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Will the Supreme Court Be Deciding the Presidential Election? · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:10
Speaker 1: The extremely tight presidential race is fueling visions of a
0:14
Speaker 1: sequel to Bush vy Gore, the controversial Supreme Court decision
0:19
Speaker 1: in two thousand that put George W. Bush in the
0:22
Speaker 1: White House over Vice President Al Gore. Judges around the
0:26
Speaker 1: country are grappling with the more than one hundred and
0:30
Speaker 1: ninety election related lawsuits filed since twenty twenty three, and
0:35
Speaker 1: litigants are already positioning their cases to seek quick Supreme
0:39
Speaker 1: Court help if needed. With the six justice conservative majority,
0:44
Speaker 1: which includes three justices appointed by former President Donald Trump,
0:49
Speaker 1: many are concerned that politics will play a role in
0:52
Speaker 1: any decision. A new Pew Research poll shows that a
0:56
Speaker 1: majority of voters do not have confidence that the Supreme
1:00
Speaker 1: Court will be politically neutral in resolving potential legal challenges
1:05
Speaker 1: around the twenty twenty four presidential election. Despite that, most
1:09
Speaker 1: election law experts say the legal realities and the math
1:14
Speaker 1: make it unlikely they'll be a sequel to Bush v. Gore.
1:17
Speaker 1: Here to explain why is Bloomberg Supreme Court reporter Greg Storr.
1:22
Speaker 1: You know what people have in mind when they think
1:24
Speaker 1: about this election season. The Supreme Court, they think about
1:28
Speaker 1: Bush v. Gore, So remind us about Bush v. Gore
1:32
Speaker 1: and why it might or might not be relevant this year.
1:36
Speaker 2: Sure, so, Bush v. Gore came in the context of
1:38
Speaker 2: an election that was so close between George W. Bush
1:42
Speaker 2: and al Gore that it was decided by a single
1:44
Speaker 2: state in less than a thousand votes. So after that
1:48
Speaker 2: state was certified for Bush, al Gore used a provision
1:52
Speaker 2: in Florida law that lets the loser of a very
1:55
Speaker 2: close election can test the results, and that is essentially
2:00
Speaker 2: what led to a ruling by the Florida Supreme Court
2:04
Speaker 2: ordering the recounts of some ballots in the state. And
2:07
Speaker 2: when the Supreme Court overturned that ruling on December twelfth
2:11
Speaker 2: of twenty twenty, that had the effect of sealing that
2:14
Speaker 2: state and therefore the election for George W. Bush.
2:17
Speaker 1: Most election law experts that I've talked to, and apparently
2:20
Speaker 1: that you've talked to don't think that we'll have another
2:23
Speaker 1: Bush v. Gore this election season. Tell us why briefly,
2:28
Speaker 1: then we will go into detail.
2:30
Speaker 2: Now, Well, part of it is the math that I
2:32
Speaker 2: alluded to there, which is in order for there to
2:34
Speaker 2: be a Bush d. Gore type case, you have to
2:36
Speaker 2: have a legal issue that will resolve enough to shift
2:40
Speaker 2: or decide the election. Looking at say twenty twenty, you know,
2:44
Speaker 2: Donald Trump would have needed to flip at least three
2:46
Speaker 2: states to erase Jo Biden's victory, and the Supreme Court
2:49
Speaker 2: showed no interest in getting involved. So that's one thing.
2:52
Speaker 2: And the other thing, which we can get into more,
2:54
Speaker 2: is that, for a variety of reasons, the Supreme Court
2:57
Speaker 2: and other actors in the system, state courts have sort
2:59
Speaker 2: of narrowed the universe of possible cases and issues that
3:04
Speaker 2: might get to the Supreme Court in a way that
3:05
Speaker 2: would decide the election.
3:07
Speaker 1: Yeah, let's talk about how they, as you put in
3:09
Speaker 1: your story, narrow the pathways, so to speak, to reach
3:13
Speaker 1: the Supreme Court. So first, we have, and we talked
3:15
Speaker 1: about this so much last year and even before last year,
3:20
Speaker 1: the independent State Legislature theory that the justice is rejected.
3:24
Speaker 2: Yeah. So this is a Supreme Court case known as
3:27
Speaker 2: Moore versus Harper, and essentially what one side of that
3:30
Speaker 2: case was arguing is that state supreme courts have basically
3:34
Speaker 2: no rule in setting the election rules, that state supreme
3:37
Speaker 2: courts cannot interpret what the state legislature has done in
3:43
Speaker 2: a way that affects how the election is going to
3:46
Speaker 2: be conducted. And the Supreme Court rejected that theory. It
3:50
Speaker 2: would have given the Supreme Court itself a very broad
3:53
Speaker 2: authority to say, hey, State Supreme Court, you have no
3:56
Speaker 2: jurisdiction here. We're going to enforce the will of the legislator.
