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Upcoming Cases at the Supreme Court · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 1: The new Supreme Court term begins on Monday, and it
0:12
Speaker 1: promises to be a term with several blockbuster decisions on
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Speaker 1: the docket so far, tariffs, congressional maps, transgender rights, campaign finance,
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Speaker 1: religious rights, copyright and capital punishment, and perhaps most consequential,
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Speaker 1: several tests of President Trump's attempts to expand executive power.
0:34
Speaker 1: My guest is former United States Solicitor General Gregory Garr,
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Speaker 1: a partner at Latham and Watkins. Greig, let's start with
0:42
Speaker 1: one of the biggest cases of the term, where trillions
0:45
Speaker 1: of dollars in trade are at stake, as well as
0:48
Speaker 1: the extent of the president's authority.
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Speaker 2: If you took away tariffs, we could end up being
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Speaker 2: a third World country.
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Speaker 1: President Trump has put tariffs at the center of USA
1:00
Speaker 1: economic policy. Lower courts ruled that he overstepped his authority,
1:05
Speaker 1: but now it will be up to the Supreme Court
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Speaker 1: to decide.
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Speaker 2: It's a very important decision, and frankly, if they'd make
1:13
Speaker 2: the wrong decision, it would be a devastation for our country.
1:17
Speaker 2: We've taken in trillions of dollars.
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Speaker 3: Greig, what are the issues here.
1:21
Speaker 4: So this case involves a challenge brought by small businesses
1:26
Speaker 4: to President Trump's tariff policy imposing tariffs on products from
1:30
Speaker 4: companies around the world. Importantly, in this case, the President
1:34
Speaker 4: doesn't assert inherent executive power to impose the tariffs, and said,
1:38
Speaker 4: he claims that Congress granted him the power under a
1:41
Speaker 4: fifty year old statute called the International Emergency Economic Powers Act,
1:46
Speaker 4: or AEPA, and Section seventeen oh two of AEPA has
1:50
Speaker 4: a long list of things that the president can do
1:53
Speaker 4: if he declares an emergency, as President Trump did here
1:58
Speaker 4: on the basis of foreign trade deficits and the Futonol
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Speaker 4: crisis as to certain countries. So when the president declares
2:05
Speaker 4: such an emergency, Congress authorized him to do a number
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Speaker 4: of things, including to quote unquote regulate the importation of goods.
2:14
Speaker 4: So this statue doesn't mention tariffs expressly. Before this year,
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Speaker 4: no president in aiba's fifty year history had ever invoked
2:23
Speaker 4: it to impose tariffs, and Congress has always explicitly imposed
2:27
Speaker 4: limitations on the exercise of tariffs when it's granted that
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Speaker 4: power explicitly. But the president claims that the broad reference
2:35
Speaker 4: to regulate in this statute does authorize him to impose
2:39
Speaker 4: the tariffs on goods around the country. So far, he's
2:42
Speaker 4: lost that argument in each of the lower courts that
2:45
Speaker 4: has considered it, but the case is moving to the
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Speaker 4: Supreme Court. And one of the signature projects of the
2:52
Speaker 4: Roberts Court has been the development of the so called
2:55
Speaker 4: major Questions doctrine, which is built on the age old
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Speaker 4: principle that Congress does not hide elephants in mouseholes. So
3:04
Speaker 4: a couple of years ago, the Supreme Court in Biden
3:07
Speaker 4: versus Nebraska held the Department of Education lacked authority to
3:11
Speaker 4: institute sweeping student loan forgiveness on the basis of a
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Speaker 4: general emergency language in the Hero's Act. And before then
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Speaker 4: it held in a different case that the EPA couldn't
3:23
Speaker 4: rely on a general provision of the Clean Air Act
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Speaker 4: to enforce sweeping climate change regulation. And the challengers in
3:30
Speaker 4: this case essentially argued that the same principle compels the
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Speaker 4: conclusion that Ayapa's general reference to regulate can't be interpreted
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Speaker 4: to authorize the President to impose what would amount to
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Speaker 4: one of the biggest texts increases in US history, sort
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Speaker 4: of the elephant of all elephants.
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Speaker 2: Now.
