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School Shooter's Father Charged & SCOTUS Recusals · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:11
Speaker 2: From where I'm saying, I could see him like through
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Speaker 2: the window, and then he just kind of turned to
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Speaker 2: my right and then he fired about ten to fifteen shots. Well,
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Speaker 2: when we heard the shots, we kind of just like
0:21
Speaker 2: dropped to the floor and like flung ourselves like into
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Speaker 2: like a corner.
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Speaker 1: Sixteen year old Lyla Sairas had been sitting next to
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Speaker 1: Colt Gray in math class just before the shooting that
0:32
Speaker 1: killed two teachers and two students and injured nine others.
0:37
Speaker 1: The shooting at Georgia's Appalachi High School is the twenty
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Speaker 1: third school shooting this year and the deadliest.
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Speaker 3: In essence, You were charged with four counts of felony murder,
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Speaker 3: as outlined in the state warrants that have been issued
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Speaker 3: against you.
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Speaker 1: Fourteen year old Colt Gray has been charged with four
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Speaker 1: counts of murder. His father is also being prosecuted for
1:03
Speaker 1: the shootings. Colin Gray has been charged with four counts
1:07
Speaker 1: of involuntary manslaughter, two counts of felony murder, and eight
1:12
Speaker 1: counts of cruelty to children. Barrow County District Attorney Brad
1:17
Speaker 1: Smith says there's no broader meaning in bringing charges against
1:21
Speaker 1: the father.
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Speaker 2: I'm not trying to send a message.
1:24
Speaker 3: I'm just trying.
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Speaker 4: To use the tools.
1:27
Speaker 1: Of arsenal to prosecute people for the crown. The commit
1:29
Speaker 1: joining me is Echo Yanka, a professor at the University
1:32
Speaker 1: of Michigan Law School. They charged the father right away.
1:37
Speaker 1: Do you think the speed is because there was sort
1:40
Speaker 1: of a precedent already set in the case against the
1:43
Speaker 1: parents in the Michigan school shooting.
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Speaker 4: You're right to notice the speed at which they charged
1:48
Speaker 4: the father. It is one of the things that shows
1:51
Speaker 4: that we're entering into a new legal world. As you
1:54
Speaker 4: point out, the Ethan Crumley case in Michigan where the
1:57
Speaker 4: parents were convicted, was considered setting and hath breaking. But
2:02
Speaker 4: it doesn't take long for a case that was seen
2:04
Speaker 4: as utterly novel to be in a prosecutor's back pocket
2:07
Speaker 4: and result in charges in just hours in the next
2:11
Speaker 4: set of egregious, horrible cases. But it shows you that
2:15
Speaker 4: what was, you know, completely novel becomes a ready made
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Speaker 4: tool for the next case. I don't know if they
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Speaker 4: charge him so quickly because of some facts they found
2:26
Speaker 4: during the case. Something he said during the interview. And
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Speaker 4: of course, the other feature of the Crumbley case to
2:32
Speaker 4: keep in mind is that the parents of Ethan Crumley
2:35
Speaker 4: were on the run in Detroit for quite some time
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Speaker 4: before the police found them, So perhaps prosecutors had the
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Speaker 4: flight risk in mind. But you're absolutely right. We're in
2:42
Speaker 4: a little bit of a new world when this is
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Speaker 4: something prosecutors think of as a quite ready made tool.
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Speaker 1: Prosecutors charged the father with four counts of involuntary manslaughter,
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Speaker 1: two counts of felony murder, and eight counts of cruelty
2:58
Speaker 1: to children. The prosecutor said the felony murder charges were
3:03
Speaker 1: connected to the child cruelty charges, But don't murder charges
3:07
Speaker 1: against the father seem like a stretch.
3:10
Speaker 4: I do think you're right that these are charges that
3:13
Speaker 4: see yet another step forward in holding parents accountable, to
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Speaker 4: hold that they're directly responsible. Involuntary manslaughter is typically related
3:22
Speaker 4: to somebody's recklessness or negligence that costs these deaths, but
3:27
Speaker 4: second degree murder is a stronger claim that in some
3:31
Speaker 4: sense you killed somebody even without preditation. As you know,
3:36
Speaker 4: George's murder laws are somewhat idiosyncratic, and so those second
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Speaker 4: degree murder charges look to be attached to the idea
3:45
Speaker 4: that his son killed two children, and thus the cruelty
3:47
Speaker 4: charged to children is a second degree murder. But as
3:50
Speaker 4: a general position, it stands for prosecutors being even more
3:54
Speaker 4: aggressive in saying that this father didn't just recklessly lead
3:58
Speaker 4: to this death, but that his actions in some serious
4:01
Speaker 4: way caused these deaths.
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Speaker 1: For involuntary manslaughter, what has to be proven.
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Speaker 4: So typically involuntary manslaughter is attached to either recklessness or
4:11
Speaker 4: more commonly, negligent. So recklessness is the idea that you
4:16
Speaker 4: knew there was a risk of something terrible happening, a
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Speaker 4: substantial and unjustified risk, and you ignored it, and that
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Speaker 4: often grounds manslaughter in some states that can be an
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Speaker 4: involuntary manslaughter. Negligence is the idea that you should have
4:29
Speaker 4: known that there was something that substantial or unjustified risk,
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Speaker 4: and typically that's what grounds involuntary manslaughter.
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Speaker 1: The May of twenty twenty three, the father and son
4:43
Speaker 1: were interviewed in connection with threats to carry out a
4:46
Speaker 1: school shooting, but authorities didn't arrest the teenager then because
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Speaker 1: they couldn't connect him to this online account, and at
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Speaker 1: some point after that interaction, Gray bought his son an
5:00
Speaker 1: AR fifteen style rifle. Do you think that that's going
5:04
Speaker 1: to be the main thrust of the prosecution, You know,
5:08
Speaker 1: you were warned in this conversation.
