potential workarounds, neither
• 14:16
  Speaker 1: of which the majority directly addressed is but both of which,
• 14:22
  Speaker 1: just as the Leto and his concurrence suggests, should be
• 14:26
  Speaker 1: only available under a heightened standard of sorts. So what
• 14:31
  Speaker 1: remains to be seen is whether plaintiffs challenging these executive actions.
• 14:35
  Speaker 1: Here it was the birthright citizenship order, but it applies
• 14:39
  Speaker 1: diversely everything, whether they can quickly convert to class actions,
• 14:43
  Speaker 1: whether states can bring these cases. If they can, then
• 14:46
  Speaker 1: I think this ends up not being such a big deal.
• 14:48
  Speaker 3: Getting class action status is a lot more complicated, and
• 14:52
  Speaker 3: I think we've seen just in the last week how
• 14:55
  Speaker 3: confusing it is for the lower courts to parse through this.
• 14:59
  Speaker 1: The Supreme Court could have, and in my view, should
• 15:02
  Speaker 1: have given more guidance on whether class actions are available
• 15:07
  Speaker 1: and under what standard. You know, one of the things
• 15:09
  Speaker 1: I think is easily overlooked is the ruling in the
• 15:12
  Speaker 1: case is not a constitutional holding. The court doesn't say
• 15:18
  Speaker 1: that the Constitution forbids this kind of equitable relief. What
• 15:21
  Speaker 1: it says is that this power was not conferred by
• 15:25
  Speaker 1: statute on the federal courts. Well, if that's the case,
• 15:28
  Speaker 1: it's possible that federal Rule of Civil Procedure twenty three,
• 15:32
  Speaker 1: which is the class action provision, is empowered by the
• 15:35
  Speaker 1: Rules Enabling Act that that does confer this power, and
• 15:39
  Speaker 1: that would be fully consistent. It would just lead to,
• 15:42
  Speaker 1: you know, the availability of similar relief under a different mechanism.
• 15:45
  Speaker 3: President Trump says that the administration is going to move
• 15:48
  Speaker 3: to lift hold that judges have placed on a number
• 15:52
  Speaker 3: of his policies. He mentioned fights over refugee resettlement, federal spending,
• 15:56
  Speaker 3: and sanctuary cities. So you know, it's going to open
• 15:59
  Speaker 3: up a.
• 15:59
  Speaker 1: Can of Oh, I think that's right. I mean, I
• 16:02
  Speaker 1: think this is in some ways the basic problem with
• 16:05
  Speaker 1: the Supreme Court these days, which is it's treating the
• 16:09
  Speaker 1: Trump administration like a normal administration rather than one that
• 16:14
  Speaker 1: is committed to sort of pushing the edge of the
• 16:17
  Speaker 1: envelope and getting away with whatever it can. And so,
• 16:20
  Speaker 1: you know, if you were thinking about the system as
• 16:22
  Speaker 1: a whole and what's good for the rule of law,
• 16:25
  Speaker 1: you would have been much clearer of your guidance and
• 16:28
  Speaker 1: in what you're allowing and not allowing justice.
• 16:30
  Speaker 3: Sonya Sotomayor and one of her ascent said the Court
• 16:33
  Speaker 3: was rewarding lawlessness because the Trump administration has repeatedly, either
• 16:38
  Speaker 3: explicitly or not so explicitly, ignored court orders, particularly in
• 16:43
  Speaker 3: the cases of immigration orders.
• 16:46
  Speaker 1: She is exactly right that it's one thing to stay,
• 16:49
  Speaker 1: as the Court has said in some of these cases. Well,
• 16:51
  Speaker 1: we think the lower courts went too far in issuing
• 16:54
  Speaker 1: this order. That doesn't mean that the administration was permitted
• 16:57
  Speaker 1: to violate the order while it was us in force.