4:00
Speaker 2: There's still, though, a kind of narrower argument here, which
4:04
Speaker 2: is that if the US Supreme Court said, if a
4:08
Speaker 2: state court is interpreting a state law in such a
4:11
Speaker 2: way that it departs from sort of the ordinary bounds
4:14
Speaker 2: of judicial review, that the Supreme Court can step in,
4:18
Speaker 2: even though it doesn't usually reverse the state court on
4:20
Speaker 2: a matter of state law, and say, State, Supreme Court,
4:23
Speaker 2: you've gone so far beyond what you're supposed to do
4:25
Speaker 2: that you've actually violated the US Constitution and the provisions
4:29
Speaker 2: that govern presidential and congressional elections.
4:32
Speaker 1: And how have the Justices limited the authority of federal
4:36
Speaker 1: judges in election cases.
4:39
Speaker 2: So this is something that has become known as the
4:41
Speaker 2: Percel principle. The Supreme Court has said in a variety
4:45
Speaker 2: of contexts that a federal judge can't come in at
4:49
Speaker 2: the last minute and say some state law is unconstitutional
4:55
Speaker 2: and block it just before an election. And the concern
4:58
Speaker 2: there is that they'll be creating too much confusion and
5:01
Speaker 2: chaos right before the election. Now, at least as it's
5:05
Speaker 2: been applied so far, this is only something that applies
5:07
Speaker 2: to federal judges. It doesn't apply to say what a
5:10
Speaker 2: state supreme court does. But it does apply to the
5:13
Speaker 2: Supreme Court itself, at least to the extent that the
5:15
Speaker 2: Supreme Court has articulated it. And so what that potentially
5:19
Speaker 2: means is that even if the Supreme Court sees something
5:23
Speaker 2: you know tomorrow that it thinks the state is doing
5:26
Speaker 2: that's unconstitutional, that the Supreme Court won't jump in in
5:31
Speaker 2: and tell the state you've got to change what you're doing,
5:34
Speaker 2: because that might just create confusion. So, for example, there's
5:39
Speaker 2: something that is pending right now where RFK Junior is
5:42
Speaker 2: trying to get his name off the ballot in a
5:44
Speaker 2: couple of states, in Wisconsin and Michigan, and the Supreme
5:47
Speaker 2: Court might well say in that case, you know, we're
5:50
Speaker 2: not going to come in and tell a state where
5:53
Speaker 2: voting has already begun suddenly you have to change who's
5:57
Speaker 2: on the ballot. Even if we think that rus could
6:00
Speaker 2: be on the ballot there.
6:01
Speaker 1: So people have pointed to the fact that in twenty
6:04
Speaker 1: twenty there were some sixty odd cases that Trump or
6:09
Speaker 1: his followers brought and that the Supreme Court didn't intervene
6:13
Speaker 1: in any case. But has the Supreme Court gotten more
6:16
Speaker 1: brazen about interfering? I mean, looking at one of the
6:20
Speaker 1: most controversial decisions of the term that allowed Trump to
6:24
Speaker 1: avoid a federal prosecution on election interference grounds. I mean,
6:27
Speaker 1: most people thought that the Court would.
6:29
Speaker 2: Never go that far, No question, that was a very
6:32
Speaker 2: bold decision, and the Court decided more than it needed
6:36
Speaker 2: to in that case. The question is whether that translates
6:39
Speaker 2: into the election context. And for the reasons I sort
6:42
Speaker 2: of laid out there, and you know, the law professors
6:45
Speaker 2: and others I talked to for the story that I wrote,
6:48
Speaker 2: the overall senses that in terms of actually managing the election,
6:52
Speaker 2: the Supreme Court would very much like to get out
6:55
Speaker 2: of it. And you see this in a variety of contexts.
6:57
Speaker 2: For example, in the context of Jerry and the Supreme
7:01
Speaker 2: Court has said, we don't want to be involved in
7:03
Speaker 2: deciding whether districts are too political. Now that decision got
7:07
Speaker 2: a lot of criticism, but it is a sign of
7:10
Speaker 2: the Supreme Court and John Roberts in particular, really not
7:13
Speaker 2: wanting to be more deeply in this sort of stuff
7:16
Speaker 2: than they absolutely have to.
7:18
Speaker 1: So you also point out that state courts are also
7:21
Speaker 1: taking some issues off the table. So let's turn to
7:25
Speaker 1: the swing state of Georgia, which has had a lot
7:29
Speaker 1: of litigation about elections this year. So tell us what
7:33
Speaker 1: happened in Georgia recently.
7:35
Speaker 2: Yeah, So, Georgia, a state election board run by Republicans
7:39
Speaker 2: put in place a couple rules, and they included one
7:43
Speaker 2: that said you have to have a hand counting of
7:46
Speaker 2: ballots in every county, and another one that said that
7:50
Speaker 2: county officials have to conduct an inquiry into the correctness
7:54
Speaker 2: of the election results before actually certifying them. And a
7:57
Speaker 2: lower court state judge in Georgia struck that down, and
8:01
Speaker 2: then the Georgia's Supreme Court also rejected the challenge to that,
8:04
Speaker 2: and that essentially meant that that rule, which could have
8:07
Speaker 2: been a very significant deal because it could have significantly
8:11
Speaker 2: slowed down the election results in Georgia, but that rule
8:13
Speaker 2: is now off the table. And that was one that
8:16
Speaker 2: some folks were very very worried about. So it's by
8:19
Speaker 2: no means everything that state courts are taking off the table.