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Speaker 4: In response, the administration claims that the Court has never
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Speaker 4: applied the major Questions doctrine to the foreign affairs context,
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Speaker 4: and that in that context, the Court should presume that
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Speaker 4: Congress would give the president mora, which is actually something
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Speaker 4: that Justice Kavanaugh suggested in a concurring opinion last year. Nevertheless,
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Speaker 4: it seems hard to square the Administration's position in this
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Speaker 4: case with the application of the Major question doctrine in
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Speaker 4: other cases, particularly given that few presidential acts have had
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Speaker 4: such a momentous economic sweep as the president's tariff program has.
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Speaker 4: So this is a very big power he's asserting, and
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Speaker 4: we're all waiting to see how the Court reacts to
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Speaker 4: this particular assertion.
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Speaker 1: So, as you mentioned, the two lower courts rule that
4:34
Speaker 1: Toompet overstepped his authority in imposing most of these tariffs.
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Speaker 1: Do you think the Supreme Court took this case to
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Speaker 1: overturn the lower courts or they would have taken the
4:44
Speaker 1: case anyway because it's such an important issue.
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Speaker 4: Yeah, I think this is one that the Supreme Court
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Speaker 4: was going to take, probably either way, but certainly given
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Speaker 4: that the lower courts and validated the president's policy and
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Speaker 4: the administration was acting for review, I think it was
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Speaker 4: pretty much automatic that the Court was going to agree
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Speaker 4: to hear the case.
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Speaker 1: Do you think that this case of the cases the
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Speaker 1: Court is going to consider this term, is this the
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Speaker 1: greatest tests of Trump's attempt to expand presidential authority?
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Speaker 4: Well, this case is different, and that again, it really
5:19
Speaker 4: just concerns the scope of the authority that Congress granted.
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Speaker 4: In other cases that I think we'll talk about, the
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Speaker 4: question is the president's assertion of his own inherent constitutional authority.
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Speaker 4: But this case really just boils down to a question
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Speaker 4: of what Congress delegated. So I mean, even if the
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Speaker 4: administration did win this case, it would still lead to
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Speaker 4: Congress the prerogative to change the law. On the other hand,
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Speaker 4: the Court might hold, again following its major questions cases,
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Speaker 4: that Congress simply didn't delegate this elephant to begin with.
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Speaker 1: Okay, So going on to a couple of other cases
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Speaker 1: that set up tests of presidential power over federal agencies
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Speaker 1: that have been into They involved Trump firing a member
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Speaker 1: of the Federal Trade Commission, Rebecca Slaughter, and a Federal
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Speaker 1: Reserve Board governor Lisa Cook, slightly different issues. So let's
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Speaker 1: start with the FTC commissioner, And is it about the
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Speaker 1: law there that says commissioners can only be removed for cause?
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Speaker 4: Right? And this is one of the cases where the
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Speaker 4: President is asserting his own inherent authority and Congress has
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Speaker 4: imposed a limitation on the president's removal authority with respective
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Speaker 4: heads of the Federal Trade Commission and requires the President
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Speaker 4: to show cause things like malfeesance or neglect of duty
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Speaker 4: or the like before he can actually remove the official.
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Speaker 4: And in this case, the President removed the official, Rebecca Slaughter,
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Speaker 4: a commissioner of the FTC, simply because he disagreed with
6:48
Speaker 4: her as a matter of policy. So this case tees
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Speaker 4: up a challenge to a nineteen thirty five decision called
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Speaker 4: Humphreys Executor, where the Court upheld the Congress's imposition of
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Speaker 4: a four cause reques arnament on the president's removal of
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Speaker 4: commissioners of the FTC. So it's basically just a redo
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Speaker 4: and a chance for the Supreme Court to reconsider it's
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Speaker 4: Humphrey's Executor precedent. The administration here is arguing, first of all,
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Speaker 4: that the FTC has changed a lot since the day
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Speaker 4: of Humphrey's Executor. In essence, this is not your grandfather's FTC.