• 17:01
  Speaker 1: The normal rule is if you don't like a court order,
• 17:04
  Speaker 1: you appeal it. But unless you get a stay of
• 17:07
  Speaker 1: that order, and until you get a stay of that order,
• 17:09
  Speaker 1: you have to comply with it.
• 17:11
  Speaker 3: There were three cases involving LGBTQ rights that divided the
• 17:16
  Speaker 3: justices down ideological lines and ended up in losses for
• 17:20
  Speaker 3: the LGBTQ plus community. In the Scrimmeti case, which has
• 17:25
  Speaker 3: implications for transgender youth in more than half the states,
• 17:29
  Speaker 3: the Court's conservatives uphel Tennessee's ban on gender affirming care
• 17:35
  Speaker 3: for transgender miners, and advocates say the decision is devastating
• 17:40
  Speaker 3: for transgender youth and their families in the twenty seven
• 17:44
  Speaker 3: states that have similar bands. Here's Kelly Robinson, the president
• 17:48
  Speaker 3: of the Human Rights Campaign.
• 17:50
  Speaker 1: You're going to have families, families that have been in
• 17:53
  Speaker 1: states that they live in for generations.
• 17:55
  Speaker 2: I know family has been in Arizona for generations and generations.
• 17:58
  Speaker 1: They are Arizonas. They're going to have to leave their
• 18:01
  Speaker 1: states just to get access to care for their kids.
• 18:05
  Speaker 3: Justice Sonya Sotomayor wrote that she dissented in sadness. She
• 18:09
  Speaker 3: said this decision will open the door to more state
• 18:12
  Speaker 3: discrimination against trans tenes and authorize, in her words, untold
• 18:18
  Speaker 3: harm to these families. Mike, this was an equal protection argument.
• 18:22
  Speaker 1: As it came to the Supreme Court, the only issue
• 18:25
  Speaker 1: was whether this was a violation of equal protection, and
• 18:28
  Speaker 1: the Court, in a sense I wouldn't say, duck that issue,
• 18:32
  Speaker 1: but sort of mooted it by saying, well, there isn't
• 18:35
  Speaker 1: a sex based classification or even a transgender identity based
• 18:40
  Speaker 1: classification at issue here, so we don't have to apply
• 18:45
  Speaker 1: the intermediate scrutiny that would normally apply to such laws,
• 18:50
  Speaker 1: and therefore we only have to say whether it's rational.
• 18:52
  Speaker 1: And of course states get to make all sorts of
• 18:55
  Speaker 1: medical judgments, and you subject those to rational basis scrutiny,
• 18:58
  Speaker 1: they're almost always going to survive. So, in a sense,
• 19:02
  Speaker 1: the case doesn't tell us that much about the status
• 19:06
  Speaker 1: of discrimination of the basis of transgender status under the
• 19:10
  Speaker 1: Constitution going forward, because the Court said, well, we don't
• 19:13
  Speaker 1: have to address that here, except that several justices in
• 19:17
  Speaker 1: concurring opinions didn't address that and said, even if it
• 19:21
  Speaker 1: is transgender based discrimination, that's okay because that kind of
• 19:26
  Speaker 1: discrimination doesn't trigger any heightened scrutiny.
• 19:29
  Speaker 3: Would those three concurring justices Clarence Thomas, Samuel Alito, and
• 19:34
  Speaker 3: Amy Cony Barrett reject heightened scrutiny for any anti trans laws.