8:22
Speaker 2: But there are a lot of issues, both very recently
8:25
Speaker 2: and over the past months and years that state courts
8:28
Speaker 2: have tried to get resolved in a way that doesn't
8:31
Speaker 2: prevent an issue a moment of crisis for the US
8:35
Speaker 2: Supreme Court.
8:35
Speaker 1: There are two cases before the Court now where they
8:38
Speaker 1: could get involved or not. Virginia is asking the justices
8:44
Speaker 1: to revive the state's purge of voter rolls in these
8:48
Speaker 1: final days before the election.
8:51
Speaker 2: Yeah, Virginia, of course worth mentioning not a swing state
8:55
Speaker 2: that we're expecting to help decide who actually wins. It's
8:58
Speaker 2: a state that is almost certainly going for Kamala Harris.
9:01
Speaker 2: But in Virginia, under the order of the governor there,
9:05
Speaker 2: the state was purging its voter rules of the state
9:09
Speaker 2: says believed to be non citizens who shouldn't be on
9:12
Speaker 2: the voting rules, and that was halted by a federal court,
9:16
Speaker 2: and the state is now asking the Supreme Court to
9:20
Speaker 2: let that purge continue. The estimates that are out there
9:24
Speaker 2: are that it's roughly sixteen hundred people whose voter registrations
9:28
Speaker 2: are canceled. We should know potentially in the next day
9:32
Speaker 2: or two whether the Supreme Court is going to let
9:34
Speaker 2: that purge go forward.
9:35
Speaker 1: So now we have I want to say Pennsylvania is
9:37
Speaker 1: a critical swing state. It's a swing state and it's critical.
9:41
Speaker 1: So there are a couple of cases sort of ongoing
9:44
Speaker 1: in Pennsylvania. But tell us about the one that Republican
9:48
Speaker 1: Party is asking the Supreme Court to take.
9:51
Speaker 2: Yeah, you're right, there's a lot of litigation in Pennsylvania,
9:54
Speaker 2: and we may well see more litigation at the Supreme
9:57
Speaker 2: Court before this is all said and done. The one
10:00
Speaker 2: that's there now has to do with people who voted
10:04
Speaker 2: by mail, and in Pennsylvania, what you're supposed to do
10:07
Speaker 2: is you're supposed to put your ballot inside a so
10:10
Speaker 2: called secrecy envelope. Then you put it inside the bigger
10:13
Speaker 2: envelope that you're going to mail, and when officials receive it,
10:17
Speaker 2: they can't process it yet, but what they can do
10:19
Speaker 2: is they can weigh it and they can determine whether
10:23
Speaker 2: you may have forgotten to put put the secrecy envelope
10:26
Speaker 2: in there. And so what officials in Pennsylvania did is
10:29
Speaker 2: for those people who did not seemingly include their secrecy envelope.
10:33
Speaker 2: They let them know and let those people cast a
10:38
Speaker 2: provisional ballot that had the effect of sort of superseding
10:42
Speaker 2: the one that they had mailed that was going to
10:44
Speaker 2: be invalid because it didn't include the secrecy envelope. And
10:46
Speaker 2: so the question is whether those provisional ballots are going
10:49
Speaker 2: to count. And we don't know the exact number of
10:52
Speaker 2: ballots that are an issue here. I've seen one estimate
10:54
Speaker 2: that it could be anywhere between this is by law
10:57
Speaker 2: professor Rick Pildas, anywhere between four hundred and four thousand.
11:00
Speaker 2: But the Republican Party is arguing that under state law,
11:04
Speaker 2: those ballots can't be counted. That election officials did not
11:08
Speaker 2: have the authority to say we're going to essentially declare
11:13
Speaker 2: the mail in ballot void and let you cast the
11:16
Speaker 2: provisional ballot. So anyway, that is now at the Supreme Court,
11:20
Speaker 2: the Republicans are asking them to put a lower court
11:22
Speaker 2: ruling on hold that allowed the provisional ballots to be counted.
11:26
Speaker 2: One possibility here, because it is sort of similar to
11:30
Speaker 2: a dispute we had four years ago, is that the
11:32
Speaker 2: Supreme Court, at least for now, will say okay, what
11:35
Speaker 2: you need to do is to segregate those provisional ballots,
11:38
Speaker 2: the ones that may or may not count, and we'll
11:40
Speaker 2: figure out later whether they actually count. And so it
11:44
Speaker 2: might be a way for the court to kick the
11:46
Speaker 2: can down the road just a little bit, so that
11:48
Speaker 2: they don't actually have to decide this issue until unless
11:52
Speaker 2: it actually matters in the outcome.