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Speaker 4: It's got a lot more executive authority, and so whatever
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Speaker 4: constitutional basis the Court had for its decision in Humphrey's Executor,
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Speaker 4: that shouldn't apply to the FTC today. The administration also
7:33
Speaker 4: argues that if the Court doesn't accept that, it should
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Speaker 4: just go ahead and overrule the Humphreys Executor decision, which
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Speaker 4: is something a number of the more conservative justices have
7:43
Speaker 4: expressed a willingness to do in recent years. And the
7:47
Speaker 4: administration is also arguing that even if the President did
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Speaker 4: do something wrong here, a court couldn't actually order the
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Speaker 4: reinstatement of the official misslaughter here. The only remedy would
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Speaker 4: be one for back pay, which is actually the remedy
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Speaker 4: that was sought in the Humphreys Executor case. So this
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Speaker 4: is a major test of executive power. And really, although
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Speaker 4: the case arises in the context of firing an individual,
8:12
Speaker 4: ultimately it's about the president seeking to gain control of
8:15
Speaker 4: so called independent agencies by being able to place his
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Speaker 4: own preferred heads of those agencies in place.
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Speaker 1: So the Court has been chipping away at Humphrey's Executor
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Speaker 1: for a while, and Justice Elena Keigan said in one
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Speaker 1: of her recent decisions that you know, they're raring to
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Speaker 1: get rid of Humphrey's executor. Do you think Humphrey's executor
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Speaker 1: can survive this term?
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Speaker 4: You know, it sure seems like they are raring to
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Speaker 4: get rid of it, and you know, I probably would
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Speaker 4: put my money on the side of it not surviving.
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Speaker 4: That said, I mean, it would be fairly easy for
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Speaker 4: the Court to say that the FDC today is much
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Speaker 4: different than the FDC in Humphrey's executive time, and so
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Speaker 4: to you know, further narrow Humphrey's executor. But I do
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Speaker 4: think it's the case that the Justice is probably have
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Speaker 4: just had enough. So I think Humphrey's executors' day's maybe numbered.
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Speaker 1: The Court refused to let Slaughter return to her job
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Speaker 1: as the litigation goes forward, and that sets it apart
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Speaker 1: from the next case we'll talk about involving Trump's attempts
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Speaker 1: to fire Federal Reserve Board Governor Lisa Cook, and this
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Speaker 1: week the Court said that Trump can't fire Cook as
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Speaker 1: the litigation is proceeding. Is that different significant?
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Speaker 4: Yeah? I think it is. I mean, it's the one
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Speaker 4: time among all the other officials that the president has
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Speaker 4: fired that the Supreme Court has declined to grant the
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Speaker 4: administration's request to permit it to actually remove the official
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Speaker 4: once and for all, and instead, what the Supreme Court
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Speaker 4: did here was set the case for argument on the
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Speaker 4: administration's emergency request in January. Cook's case is different. Cook
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Speaker 4: is a member of the Board of Governors of the
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Speaker 4: Federal Reserve, and here the President isn't claiming that he
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Speaker 4: had the right place to fire Cook for any reason.
10:02
Speaker 4: He claims that he had cause based on allegations that
10:06
Speaker 4: she had engaged in mortgage fraud before she became a
10:09
Speaker 4: member of the FED. So that's one way in which
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Speaker 4: the case is different than the Slaughter case. And then
10:14
Speaker 4: also that the Supreme Court has indicated in prior opinions
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Speaker 4: that the FED may be different, and that it's what
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Speaker 4: the Supreme Court called a uniquely structured and quasi private
10:26
Speaker 4: entity with the unique history. So even if the Court
10:29
Speaker 4: is poised to overrule Humphrey's executor in the case of
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Speaker 4: an FDC official, it's not at all clear that the
10:35
Speaker 4: Court is poised to reach anything like that result in
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Speaker 4: the context of the FED, which I think many believe
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Speaker 4: is uniquely important in terms of its insulation from immediate
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Speaker 4: presidential control.
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Speaker 1: If the Court says Trump can't fire Cook, won't have
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Speaker 1: any trouble coming to that decision in a reasoned way,
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Speaker 1: you know. Distinguishing the FED from other independent agencies, I.
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Speaker 4: Don't think so. And you know, in fact, as I mentioned,
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Speaker 4: I mean, the Court has already acknowledged a distinction. Now,
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Speaker 4: the question in Cooks case will be how far it
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Speaker 4: wants to run with that. But certainly the FED is different.
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Speaker 4: It has roots in the old first National Bank of
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Speaker 4: the United States, and it's uniquely structured, and I think,
11:20
Speaker 4: you know, many including Justice Kavanaugh and writings off the Court,
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Speaker 4: have sort of acknowledged that there may be particular concerns
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Speaker 4: as to why that would be an agency that could
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Speaker 4: operate with some independence within our constitutional system. So we'll
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Speaker 4: have to see next.