• 19:41
  Speaker 1: I think that's right. I mean Justice Barrett actually is
• 19:44
  Speaker 1: the one who writes most extensively on this, and she says, look,
• 19:47
  Speaker 1: we have criteria for deciding whether something is a suspect
• 19:52
  Speaker 1: of sent me susie classification, and transgender status doesn't meet
• 19:56
  Speaker 1: those criteria. Now, I think she applies them a little
• 19:59
  Speaker 1: bit strangely. One of the thing she says is that
• 20:01
  Speaker 1: in order for something to be so called immutable characteristic,
• 20:04
  Speaker 1: it has to be identifiable at birth, and transgender status
• 20:08
  Speaker 1: doesn't emerge until later. Well, that's a kind of backwards analysis,
• 20:13
  Speaker 1: because of course, the whole point of someone wanting to
• 20:16
  Speaker 1: transition to address their gender dysparrior or other mismatch between
• 20:20
  Speaker 1: their experience of themselves and the sex assigned at birth
• 20:25
  Speaker 1: is that what they were treated as at birth was
• 20:29
  Speaker 1: you know, not accurate. And so it's a very odd
• 20:33
  Speaker 1: odd thing to say, Well, because when you were an
• 20:35
  Speaker 1: infant you didn't realize or other people didn't realize, that
• 20:40
  Speaker 1: you were a male inside of a female body, or
• 20:43
  Speaker 1: vice versa, then that's not real in some sense. So
• 20:46
  Speaker 1: there's a way in which it's a kind of you know,
• 20:48
  Speaker 1: denial of the existence of transgender persons at all. I mean,
• 20:52
  Speaker 1: she doesn't say that, but I think that's the logical
• 20:54
  Speaker 1: implication of that particular criterion.
• 20:57
  Speaker 3: I mean, the same drugs that Tennessee ban for the
• 21:01
  Speaker 3: purpose of gender firming care for transitioning miners are allowed
• 21:05
  Speaker 3: for a number of other purposes in non transminers. How
• 21:10
  Speaker 3: do they get away from saying that's not an equal
• 21:12
  Speaker 3: protection violation?
• 21:15
  Speaker 1: So the plaintiffs and just the state of my orin descent,
• 21:18
  Speaker 1: I think, are very clear. Look, if a boy wants
• 21:20
  Speaker 1: to take this drug to give himself facial hair, you
• 21:24
  Speaker 1: allow it. If a transgender boy who's assigned female at
• 21:29
  Speaker 1: birth wants to take it, you disallow. It's the same
• 21:31
  Speaker 1: same effect. How could that be anything other than sex discrimination?
• 21:35
  Speaker 1: And what the court says is, well, it's not the
• 21:39
  Speaker 1: same treatment if it's being prescribed for a different condition.
• 21:44
  Speaker 1: In the boy who's taking this to give himself facial hair,
• 21:49
  Speaker 1: it's being prescribed because he has low testosterone. In the
• 21:54
  Speaker 1: transgender boy who's signed female at birth, it's being given
• 21:58
  Speaker 1: to facilitate sex transition. And that the course says is
• 22:04
  Speaker 1: a different treatment. Now they analogize to something like, you know,
• 22:08
  Speaker 1: different off label uses, so that something might be approved
• 22:12
  Speaker 1: as a treatment for hypertension and people discover heness also
• 22:15
  Speaker 1: can cure baldness mormally. If a drug is approved for
• 22:19
  Speaker 1: one purpose, it can be prescribed off label, but states
• 22:22
  Speaker 1: can forbid certain off label uses if they think the
• 22:26
  Speaker 1: risks and benefits are different. So that's the analogy that
• 22:30
  Speaker 1: the majority draws. The difficulty with that as I think
• 22:33
  Speaker 1: just the studyment are convincingly, says in dissent, is well, here,
• 22:36
  Speaker 1: what makes this a different treatment is simply the sex
• 22:40
  Speaker 1: assigned birth of the person taking it, And you're sort
• 22:43
  Speaker 1: of building the lily or double counting by working that in.
• 22:47
  Speaker 3: On Monday, the Court ordered federal appeals courts in four
• 22:50
  Speaker 3: states to re examine their rulings in favor of transgender
• 22:55
  Speaker 3: people in clashes over healthcare and birth certificates in light
• 22:59
  Speaker 3: of the Scrimmette decision. Can we read anything into that?