11:53
Speaker 1: Coming up, i'll continue this conversation with Bloomberg Supreme Court
11:57
Speaker 1: reporter Greg Storre. We'll talk more about pencils. A federal
12:01
Speaker 1: judge in that state made a ruling just today on
12:04
Speaker 1: overseas ballots. You're listening to Bloomberg. The election is less
12:09
Speaker 1: than a week away, and we've seen a flurry of
12:11
Speaker 1: last minute decisions from state and federal courts across the
12:15
Speaker 1: country in cases challenging voting rules. In the pivotal swing
12:20
Speaker 1: state of Pennsylvania, just today, a federal judge threw out
12:24
Speaker 1: a challenge brought by six of the state's Republican lawmakers
12:28
Speaker 1: over overseas voting. The Republicans wanted to make state election
12:33
Speaker 1: officials institute new checks to confirm the eligibility and identity
12:38
Speaker 1: of soldiers, sailors, and others who vote from overseas, but
12:43
Speaker 1: federal Judge Christopher Connor said he agreed with the defendants
12:46
Speaker 1: Secretary of State Al Schmidt and one of his top deputies,
12:50
Speaker 1: who argued there were no grounds to sue and that
12:53
Speaker 1: the case was launched too late and too close to
12:56
Speaker 1: election day. I've been talking to Bloomberg Supreme Court reporter store.
13:01
Speaker 1: There are so many election cases going on in Pennsylvania
13:04
Speaker 1: it's hard to keep track of them. But another fight
13:07
Speaker 1: is over whether mail in ballots will count if the
13:10
Speaker 1: voter didn't put the right date on the envelope. I
13:14
Speaker 1: believe that the latest decision was that mail in ballots
13:19
Speaker 1: without the correct date will not be counted. Is that
13:23
Speaker 1: decision also at the Supreme Court. I'm confused as to
13:26
Speaker 1: what stage that's at.
13:28
Speaker 2: That is not yet at the Supreme Court. It is
13:30
Speaker 2: still percolating. I don't know precisely the state of play
13:34
Speaker 2: in that one, but it is an issue that has
13:37
Speaker 2: been very controversial and it may well end up at
13:41
Speaker 2: the Supreme Court if, particularly if Pennsylvania is so close
13:44
Speaker 2: that those ballots might matter.
13:46
Speaker 1: I'm thinking about Bush figor again, Greg. If one state
13:49
Speaker 1: is so so close and there are these issues, I
13:51
Speaker 1: feel like the Supreme Court might get involved in this.
13:54
Speaker 1: All the experts say no, But I have this nagging feeling.
13:56
Speaker 1: Greg tell us, because a lot of people probably don't
14:00
Speaker 1: know about this Electoral Count Reform Act, tell us about that.
14:04
Speaker 2: Yes. So this is the law that Congress passed in
14:07
Speaker 2: twenty twenty two, largely in response to what happened in
14:10
Speaker 2: twenty twenty and the efforts by Donald Trump to get
14:16
Speaker 2: Mike Pence, who as Vice president was presiding over the
14:19
Speaker 2: counting of electoral votes, to get him to take steps
14:22
Speaker 2: to essentially override the will of the voters, and the
14:26
Speaker 2: Electoral Count Reform Act, which was basically a compromise between
14:30
Speaker 2: the parties. You know, in this time of closely divided government,
14:34
Speaker 2: it's hard to get anything through. But among the things,
14:37
Speaker 2: this law clarified that the vice president has only a
14:42
Speaker 2: ceremonial role in the counting of electoral votes, that the
14:46
Speaker 2: vice president can actually refuse to certify the result. It
14:52
Speaker 2: does some other things as well. It sets a firm
14:55
Speaker 2: deadline for states to submit their certified results to Congress.
15:00
Speaker 2: It had previously been a little bit fuzzy. It was
15:03
Speaker 2: sort of a soft deadline. And it also raises a
15:07
Speaker 2: threshold for lawmakers who want to object to the results
15:10
Speaker 2: from some state. And if you recall, in twenty twenty,
15:13
Speaker 2: it took only one member of Congress to object to
15:16
Speaker 2: the results, and now you'd have to have twenty percent
15:20
Speaker 2: in each chamber. So that law is, you know, mostly
15:25
Speaker 2: designed to avoid people trying to overturn the results during
15:29
Speaker 2: the counting of electoral votes, or to eliminate the kind
15:33
Speaker 2: of chaos and controversy that happened four years ago. It
15:38
Speaker 2: may also create along the way some legal issues that
15:41
Speaker 2: are a little hard to foresee now, you know, some
15:43
Speaker 2: things that maybe aren't clear i haven't been tested in
15:45
Speaker 2: the courts. That often happens with new laws. But it
15:49
Speaker 2: might also in the hopes of people who supported it,
15:52
Speaker 2: to sort of reduce the opportunity for controversies.