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Speaker 1: There's a case that could have an enormous effect on
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Speaker 1: elections in dozens of congressional districts with predominantly minority populations,
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Speaker 1: and it involves a Louisiana electoral map that raised the
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Speaker 1: number of black majority US congressional districts in that state.
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Speaker 1: It's already been at the Supreme Court once.
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Speaker 4: Yeah, So the case was argued in brief last term,
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Speaker 4: and the court couldn't reach a decision, they set it
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Speaker 4: for reargument and consideration this term, and this case really
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Speaker 4: has sort of had a long and tertious history already.
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Speaker 4: So after the twenty twenty census, Louisiana legislature, like many states,
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Speaker 4: went back and redrew its congressional maps, and the new
12:15
Speaker 4: map it drew had one majority black district out of
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Speaker 4: six districts statewide. At that point, a group of black
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Speaker 4: voters brought suit against the state, arguing that the plan
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Speaker 4: impermissively diluted the votes of black residents in violation of
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Speaker 4: Section two of the Voting Rights Act because nearly a
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Speaker 4: third of the state's population is black. So the lower
12:35
Speaker 4: courts ultimately ordered the state to draw a new map,
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Speaker 4: and the new map contained a second black majority district,
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Speaker 4: But this time a group of non black residents went
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Speaker 4: to federal court and argued that the twenty twenty four
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Speaker 4: map impermissibly took race into account in the other direction
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Speaker 4: and so it was itself invalid. So the state basically
12:55
Speaker 4: went to the Supreme Court, said it was between Iraq
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Speaker 4: and a hard place and asked a court to resolved it.
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Speaker 4: And as you noted the Court was enabled to do
13:03
Speaker 4: so last term, So it's set up for reargument again
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Speaker 4: and basically up the ante by asking the parties to
13:09
Speaker 4: brief the question of whether the state's intentional creation of
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Speaker 4: a second majority minority district to comply with the Voting
13:16
Speaker 4: Rights Act actually violated the equal protection clause. So now
13:20
Speaker 4: the Court is faced with the question that is sort
13:22
Speaker 4: of long beleegure at the Court in voting rights cases,
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Speaker 4: which is, how do you square the fact that you
13:26
Speaker 4: have to take race into account to comply with the
13:29
Speaker 4: protections of the Voting Rights Act with the fact that
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Speaker 4: the constitution Equal Protection class generally prohibit states from taking
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Speaker 4: race into account and making important decisions. So this case
13:39
Speaker 4: could definitely have a major effect on Section two litigation
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Speaker 4: going forward. The Government, for its part, argues that Section
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Speaker 4: two's results tests is unconstitutional if it requires the states
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Speaker 4: to draw majority minority districts where race predominates, and that
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Speaker 4: basically what a planet has to show to prevail under
13:57
Speaker 4: its view of the Voting Rights Act, as it must
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Speaker 4: show that the new district is superior under race neutral
14:03
Speaker 4: districting principles. So the Voting Rights Act is one area
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Speaker 4: where We've seen some consequential decisions in the past few years,
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Speaker 4: and this is a case that definitely should be followed closely.
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Speaker 1: The Court gutted part of the Voting Rights Act in
14:16
Speaker 1: the Shelby County versus Holder case in twenty thirteen, and
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Speaker 1: some justices have questioned the constitutionality of race based districts.
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Speaker 1: A quote the challenges used here was one from Justice
14:29
Speaker 1: Brett kavanav the authority to conduct race based cannot extend
14:33
Speaker 1: indefinitely into the future. Does it seem as if the
14:36
Speaker 1: Court is heading in that direction to get rid of
14:41
Speaker 1: the consideration of race in map drilling.
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Speaker 4: Well, the hesitation and reluctance and hostility to consideration of
14:48
Speaker 4: race in a number of areas, including affirmative action and
14:50
Speaker 4: the like, has definitely been one of the sort of
14:54
Speaker 4: emphasises of this court. Interestingly, the Court just a couple
14:58
Speaker 4: of years ago, in a case on Alabama, by a
15:01
Speaker 4: five to four vote with the Chief Justice and the
15:03
Speaker 4: majority joined by the more liberal justices and Justice Kavanaugh,
15:07
Speaker 4: upheld a map that was challenged out of Alabama. So
15:10
Speaker 4: it would be something of a right turn for the
15:14
Speaker 4: Court to go ahead and validate section two the voting
15:18
Speaker 4: rights act on constitutional grounds more broadly, and we don't know.