• 23:02
  Speaker 1: Oh yes, So I was trying to be a little
• 23:04
  Speaker 1: bit hopeful there to say that, you know, as a
• 23:07
  Speaker 1: matter of the official holdings, the court has not or
• 23:11
  Speaker 1: closed the possibility that sometime in the future it could
• 23:16
  Speaker 1: say transgender status ecrimination is sort of presumptively invalid in
• 23:21
  Speaker 1: the same way that sex discrimination is. But reading the
• 23:25
  Speaker 1: tea leaves, I think it's pretty clear that that's not
• 23:28
  Speaker 1: the direction of this Court is going. And another way
• 23:31
  Speaker 1: to put that is that they are going to increasingly
• 23:35
  Speaker 1: treat the boss Stock decision, the case that held that
• 23:38
  Speaker 1: sexual orientation and transgender status discrimination or sex discrimination for
• 23:43
  Speaker 1: purposes of Title seven. They're going to treat that decision
• 23:46
  Speaker 1: as a kind of outlier, the case that gets distinguished,
• 23:49
  Speaker 1: and they specifically say, Inscremmetti, well, we're not addressing this
• 23:53
  Speaker 1: Bostock analogy. Title seven might be different. So I think
• 23:56
  Speaker 1: they're teeing that up and so cutting back, you know,
• 23:59
  Speaker 1: anti trends backlash that we've been seeing in the political
• 24:03
  Speaker 1: realm I think is now flowering in the Supreme Court
• 24:06
  Speaker 1: as well.
• 24:07
  Speaker 3: And LGBTQ rights may be further curb next term because
• 24:12
  Speaker 3: on Thursday, the Court agreed to decide whether states can
• 24:15
  Speaker 3: ban transgender girls and women from competing for their schools
• 24:19
  Speaker 3: on female athletic teams. Coming up next on the Bloomberg
• 24:22
  Speaker 3: Law Show, I'll continue this analysis of the just completed
• 24:26
  Speaker 3: term with Cornell law professor Michael Darf How far to
• 24:29
  Speaker 3: the right. Has the conservative super majority moved the court.
• 24:34
  Speaker 3: I'm June Grosso, and you're listening to Bloomberg. The Supreme
• 24:38
  Speaker 3: Court waded into the culture wars this term, and that
• 24:41
  Speaker 3: showed up nowhere more than in a case where the
• 24:43
  Speaker 3: six Conservatives ruled that religious public school parents have the
• 24:48
  Speaker 3: right to opt their children out of classroom lessons that
• 24:51
  Speaker 3: involved the reading of LGBTQ themed storybooks. In the majority opinion,
• 24:57
  Speaker 3: Justice Samuel Alito took issue some of the books, for example,
• 25:02
  Speaker 3: saying that the book entitled Uncle Bobby's Wedding presents a
• 25:05
  Speaker 3: subtle message about gay marriage.
• 25:08
  Speaker 1: Quote.
• 25:08
  Speaker 3: It asserts that two people can get married regardless of
• 25:12
  Speaker 3: whether they are of the same or the opposite sex,
• 25:15
  Speaker 3: as long as they love each other, an echo of
• 25:18
  Speaker 3: the concerns you raised when questioning the attorney for the
• 25:21
  Speaker 3: school district, Alan Schoenfeld, during the oral arguments.
• 25:25
  Speaker 5: But it expresses the idea this is a good thing, Mommy,
• 25:29
  Speaker 5: said Chloe. I don't understand why is Uncle Bobby getting married.
• 25:34
  Speaker 5: Bobby and Jamie love each other, said Mummy. When people,
• 25:38
  Speaker 5: when grown up, people love each other that much, sometimes
• 25:41
  Speaker 5: they get married. I mean that's not sending subtly sending
• 25:44
  Speaker 5: a message this is a good thing.