15:56
Speaker 1: You know, as we were discussing, there are lawsuits in
16:01
Speaker 1: a lot of the swing states, Pennsylvania's ballot rules, Georgia's
16:06
Speaker 1: certification requirements, and these lawsuits are sort of coming up
16:11
Speaker 1: the ladder and after the election. I mean, could they
16:15
Speaker 1: become issues that the Supreme Court will deal with?
16:18
Speaker 2: Yeah, they could. There are cases out there where both
16:24
Speaker 2: sides have sort of tested out their arguments, they've been
16:26
Speaker 2: accepted or rejected by lower courts, and there's at least
16:31
Speaker 2: the possibility that that would give one side or the
16:35
Speaker 2: other sort of a quick avenue to the Supreme Court.
16:37
Speaker 2: So mentioned to start off talking about Bush v. Gore
16:40
Speaker 2: and how that particular case didn't actually get to the
16:44
Speaker 2: Supreme Court until just a few days before the December
16:48
Speaker 2: twelfth deadline. And now that sort of thing could happen again,
16:53
Speaker 2: because states do have these procedures where you can challenge
16:55
Speaker 2: the results if you're loser by a very close margin.
16:58
Speaker 2: But there's also the possibility that, you know, a pre
17:01
Speaker 2: existing case could get to the Supreme Court and affect
17:05
Speaker 2: what happens before a state certifies its results.
17:09
Speaker 1: Every time I talk to you, I think I mentioned
17:11
Speaker 1: that confidence in the Supreme Court is that an all
17:13
Speaker 1: time low, sinking, sinking, sinking, And a new Pew Research
17:18
Speaker 1: Center poll shows that only twenty percent of voters are
17:21
Speaker 1: highly confident the Supreme Court would be politically neutral in
17:25
Speaker 1: any election case. Might that affect their desire to get
17:29
Speaker 1: involved in an election case?
17:32
Speaker 2: I think it almost certainly is affecting their desire. I
17:35
Speaker 2: think it's pretty clear that they would prefer not deciding
17:39
Speaker 2: this case, not doing something, not having another bushby Gore.
17:44
Speaker 2: Whether that's actually enough to make the difference is another question.
17:48
Speaker 2: You know, ultimately, so many things the Supreme Court does
17:51
Speaker 2: or matters of discretion that you know, even Bush v.
17:55
Speaker 2: Gore was a case where the Court didn't actually have
17:59
Speaker 2: to take it. But what we've heard from members of
18:03
Speaker 2: the majority in the aftermath was they felt like it
18:06
Speaker 2: was their rule at this moment of real chaos and
18:09
Speaker 2: confusion and controversy that had gone on for weeks, to
18:12
Speaker 2: provide some certainty. And you know, at this stage it's
18:15
Speaker 2: impossible to say for sure whether this desire not to
18:18
Speaker 2: get involved will be overridden by their sense, which may
18:22
Speaker 2: or may not be the same as your sense or
18:23
Speaker 2: my sense, but their sense that they are needed to
18:26
Speaker 2: come in and create a final decision that you know,
18:30
Speaker 2: they would hope would be accepted by the country.
18:33
Speaker 1: Do you think that we'll hear this week about whether
18:35
Speaker 1: they're going to take the Virginia and Pennsylvania cases.
18:39
Speaker 2: I think we will almost certainly hear something about those cases.
18:44
Speaker 2: I would not use the word take, because these are
18:46
Speaker 2: probably just going to be orders that say, you know,
18:50
Speaker 2: either Virginia can purge these names in the voting list,
18:52
Speaker 2: or they can't, you know, and it may be you know,
18:56
Speaker 2: in order that says these folks can or cannot cast
18:58
Speaker 2: those provisional ballots, or as I said, requiring officials to
19:02
Speaker 2: segregate the battles so they can decide it later. I
19:05
Speaker 2: think we will get something from them, if it is
19:08
Speaker 2: not likely to be because nobody is asking for it
19:10
Speaker 2: at this point. One of these cases where they schedule
19:13
Speaker 2: arguments and you know, actually issue a big ruling on
19:15
Speaker 2: the merits no time for that.
19:18
Speaker 1: Election days coming. Thanks so much, Greg, my pleasure. We
19:23
Speaker 1: will see how this all plays out shortly. That's Bloomberg
19:27
Speaker 1: Supreme Court reporter Greg Store. Coming up next on the
19:30
Speaker 1: Bloomberg Law Show, We're going to be talking about the
19:34
Speaker 1: Court's shift to analyzing cases based on history and tradition.
19:40
Speaker 1: It's an approach that even has judges going to libraries
19:43
Speaker 1: to check on historical data. You might say it's a
19:47
Speaker 1: new alway of looking at constitutional questions. The Supreme Court
19:52
Speaker 1: super conservative majority is now relying more and more on
19:57
Speaker 1: history and tradition to analyze issue, whether it's abortion rights,
20:01
Speaker 1: gun rights, or free speech rights and it has judges
20:05
Speaker 1: and lawyers alike saying it's making their jobs more difficult.