15:22
Speaker 4: I think, based on the fact that the Court was
15:24
Speaker 4: unable to reach a decision last term in this case,
15:28
Speaker 4: it suggests that the justices are struggling. The fact that
15:31
Speaker 4: they've added this broader constitutional question doesn't mean that the
15:34
Speaker 4: Justices have to resolve it on that basis. I think
15:37
Speaker 4: if there's anything we can sort of speculate at this
15:40
Speaker 4: point is that the Justices are closely divided on this issue.
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Speaker 1: Coming up next on the Bloomberg Law Show, I'll continue
15:46
Speaker 1: this conversation with Gregory gar former US Solicitor General. We'll
15:51
Speaker 1: discuss upcoming cases on transgender rights, religious rights, copyright, and
15:57
Speaker 1: capital punishment. I'm June Grosso, and you're listening to Bloomberg.
16:02
Speaker 1: Lindsay Heacox is a college senior and transgender woman who
16:07
Speaker 1: participates in club level running in soccer at Boise State University.
16:12
Speaker 1: Heacock says that she should have the opportunity to play
16:15
Speaker 1: sports like everyone else.
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Speaker 4: I don't even think most of my teammates would even
16:21
Speaker 4: think of me as trans. I just look like a
16:25
Speaker 4: regular girl.
16:26
Speaker 1: But in twenty twenty, Idaho passed the first law of
16:29
Speaker 1: its kind barring transgender women and girls from participating on
16:34
Speaker 1: all female teams starting in grade school. The Ninth Circuit
16:38
Speaker 1: Court of Appeals ruled that the law couldn't be enforced
16:42
Speaker 1: against Heacock's but now her case, along with that of
16:45
Speaker 1: a fifteen year old transgender girl from West Virginia, is
16:50
Speaker 1: before the Supreme Court. I've been talking to former United
16:53
Speaker 1: States Solicitor General Gregory Garr, a partner at Latham and Watkins.
16:58
Speaker 1: So greg, the Supreme Court sort is going to decide
17:01
Speaker 1: whether states can ban transgender girls and women from competing
17:06
Speaker 1: for their schools on female athletic teams. The appeals are
17:10
Speaker 1: from the Fourth Circuit and the Ninth Circuit, which blocked
17:13
Speaker 1: the states of West Virginia and Idaho from fully enforcing
17:18
Speaker 1: their bans. But the Fourth Circuit's decision was based on
17:22
Speaker 1: Title nine and the Ninth Circuit's decision was based on
17:26
Speaker 1: the Equal Protection Clause.
17:28
Speaker 4: So it wouldn't be a Supreme Court term with that.
17:31
Speaker 4: A return to the culture wars in this case definitely
17:33
Speaker 4: presents that, and the cases from both circuits do present
17:36
Speaker 4: the different questions of the Equal Protection Clause in Title
17:39
Speaker 4: nine and challenges to the validity of state laws that
17:42
Speaker 4: prohibit transgender girls and women from competing in girls and
17:46
Speaker 4: women's sports. These are laws that I think about half
17:49
Speaker 4: of the states have, and the main legal question in
17:53
Speaker 4: the case is whether it's sex discrimination when a state
17:56
Speaker 4: mandates that only biological females can compete in female sports.