• 25:46
  Speaker 2: I think that's a way of a mother consoling her
• 25:48
  Speaker 2: daughter who's annoyed that her favorite uncle is distracted and
• 25:50
  Speaker 2: doesn't have time for her. But even if the message
• 25:53
  Speaker 2: were some people are gay, some people get married, I
• 25:57
  Speaker 2: don't think there's anything impermissive normative about that.
• 26:02
  Speaker 3: I've been talking to constitutional law professor Michael Dorf of
• 26:05
  Speaker 3: Cornell Law School, Mike, when religion comes up against other rights,
• 26:10
  Speaker 3: in particular LGBTQ rights, religion always wins at the Roberts Court.
• 26:15
  Speaker 1: Yeah, that's right. I mean, you can think of this
• 26:17
  Speaker 1: as sort of the finale, for now of a trilogy
• 26:22
  Speaker 1: that began with the Masterpiece Cake Shop case, continued with
• 26:25
  Speaker 1: the three or three Creative case, and now here we
• 26:28
  Speaker 1: have a similar situation where the religious claim wins out
• 26:34
  Speaker 1: as against the effort to in this case have an
• 26:38
  Speaker 1: LGBTQ plus inclusive curriculum. To my mind, what's so surprising
• 26:45
  Speaker 1: about this case is how quickly and easily the court
• 26:50
  Speaker 1: dismisses the administrative burden that it's placing on school districts. Right,
• 26:57
  Speaker 1: what the court says is, if there is a burden
• 27:01
  Speaker 1: on religion, then the government school district has to give
• 27:07
  Speaker 1: an exemption unless it can statisfy scrutiny. And the burden
• 27:13
  Speaker 1: on religion here is as the descent points out, that
• 27:18
  Speaker 1: kids are being exposed to ideas that are contrary to
• 27:23
  Speaker 1: what their parents want to teach them as a matter
• 27:26
  Speaker 1: of religious faith. And if you just think about that
• 27:28
  Speaker 1: for a moment, you quickly realize, well, that could cover
• 27:31
  Speaker 1: a lot of things. You know, there are great many
• 27:33
  Speaker 1: people in this country who, as a matter of religious faith,
• 27:36
  Speaker 1: don't believe that humans descended from other animals through revolution.
• 27:42
  Speaker 1: Does that mean that religious parents can op their kids
• 27:45
  Speaker 1: out of biology? People believe in the millions that the
• 27:50
  Speaker 1: Earth is only six thousand years old, even though you know,
• 27:54
  Speaker 1: geology suggests that it's four and a half billion years old.
• 27:58
  Speaker 1: Can parents op their kids out of geology? I think
• 28:01
  Speaker 1: those issues are probably unlikely to arise in large numbers,
• 28:05
  Speaker 1: But the real impact will be to these concerned efforts
• 28:09
  Speaker 1: to have parents object to what they see as some
• 28:14
  Speaker 1: woke curricula on religious grounds. And because the administrative burden
• 28:19
  Speaker 1: is so great, the school district might conclude, well, you
• 28:22
  Speaker 1: know what, it's just easier not to teach this stuff.
• 28:25
  Speaker 1: At all, and that is the point that the descent makes,
• 28:28
  Speaker 1: I think very effectively.
• 28:29
  Speaker 3: You mentioned the trilogy of cases, and this reminds me
• 28:33
  Speaker 3: of the three to H three Creative case, which involved
• 28:38
  Speaker 3: a website designer who didn't want to design websites for
• 28:42
  Speaker 3: gay marriages. However, she'd never been asked to. And here
• 28:47
  Speaker 3: you have a case where the curriculum for using these
• 28:51
  Speaker 3: LGBTQ books isn't even established yet. It seems like the
• 28:55
  Speaker 3: Court is just jumping in before there's a real controverse.