20:10
Speaker 1: Joining me is Lydio Wheeler Bloomberg Laws, Supreme Court reporter
20:13
Speaker 1: who's written about this. Lydia explain the history and tradition,
20:19
Speaker 1: test analysis, focus, whatever you might call it of the
20:23
Speaker 1: conservative Supreme Court justices.
20:26
Speaker 3: So, the Court's conservatives six to three majority has been
20:29
Speaker 3: turning to history and tradition to settle basically constitutional questions.
20:35
Speaker 3: So we saw them cite centuries old treaties. When the
20:39
Speaker 3: Court overturned abortion rights, they pointed to English history dating
20:44
Speaker 3: back to the late sixteen hundreds when they allowed more
20:47
Speaker 3: guns to be carried in public. And they looked at
20:51
Speaker 3: state practices from the founding era of our country when
20:55
Speaker 3: they rejected a free speech challenge just last term to
20:58
Speaker 3: trademark restriction. So you know, they're constantly taking what they
21:03
Speaker 3: call an originalist theory to decide these cases.
21:07
Speaker 1: Can you pinpoint when this started? Because the late Justice
21:11
Speaker 1: antonin Scalia, conservative icon promoted this originalist theory. But I
21:16
Speaker 1: remember one interview where he didn't even think it was
21:19
Speaker 1: going to take off the way it has. He said
21:21
Speaker 1: something like, well, this will be something law students will
21:23
Speaker 1: be talking about when did it become so important that
21:27
Speaker 1: even the liberal justices are having to use it.
21:30
Speaker 3: So we really saw it in a gun rights case
21:33
Speaker 3: known as the United States versus Brashemi. That was a
21:37
Speaker 3: decision last term, you know, considering the legality of a
21:41
Speaker 3: law that banned firearms for those subjects to a domestic
21:45
Speaker 3: violence restraining order. But even prior to Bohemi, we really
21:48
Speaker 3: saw it in the Bruin case that was another gun
21:51
Speaker 3: rights law, you know, that was asking about where you
21:55
Speaker 3: can carry guns in public or not, and so the
21:58
Speaker 3: court really relied on history and tradition it's to determine
22:02
Speaker 3: these constitutional questions. But it's not just in gun rights
22:06
Speaker 3: cases that we're seeing it now. It's really carrying over
22:08
Speaker 3: into all sorts of other disputes mostly related to constitutional questions.
22:14
Speaker 1: And do the justices even agree on exactly what it is?
22:18
Speaker 1: Because in Raheemi, which you mentioned, there were five concurrences
22:22
Speaker 1: and it was an eight to one decision and each
22:25
Speaker 1: justice seemed to want to explain their idea of what
22:28
Speaker 1: it is.
22:29
Speaker 3: Yeah, we are seeing a lot of separate writings in cases.
22:34
Speaker 3: You know, we saw specifically in Rahimi where each Justice
22:38
Speaker 3: is kind of trying to figure it out and explain
22:40
Speaker 3: their own approach to this. So there is a lot
22:42
Speaker 3: of disagreement on the court, and we're hearing from lower
22:45
Speaker 3: court judges that this is causing confusion for them and
22:48
Speaker 3: that this history and tradition kind of analysis has actually
22:53
Speaker 3: made their job a lot harder.
22:54
Speaker 1: And you write that some lower court judges are going
22:57
Speaker 1: to the library to do their own historical research.
23:00
Speaker 2: Yeah.
23:01
Speaker 3: Absolutely so. We heard from Judge Pamela Harris, she is
23:04
Speaker 3: an Obama appointee on the Virginia based Fourth Circuit Court
23:07
Speaker 3: of Appeals, and she said that, yes, you know, judges
23:10
Speaker 3: have to go to the library now to do their
23:12
Speaker 3: own historical research. And you know, I heard her speak
23:16
Speaker 3: at a law conference in September and she was really
23:19
Speaker 3: lamenting the fact that judges now have to go back
23:22
Speaker 3: in time, she said, and become historians. And short of that,
23:26
Speaker 3: she said, you know that she's finding it very very
23:29
Speaker 3: challenging to do her job and that this has actually
23:32
Speaker 3: raised some practical questions about how she should approach her decision.
23:37
Speaker 1: It must be really time consuming.
23:41
Speaker 3: Yeah, absolutely, so that's something even conservative judges are saying.
23:45
Speaker 3: You know, I heard from David Strass, he's a Trump
23:48
Speaker 3: appointee on the Missouri based Ace Circuit Court. You know,
23:51
Speaker 3: he said he's not, you know, more challenging to do
23:54
Speaker 3: this kind of work, but he is acknowledging that it
23:56
Speaker 3: takes longer, you know, and that to go and do
23:58
Speaker 3: this kind of research, it's taking him longer to write
24:01
Speaker 3: his opinions. And you know, Pamela Harris who was on
24:04
Speaker 3: this panel with Judge Struck, she said that, you know,
24:08
Speaker 3: it's raising questions for her about if she wants to
24:11
Speaker 3: join a colleague's opinion, you know, because it's a three
24:14
Speaker 3: judge panel that is hearing this appeal. And if her
24:17
Speaker 3: colleague who's writing the majority, did their own historical research,
24:21
Speaker 3: she was asking, does that mean she has to kind
24:23
Speaker 3: of go back and also do her own historical research
24:26
Speaker 3: to back check them. So those are the kind of
24:29
Speaker 3: practical questions. You know, even judges are saying, what do
24:32
Speaker 3: we do here?