18:03
Speaker 4: Both cases involve transgender girls who want to compete on
18:07
Speaker 4: female cross country teams. So last year, as you remember,
18:11
Speaker 4: in US versus Scurmetti, the Court held that a Tennessee
18:14
Speaker 4: law banning puberty blockers and homeowned therapy for transgender miners
18:19
Speaker 4: did not engage in sex based discrimination, violating the Equal
18:23
Speaker 4: Protection Clause, and it seems likely that the courtal reached
18:26
Speaker 4: a similar conclusion here. In fact, picking up on Justice
18:29
Speaker 4: Ginsberg's own writings, the government argues that the laws here
18:33
Speaker 4: simply take into account the physical differences between men and women,
18:37
Speaker 4: and that therefore they don't really engage in impermissible discrimination
18:41
Speaker 4: to begin with. Now that plaintiffs sort of counter with
18:44
Speaker 4: the Supreme Court's decision in boss Stock versus Clayton County,
18:48
Speaker 4: where the Court held the discrimination based on gender or
18:50
Speaker 4: sexual identity is discrimination on the basis of sex under
18:55
Speaker 4: Title seven. But the Supreme Court distinguished, and I think
18:58
Speaker 4: limited boss Stock and the Scurmetti case last year, and
19:02
Speaker 4: I think that challengers probably have a hard argument in
19:05
Speaker 4: pushing BASTA to the Supreme Court. In this case, the
19:09
Speaker 4: supporters of these laws also argue that allowing biological males
19:14
Speaker 4: to compete in women's sports would defeat the whole purpose
19:17
Speaker 4: of Title nine. So you know, this is again one
19:20
Speaker 4: of these cases that really sort of hits hard on
19:22
Speaker 4: the culture wars, and the Court I think will be
19:25
Speaker 4: following up Byette's decision last year in Screametti and we'll
19:28
Speaker 4: see what it does.
19:29
Speaker 1: Twenty seven states have laws or regulations that restrict transgender
19:34
Speaker 1: student athletes.
19:35
Speaker 3: So if the Court upholds the state.
19:38
Speaker 1: Bans in these cases, would all those laws then be
19:42
Speaker 1: valid or does it depend on what they say the
19:46
Speaker 1: exact wording.
19:48
Speaker 4: Well, it depends on what they say. But I think,
19:50
Speaker 4: you know, as a general matter, this is an up
19:52
Speaker 4: or down question. I mean, I think if the Court
19:54
Speaker 4: holds that the laws in the two cases here are
19:58
Speaker 4: constitutional and don't violate Time nine, then I think that
20:01
Speaker 4: the other laws will almost certainly pass muster as well, And.
20:05
Speaker 1: It also wouldn't be a Supreme Court term without a
20:08
Speaker 1: religious rights case. A Rastafarian wants to suit prison officials
20:13
Speaker 1: in Louisiana who forcibly shaved him bald in violation of
20:18
Speaker 1: his religious beliefs. The Court has considered a lot of
20:21
Speaker 1: cases involving the rights of Christians, but I don't know
20:25
Speaker 1: of any until now involving the rights of Rastafarians.
20:29
Speaker 4: Yeah, and the course has been very active in the
20:31
Speaker 4: area of religion recently, and you know, generally as sided
20:34
Speaker 4: with proponents of religious liberty. The facts of this case
20:37
Speaker 4: are really pretty extreme and outrageous. In this case is
20:41
Speaker 4: brought by a Rastafarian, Immey, who is suiting a state
20:45
Speaker 4: prison official under what's called the Religious land Use in
20:47
Speaker 4: Institutional Persons Act or ur LUPA, and he claims that
20:51
Speaker 4: when he was transferred to a new prison, the prison
20:54
Speaker 4: official allegedly handcuffed him to a chair and actually shaved
20:58
Speaker 4: his head, even though he told the guard that he
21:01
Speaker 4: had taken religious vow not to cut off his hair,
21:03
Speaker 4: which he had honored for over a decade, and actually
21:07
Speaker 4: handed the guard a copy of a Fifth Circuit decision
21:10
Speaker 4: holding that cutting the hair of a Rastafarian inmate would
21:13
Speaker 4: violate the inmate's religious liberties, so that the inmate brought
21:17
Speaker 4: suit seeking monetary damages against the prison officials involved in
21:22
Speaker 4: this process. So under a different law, the Religious Freedom
21:25
Speaker 4: Restoration Act, the Supreme Court is held that inmates can
21:29
Speaker 4: get money damages against federal officers who violate their religious liberties.