• 29:00
  Speaker 1: I think a fair criticism of the Court would be
• 29:03
  Speaker 1: that in these cases where there are religious objections to
• 29:09
  Speaker 1: aay rights, trans rights, etc. That are statutory, the court's
• 29:14
  Speaker 1: standing rules seem to be flexible. You know, you can
• 29:18
  Speaker 1: make a case that there is standing both in three
• 29:21
  Speaker 1: or three Creative and here. But again, some of the
• 29:25
  Speaker 1: same justices who might be sticklers in other contexts in
• 29:29
  Speaker 1: this context tend to say, well, of course you can challenge.
• 29:32
  Speaker 3: This policy, and the Court isn't stepping away from the
• 29:35
  Speaker 3: culture wars. Next term, it's going to hear a challenge
• 29:40
  Speaker 3: to Colorado's ban on conversion therapy, and the challenge is
• 29:44
  Speaker 3: from a licensed counselor who says she views her work
• 29:48
  Speaker 3: as an outgrowth of her Christian faith. So I think
• 29:51
  Speaker 3: we're going to see the same result in that case.
• 29:54
  Speaker 3: Maybe I'm jumping the gun bill.
• 29:55
  Speaker 1: I don't think you are. And you know, if you
• 29:57
  Speaker 1: want to sort of juxtapose that with skir Many right,
• 30:00
  Speaker 1: so INSCRIMMENTI the court is all about giving deference to
• 30:04
  Speaker 1: Tennessee's ostensibly medical determination that it's not in the interests
• 30:12
  Speaker 1: of miners and they're not sort of fully able to
• 30:16
  Speaker 1: give and form consent to have puberty blockers and hormone therapy.
• 30:20
  Speaker 1: I don't think you'll see the same kind of deference
• 30:23
  Speaker 1: given to Colorado in its judgment that this kind of
• 30:28
  Speaker 1: therapy is not in the interests of miners.
• 30:33
  Speaker 3: There were three Second Amendment cases, and the justices upheld
• 30:37
  Speaker 3: federal regulations for build at home ghost gun kits, refuse
• 30:42
  Speaker 3: to give gun manufacturers broad immunity from civil suits, and
• 30:46
  Speaker 3: turned away constitutional challenges to state bans on assault weapons
• 30:51
  Speaker 3: and high capacity magazines. Does this signal that the Court
• 30:56
  Speaker 3: won't eviscerate gun control measures or is it too soon
• 31:00
  Speaker 3: to tell?
• 31:01
  Speaker 1: I think it's a little of both. The Vanderstock case
• 31:03
  Speaker 1: that's the ghost guns case there. The statute is pretty specific,
• 31:08
  Speaker 1: and you look at that versus the bump stock case
• 31:11
  Speaker 1: that they had where they came out the other way.
• 31:14
  Speaker 1: You can just see those as a statutory construction. You know.
• 31:17
  Speaker 1: The same thing goes for Smith and Weston. I mean,
• 31:20
  Speaker 1: after all, Mexico did lose that case, so they're unable
• 31:24
  Speaker 1: to bring the lawsuits. I don't count that one as
• 31:26
  Speaker 1: a pure victory for gun regulation. And then Henston, which
• 31:31
  Speaker 1: is the case where they denied cert from the District
• 31:35
  Speaker 1: of Columbia CIRT denial doesn't set a precedent, and I
• 31:40
  Speaker 1: think they're the case involved a limit of ten rounds
• 31:43
  Speaker 1: on a gun. You can make an argument that the
• 31:46
  Speaker 1: gun that is in common use, that's the term for
• 31:48
  Speaker 1: Second Amendment purposes, is the handgun. And then you ask, well,
• 31:52
  Speaker 1: is it consistent with the history of regulation of guns
• 31:57
  Speaker 1: to limit them to ten rounds. Well, you're not going
• 31:59
  Speaker 1: to find guns that were capable of firing more than
• 32:02
  Speaker 1: ten rounds at the founding, so there's a way to
• 32:05
  Speaker 1: get to this result. But I think is consistent with
• 32:07
  Speaker 1: what they've said before, and I think it's far too
• 32:10
  Speaker 1: soon to say that the court is sort of easing
• 32:13
  Speaker 1: up on the Second Amendment revolution that it began in
• 32:18
  Speaker 1: two thousand and eight with the Heller case.