24:33
Speaker 1: Is anybody saying, yes, this is terrific. Let's go back
24:37
Speaker 1: to the sixteen and seventeen hundreds when society and technology
24:42
Speaker 1: and everything else was so different. Let's go back to
24:44
Speaker 1: find our opinion today. Does anyone really love this test?
24:48
Speaker 3: It seems like some members of the court do like it,
24:51
Speaker 3: and you know, they view the Constitution as it should
24:55
Speaker 3: be interpreted as the way it was written when it
24:58
Speaker 3: was adopted in the seven eventeen hundreds, and so we
25:01
Speaker 3: are seeing time and time again they're returning to this,
25:04
Speaker 3: and we are seeing that this is something that law
25:07
Speaker 3: schools kind of are behind the curve on and are
25:10
Speaker 3: just now starting to think, Okay, maybe we need to
25:13
Speaker 3: start offering some classes and training, you know, our students
25:17
Speaker 3: on kind of this originalist theory.
25:20
Speaker 1: What does this mean as far as the kinds of
25:23
Speaker 1: clerks that judges are looking for nowadays.
25:26
Speaker 3: Yeah, So it really seems like that any clerk who
25:28
Speaker 3: has this experience in this historical research kind of has
25:32
Speaker 3: a leg up when they're applying for clerkships. So I
25:35
Speaker 3: chatted with Esha Nan. She's at Stanford Supreme Court Litigation
25:39
Speaker 3: Clinic and she's also on the law school's Clerkship committee,
25:42
Speaker 3: and she said that she's seen students kind of get
25:45
Speaker 3: an advantage if they have this experience or a background
25:48
Speaker 3: in historical research. She said that judges are definitely interested
25:52
Speaker 3: and perk up when they hear that that experience is,
25:55
Speaker 3: you know, on that student's resume when they're hiring for
25:58
Speaker 3: future clerks, because it is taking them a lot of
26:01
Speaker 3: time to do their own historical research. So you know,
26:04
Speaker 3: there are kind of are looking potentially at clerks who
26:07
Speaker 3: already have experience doing this to make the process maybe
26:10
Speaker 3: go a little smoother.
26:11
Speaker 1: Are any of these judges concerned that this is just
26:15
Speaker 1: going to become overwhelming? I mean, they're supposed to be
26:18
Speaker 1: interpreting the law and not interpreting history, according to what
26:21
Speaker 1: we were taught in law school.
26:24
Speaker 3: So that was you know, Judge Harris on the Fourth Circuit,
26:26
Speaker 3: you know, she had a lot of concerns about this
26:29
Speaker 3: and about if she's doing it right. And because that's
26:31
Speaker 3: one thing that even you know, attorneys that argue before
26:34
Speaker 3: the court regularly say is difficult. So I chatted with
26:37
Speaker 3: one lawyer who said that this analysis is tough because
26:42
Speaker 3: there can be so much material to come through. You know.
26:44
Speaker 3: He said that you sometimes might have to go back,
26:47
Speaker 3: you know and look at state and federal laws that
26:49
Speaker 3: are hundreds of years old and go back in time
26:53
Speaker 3: that far. So, yeah, it is something that judges are
26:55
Speaker 3: saying are difficult. You know, my colleagues, Suzanne Moniac reported
27:00
Speaker 3: that some law schools are actually getting pressured to teach
27:03
Speaker 3: this originalist theory. Like I mentioned before, it's the theory
27:07
Speaker 3: that the Constitution should be interpreted as it was understood
27:11
Speaker 3: at the time that it was adopted in seventeen eighty eight.
27:14
Speaker 3: And one conservative appeals clerk judge actually a mults Apar
27:18
Speaker 3: the Ohio based sic circuit. He urged donors in a
27:21
Speaker 3: recent speech at a Heritage event. You know, he said
27:24
Speaker 3: to donors that you should withhold your support for law
27:26
Speaker 3: schools until they actually start hiring ideologically diverse teachers and
27:31
Speaker 3: start teaching this originalist theory, you know, because he said
27:34
Speaker 3: that judges need clerks and attorneys who were equipped with
27:39
Speaker 3: this understanding of this theory of law. And he said
27:42
Speaker 3: that judges are just overworked and lack the time to
27:46
Speaker 3: kind of pour over these historical texts.