21:34
Speaker 4: And so the basic questions whether the same rule would
21:36
Speaker 4: apply to the state officers under our LUPA the parallel statute,
21:41
Speaker 4: and it would seem like the answer would have to
21:42
Speaker 4: be yes. But the state argues that because our LUPA
21:45
Speaker 4: was passed under Congress's spending Clause power, where Congress generally
21:49
Speaker 4: attaches strings to federal funding grants, the state argues that
21:54
Speaker 4: a different rule applies because the state has never agreed
21:57
Speaker 4: to these sorts of terms to be subjected to money
21:59
Speaker 4: to damages suits. And then the state also argues that
22:02
Speaker 4: if the court accepts the inmate's position, it's going to
22:05
Speaker 4: only exacerbate the shortage of people who are willing to
22:08
Speaker 4: serve as prison guards. I'm not sure that that's going
22:11
Speaker 4: to be enough here. I mean, I think that the
22:14
Speaker 4: facts of this case in particular may weigh in the
22:16
Speaker 4: Court and the Trump administration. Here is actually supporting the
22:20
Speaker 4: inmate in this case, so that the state may have
22:23
Speaker 4: an uphill battle in his hands. But we'll see.
22:26
Speaker 1: And it was the Fifth Circuit that threw out his lawsuit,
22:29
Speaker 1: even though it was a Fifth Circuit decision that he
22:31
Speaker 1: was bending about.
22:32
Speaker 4: Yeah. Well, and really, at this point, it's the separate
22:35
Speaker 4: question of not whether the law is violated, but whether
22:38
Speaker 4: he could get monetary damages. And in fairness to the state,
22:41
Speaker 4: most of the lower courts had held to this point
22:43
Speaker 4: that you cannot get monetary damages against the prison official
22:46
Speaker 4: under or LUPA. So it's definitely interesting that the court
22:49
Speaker 4: agreed to take the case.
22:51
Speaker 1: Nevertheless, so the court is going to hear another death
22:54
Speaker 1: penalty case. It hurt a couple last term. This time
22:58
Speaker 1: it's about what defendants have to show in order to
23:02
Speaker 1: prove that they're mentally disabled and thus ineligible for the
23:06
Speaker 1: death penalty.
23:07
Speaker 4: Yeah, and the death totally has actually been a pretty
23:10
Speaker 4: interesting area for this court. Last term it had three
23:13
Speaker 4: death penalty cases and the death row inmate won in
23:17
Speaker 4: all three of those cases. And so this term, as
23:20
Speaker 4: you said, it's revisiting the constitutional limits on the execution
23:23
Speaker 4: of intellectually disabled individuals. In a case called Atkins versus Virginia,
23:29
Speaker 4: the court held at the eighth Amendment prohibits the execution
23:32
Speaker 4: of individuals who are intellectually disabled, which has generally been
23:36
Speaker 4: defined to mean someone having an IQ of seventy or below.
23:39
Speaker 4: And so the question in this case is what are
23:41
Speaker 4: court's supposed to do when they're presented with multiple IQ scores,
23:46
Speaker 4: one of which falls below the line. And in this case,
23:49
Speaker 4: the inmate had multiple IQ scores of seventy five, seventy four,
23:53
Speaker 4: seventy two, seventy eight, and seventy four again, and so
23:56
Speaker 4: all five of these scores were above seventy. Of the scores,
24:00
Speaker 4: the seventy two actually falls below the line if you
24:04
Speaker 4: accept the standard range for err, which would put his
24:06
Speaker 4: score at sixty nine. The Court of Appeals nevertheless held
24:10
Speaker 4: that the death sentence should be set aside. The inmate
24:13
Speaker 4: argues that it was right and that you could actually
24:16
Speaker 4: just look beyond the low IQ score and if you
24:18
Speaker 4: looked sort of holistically at the evidence, including testimony about
24:22
Speaker 4: the inmates intellectual disability, that it was unconstitutional to execute him.
24:29
Speaker 4: But the state argues that the fact that there are
24:31
Speaker 4: so many scores above seventy should be in itself decisive,
24:36
Speaker 4: and that this is an area where the courts should
24:38
Speaker 4: defer to the state's judgment, at least where it's based
24:41
Speaker 4: on multiple ice Q scores about seventy. So it's an
24:45
Speaker 4: interesting question. And again, I mean this court, you know,
24:49
Speaker 4: maybe a little bit against what some might expect, has
24:52
Speaker 4: actually been more receptive to the claims of death row inmates.
24:56
Speaker 4: But we'll see if less terms run of successes carries
24:59
Speaker 4: over into this.