• 32:20
  Speaker 3: The Trump administration repeatedly went to the court on an
• 32:23
  Speaker 3: emergency basis, and the conservative justice is repeatedly reinstated Trump
• 32:29
  Speaker 3: policies found by lower courts to be illegal. A few examples,
• 32:34
  Speaker 3: the court allowed Trump to discharge transgender people from the military,
• 32:38
  Speaker 3: fire top officials at government agencies, and open hundreds of
• 32:42
  Speaker 3: thousands of migrants to deportation. How do you read all
• 32:45
  Speaker 3: his wins on the emergency docket?
• 32:48
  Speaker 1: I guess I'd say a few things. First. One of
• 32:50
  Speaker 1: the things we didn't talk about when we're taling about
• 32:52
  Speaker 1: Trump against KASA is Justice Kavanaugh's concurrence, in which he says, well,
• 32:57
  Speaker 1: the solution to the problem of universal injunctions is for
• 33:01
  Speaker 1: us to get these cases up here really fast, and
• 33:04
  Speaker 1: then for us to decide them because we can lay
• 33:07
  Speaker 1: down the law that will be binding nationally. Well, one
• 33:11
  Speaker 1: of the odd things is, if that's true, how come
• 33:13
  Speaker 1: they're not doing that that in a lot of these cases.
• 33:16
  Speaker 1: They're not actually saying, well, here's the rule, and we're
• 33:19
  Speaker 1: deciding on the emergency docket. They're just sort of reversing
• 33:22
  Speaker 1: the lower courts giving either no guidance or very scant guidance.
• 33:26
  Speaker 1: And that's to say nothing of whether Justice Kavanaugh's proposed
• 33:29
  Speaker 1: solution makes any sense, given that putting something on the
• 33:32
  Speaker 1: emergency docket means they don't really have that much time
• 33:35
  Speaker 1: to decide the case, and they don't have full briefing
• 33:38
  Speaker 1: in full oral argument. So you had this remarkable decision
• 33:42
  Speaker 1: where they essentially overrule the Humphreys executor case, which is,
• 33:47
  Speaker 1: you know, a very old president banding for the proposition
• 33:50
  Speaker 1: that Congress can create independent agencies. And you know, Justice
• 33:54
  Speaker 1: Kagan in the sense says, what are you doing? You
• 33:57
  Speaker 1: barely even mentioned the case and you're off ruling it,
• 33:59
  Speaker 1: and we haven't had a full briefing in argument on this,
• 34:02
  Speaker 1: and you're reversing the lower court for following our established president,
• 34:06
  Speaker 1: which we've told them they're supposed to do. So one
• 34:09
  Speaker 1: remarkable thing about what they're doing on the emergency donket
• 34:12
  Speaker 1: is timply, you know how much law they're making. And
• 34:14
  Speaker 1: now that's not an entirely new phenomenon. They did that
• 34:18
  Speaker 1: in a bunch of religion cases during the pandemic, and
• 34:20
  Speaker 1: they continue to do that, but it is the very
• 34:23
  Speaker 1: strange thing for them to be doing. It is striking
• 34:26
  Speaker 1: how different a position the Court is staking out from
• 34:31
  Speaker 1: that of the lower Court. One of the interesting phenomena
• 34:34
  Speaker 1: in this court this year is if you look at
• 34:36
  Speaker 1: the statistics on their plenary docket, they reverse the Fifth Circuit,
• 34:41
  Speaker 1: which is the most conservative circuit, quite a lot. So
• 34:44
  Speaker 1: the Fifth Circuit is getting how to head of the
• 34:46
  Speaker 1: Supreme Court and beings very very conservative. But on their
• 34:50
  Speaker 1: emergency docket in these cases challenging coup administration actions, the
• 34:55
  Speaker 1: Court is basically saying, well, the lower court are too liberal. Now.