27:48
Speaker 1: Well, I remember that Justice Scalia and Justice Stephen Bryer
27:53
Speaker 1: used to appear together to talk about the Constitution, and
27:57
Speaker 1: it was Justice Scalia advanced in the originalist theory and
28:01
Speaker 1: Justice Bryer advancing the living constitution theory. You don't hear
28:06
Speaker 1: much talk about the living Constitution anymore on the Court.
28:09
Speaker 1: I think even Justice Kagan said at one point, we're
28:13
Speaker 1: all originalists.
28:14
Speaker 3: Now, yeah, I think that is a byproduct of the
28:17
Speaker 3: fact that we have a six three conservative majority on
28:20
Speaker 3: the Court, and so, you know, the liberal wing is
28:24
Speaker 3: at a disadvantage here. If they want to or if
28:27
Speaker 3: they have that view of the Constitution, you know, they
28:30
Speaker 3: I think, to seed ground or maybe fine common ground.
28:34
Speaker 3: They have to kind of look at this historical analysis
28:37
Speaker 3: themselves and try to find the path forward, you know,
28:41
Speaker 3: working within that framework.
28:43
Speaker 1: I was looking at the Supreme Court calendar for next month,
28:47
Speaker 1: and I have to say I wasn't very excited with
28:50
Speaker 1: the cases there, besides election issues that may be coming up,
28:54
Speaker 1: which I spoke to Greg Store about. I mean, how
28:57
Speaker 1: would you characterize this term from what we've seen so far.
29:02
Speaker 3: Yeah, So attorneys we talked to, you know, at the
29:05
Speaker 3: start of the Supreme Court term really said that this
29:08
Speaker 3: is going to be lacking in the number of blockbusters
29:11
Speaker 3: that the Court is hearing right off the bat, and
29:14
Speaker 3: actually a lot of these cases for the first couple
29:17
Speaker 3: of months are going to be what he described as
29:19
Speaker 3: kind of the beaten potatoes type cases that we typically see.
29:22
Speaker 3: You know, they're digging into complicated statutory questions over laws,
29:26
Speaker 3: and so a little bit more drier of the subject areas.
29:31
Speaker 3: But you know, the Court is still taking action on
29:35
Speaker 3: its emergency docket. Just yesterday we saw that the Supreme
29:39
Speaker 3: Court agreed to stop of ruling from the Fifth Circuit
29:43
Speaker 3: from taking effect that found the enforcement provisions of a
29:47
Speaker 3: federal anti doping horse racing law unconstitutional. So the Court,
29:52
Speaker 3: you know, stayed that decision from the Fifth Circuit, which
29:55
Speaker 3: really came down against a federal law known as the
29:59
Speaker 3: Horse Racing int Gerty and Safety Act. And the Justices
30:02
Speaker 3: put that decision on hold while they consider whether to
30:06
Speaker 3: hear the dispute over you in this case. And you know,
30:10
Speaker 3: that's a law that actually empowers a private organization known
30:13
Speaker 3: as the horse Racing Integrity and Safety Authority to set
30:17
Speaker 3: in enforced rules for the industry. And the Fifth Circuit said, well,
30:21
Speaker 3: those enforcement provisions violates what's called the private non delegation doctrine,
30:26
Speaker 3: which is a legal principle that says that a private
30:29
Speaker 3: entity may wield government power only if it functions subordinately
30:34
Speaker 3: to the agency with authority in surveillance over it. So
30:39
Speaker 3: they said that this is a law, these enforcement provisions
30:43
Speaker 3: are unconstitutional, and the Supreme Court has already stepped in
30:48
Speaker 3: to say, oh wait, we're going to put that on hold. Well,
30:50
Speaker 3: we consider whether to hear this case or not.
30:52
Speaker 1: The Fifth Circuit being the most conservative circuit in the
30:56
Speaker 1: country that often sort of pushes the envelope the law
31:01
Speaker 1: with novel theories, and the Supreme Court last term in particular,
31:06
Speaker 1: had to use the term put them in place by
31:10
Speaker 1: reversing a lot of their decisions. Are you keeping track
31:13
Speaker 1: of how many Fifth Circuit cases the Supreme Court is
31:16
Speaker 1: hearing this term. I haven't counted them up yet.
31:19
Speaker 3: My colleague has a spreadsheet and she was just looking
31:23
Speaker 3: at them the other day, and it is it is
31:25
Speaker 3: quite a few, actually, But we haven't done the comparison
31:28
Speaker 3: yet to past terms, but it looks like there are
31:32
Speaker 3: a lot of the certain cases already popping up, so
31:34
Speaker 3: that's going to be something to watch for sure.
31:36
Speaker 1: Okay, thanks so much, Lydia. That's Bloomberg Law Supreme Court
31:40
Speaker 1: reporter Lydia Wheeler, and that's it for this edition of
31:43
Speaker 1: the Bloomberg Law Podcast. Remember you can always get the
31:46
Speaker 1: latest legal news by subscribing and listening to the show
31:49
Speaker 1: on Apple Podcasts. Spotify and at Bloomberg dot com, slash
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Speaker 1: podcast slash Law. I'm June Grosso and this is Bloomberg