25:00
Speaker 1: The last on our list, but certainly not least a
25:04
Speaker 1: one billion dollar jury verdict is at issue. The Supreme
25:08
Speaker 1: Court is going to consider shielding Cox Communications from a
25:11
Speaker 1: one billion dollar lawsuit by the music industry.
25:16
Speaker 4: Yeah, finally we get to a business case, and the
25:18
Speaker 4: court every once in a while to size one of those.
25:21
Speaker 4: So that this case involves the important copyright question of
25:24
Speaker 4: whether an Internet service provider can be held contributorially liable
25:28
Speaker 4: for its customers act of copyright infringement. So the internet
25:32
Speaker 4: service provider allows streaming and someone at his home improperly
25:37
Speaker 4: downloads music. The Court of Appeals held that a culpable
25:41
Speaker 4: intent to facilitate infringement could be inferred simply on the
25:46
Speaker 4: basis that the internet service provider continued to provide services
25:50
Speaker 4: after it knew that those services were being used to
25:53
Speaker 4: commit direct infringement, and with the challengers argued here pointing
25:58
Speaker 4: to prior Supreme Court precedent this area is that near
26:02
Speaker 4: knowledge of an actual infringing use is insufficient to impose
26:06
Speaker 4: secondary liability on the seller of goods or services, and
26:10
Speaker 4: that instead what the copyright infringement law requires is a
26:15
Speaker 4: culpable intent to facilitate direct infringement, which is what the
26:19
Speaker 4: plane of much show, and that would be like evidence
26:21
Speaker 4: that the merchant urged another to infringe or actually set
26:25
Speaker 4: up a platform that lacked any significant non infringing uses
26:30
Speaker 4: anything apart from that. The internet service provider Cox Communication
26:34
Speaker 4: here argues it would create a substantial disincentive for the
26:38
Speaker 4: provision of universal Internet service, which could affect all of us,
26:43
Speaker 4: or at least anyone in a home or a teenager
26:45
Speaker 4: has improperly downloaded music.
26:47
Speaker 3: But yet a jury found against Cox.
26:50
Speaker 4: Yeah, a jury found against Cox and held it liable
26:53
Speaker 4: for a billion dollars in damages. So it's a really
26:56
Speaker 4: big deal for internet services providers. Trump supported review in
27:01
Speaker 4: this case, and it certainly is one of the most
27:04
Speaker 4: important business cases pending before the court.
27:07
Speaker 1: The Court's going to be accepting more cases as the
27:09
Speaker 1: term goes along.
27:10
Speaker 3: You have the shadow dock. It's so active.
27:12
Speaker 1: But do you think that in the end this term
27:14
Speaker 1: is going to be you know, the headlines afterwards will
27:17
Speaker 1: be about the expansion or perhaps limitation of presidential power.
27:24
Speaker 4: No question, one of the big sort of headline questions
27:27
Speaker 4: of this term will be the exercise of executive power.
27:33
Speaker 4: I mean, we have an administration that is boldly exercising
27:36
Speaker 4: executive power across the number of fronts, and those cases
27:39
Speaker 4: are now coming to the Supreme Court. So I think
27:42
Speaker 4: that it's likely that that will be one of the
27:44
Speaker 4: headlines of this term. Whether the headline is that the
27:48
Speaker 4: president has succeeded in expanding executive power or that the
27:52
Speaker 4: Supreme Court has pushed back against assertions of executive power,
27:57
Speaker 4: we don't know. There are a number of really important
27:59
Speaker 4: case is already on the docket, and as you indicated,
28:03
Speaker 4: there are more cases in the pipeline, in the emergency
28:05
Speaker 4: docket and otherwise, and if you go back over the
28:08
Speaker 4: last couple of terms, you know many of the most
28:10
Speaker 4: important cases are added to the Court's docket after this
28:14
Speaker 4: point in time, so this is really just the tip
28:16
Speaker 4: of the iceberg.
28:17
Speaker 1: Thanks for spending so much time with me, Greg, I
28:19
Speaker 1: always enjoy our yearly previews of the Supreme Court term.
28:24
Speaker 1: That's former US Solicitor General Gregory Garr, a partner at
28:28
Speaker 1: Latham and Watkins. And that's it for this edition of
28:31
Speaker 1: the Bloomberg Law Show. Remember you can always get the
28:33
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28:37
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Speaker 1: pm Wall Street Time. I'm Jim Grosso, and you're listening
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