• 34:59
  Speaker 1: Part of that I think is forum shopping by plenty TIFFs. Right,
• 35:02
  Speaker 1: if you're going to challenge the Trump administration policy, you're
• 35:05
  Speaker 1: not going to go to Judge Kasmiric or one of
• 35:07
  Speaker 1: the other judges that Republicans go to to challenge democratic administrations.
• 35:12
  Speaker 1: But I think it also suggests again that this court is,
• 35:17
  Speaker 1: you know, not all that skeptical of a lot of
• 35:20
  Speaker 1: what the Trump administration is doing on the merits.
• 35:23
  Speaker 3: So how far to the right has the conservative super
• 35:27
  Speaker 3: majority moved the law?
• 35:29
  Speaker 1: I mean, I think the answer to that question is
• 35:31
  Speaker 1: very far. I don't think there's any question about that.
• 35:33
  Speaker 1: I mean, you know, they did most of the work
• 35:35
  Speaker 1: in prior terms. They overturn roep Wade, they got rid
• 35:37
  Speaker 1: of the permative Action, the religion cases go very far.
• 35:40
  Speaker 1: They invigorated the Second Amendment. So in that sense, their
• 35:43
  Speaker 1: work is basically done on what traditional conservatives care about.
• 35:49
  Speaker 1: To my mind, the question that is most pressing and
• 35:53
  Speaker 1: sort of remains open is not how far to the
• 35:56
  Speaker 1: right the Court is moving the law, but how far
• 36:00
  Speaker 1: to the sort of maga direction is the Court moving
• 36:04
  Speaker 1: the law or at least allowing the Trump administration to go.
• 36:08
  Speaker 1: You know, a lot of what President Trump and his
• 36:11
  Speaker 1: administration are doing doesn't fall within traditional left right boundaries.
• 36:16
  Speaker 1: It's just sort of you know, authoritarian, for lack of
• 36:19
  Speaker 1: a better term. So it's not surprising to me that,
• 36:22
  Speaker 1: you know, if the Trump administration wants to peel back
• 36:27
  Speaker 1: transgender rights, that conservatives on the Supreme Court would be
• 36:31
  Speaker 1: on board with that. What is surprising, and I think
• 36:35
  Speaker 1: frankly alarming, is the extent to which the Roberts Court
• 36:40
  Speaker 1: is facilitating the Trump administration's challenges to the rule of law.
• 36:45
  Speaker 1: So what we were talking about a little earlier with
• 36:47
  Speaker 1: defiance of court orders and other things that fall outside
• 36:51
  Speaker 1: the left right spectrum. As we've understood, it's for the
• 36:54
  Speaker 1: last hundred years or so, and are on a sort
• 36:57
  Speaker 1: of democracy and rule of law on the one hand
• 37:00
  Speaker 1: versus authoritarianism on the other.
• 37:02
  Speaker 3: Thanks so much for your analysis, Mike. That's Professor Michael
• 37:05
  Speaker 3: Dorf of Cornell Law School. And on Friday, another win
• 37:08
  Speaker 3: for the Trump administration on the emergency docket, a divided
• 37:12
  Speaker 3: court rule the administration can send eight migrants to South Sudan,
• 37:17
  Speaker 3: where they've said their risk of torture and death. I'm
• 37:20
  Speaker 3: June Grosso and that's it for this edition of the
• 37:22
  Speaker 3: Bloomberg Law Show. Remember you can always get the latest
• 37:25
  Speaker 3: legal news on our Bloomberg Law Podcast. You can find
• 37:28
  Speaker 3: them on Apple Podcasts, Spotify, and at www dot Bloomberg
• 37:33
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• 37:37
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• 37:40
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