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Speaker 4: Yeah, it sounds like, you know, much like the cases
5:14
Speaker 4: we've seen that came before. It's these sort of horrible
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Speaker 4: and gut wrenching facts, the fact that give you a
5:20
Speaker 4: feeling as though a parent not only ignored a child
5:24
Speaker 4: who was crying out from mental health help, not only
5:27
Speaker 4: ignored a child who is fascinated with violence and school
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Speaker 4: shootings in particular, but instead of steering this child away
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Speaker 4: from these kinds of things or securing your weapons, you
5:37
Speaker 4: have parents in both cases, but in particular in this
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Speaker 4: great case, who not only metaphorical but quite literally put
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Speaker 4: the gun in the child's hands, goes and buys them
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Speaker 4: the weapon and arms them. And it's those kind of
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Speaker 4: gregious facts that lead prosecutors to eventually seek direct responsibility. Now,
5:56
Speaker 4: I'll say, in many parts of the country, one of
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Speaker 4: the reasons we really care about trying people in front
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Speaker 4: of jurys is that different communities will have very different
6:05
Speaker 4: relationships to these moments. So there are just lots of
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Speaker 4: communities where a father buying a gun and taking their
6:12
Speaker 4: son hunting seems like a perfectly ordinary part of the
6:15
Speaker 4: communal experience, and in other communities this is close to unthinkable.
6:20
Speaker 4: And so I don't think the facts are without anything
6:23
Speaker 4: for a defense lawyer to point out. But when you
6:26
Speaker 4: have a child who's so troubled, who's so fascinated with violence,
6:30
Speaker 4: it's not surprising that we all are outraged when a father,
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Speaker 4: instead of making sure guns are away, arms the child
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Speaker 4: with essentially a rifle that's made for war.
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Speaker 1: And during that interaction with authorities, the father, Colin Gray,
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Speaker 1: told the investigators that he was teaching his son about
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Speaker 1: firearms and safety and how to hunt, and that if
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Speaker 1: he found out that his son was the one involved
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Speaker 1: in that online threat, he would basely safeguard the guns.
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Speaker 1: Is that something the defense might point to, especially in
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Speaker 1: a state like Georgia where there's a lot of hunting.
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Speaker 4: No, absolutely, Look, I mean I teach cases where courts
7:14
Speaker 4: come to very different decisions because they're very different communal
7:17
Speaker 4: norms on what counts as negligence with a gun. You know,
7:22
Speaker 4: one of the cases is a Georgia case where the
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Speaker 4: judge says Georgia, we have a long and proud history
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Speaker 4: of hunting. You know, I grew up in a community
7:30
Speaker 4: where there are very different feelings about guns. But you know,
7:33
Speaker 4: with some families for whom one of the proud moments
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Speaker 4: was when the children went on the first hunting experience
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Speaker 4: with dad. So different communities are going to feel differently.
7:44
Speaker 4: You know, the dad tweeted out something like it was
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Speaker 4: one of the happiest moments or proudest moments when his
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Speaker 4: son finally shot a deer. That being said, when you
7:54
Speaker 4: know that your son is this troubled or this fascinated
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Speaker 4: with violence. You know, every parent knows when a child says, well,
8:01
Speaker 4: I didn't do it. It's one thing for prosecutors to
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Speaker 4: not be in a position to say I can prove
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Speaker 4: something beyond a reasonable doubt. It's quite another thing for
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Speaker 4: a parent to just take at face value a child
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Speaker 4: saying that it wasn't me when we have reason to worry.
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Speaker 4: It can lead to this kind of utterly tragic result.
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Speaker 1: In the Crumbly case, there was a lot of evidence
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Speaker 1: that the parents ignored their son's deteriorating mental health. In
8:30
Speaker 1: the case of Colt Gray, there also seems to have
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Speaker 1: been contact between the family and the school about his
8:37
Speaker 1: mental health, but the facts are very unclear at this point.
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Speaker 1: Doesn't it get tricky when a case involves a parent's
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Speaker 1: knowledge of their child's mental health struggles and how they
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Speaker 1: address that.
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Speaker 4: Yeah, I mean, look, one of the things that's hard
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Speaker 4: about these cases is though this particular case is so
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Speaker 4: devastating in its result, we all feel it's obvious what
9:00
Speaker 4: should have happened. It's also true that, you know, lots
9:03
Speaker 4: of kids go through lots of troubled periods, and many
9:07
Speaker 4: parents try their best, and I struggle with how to
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Speaker 4: answer this myself. Look, even among trained psychiatrists, they will
9:15
Speaker 4: tell you that it's very hard to predict when a
9:18
Speaker 4: patient is actually going to resort to violence, when there's
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Speaker 4: a gap between fixation, fascination, mental health issues, and actual action.
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Speaker 4: And so I think there are a lot of parents
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Speaker 4: out there who are going to worry that they'll be
9:33
Speaker 4: held responsible for what their troubled child does. That being said,
9:37
Speaker 4: you know, part of what drives these cases is that
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Speaker 4: there are particularly egregious facts. So, for example, when this
9:45
Speaker 4: mother took him in seeking mental health help, apparently, and
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Speaker 4: we're all finding out the facts but her notes said
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Speaker 4: something like he should have been in therapy for months now.
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Speaker 4: He deeply needs help. And so it's those facts on
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Speaker 4: the ground that parents themselves did see or could have
10:02
Speaker 4: seen this coming. Indeed, the latest reporting shows that when
10:06
Speaker 4: he texted her, she immediately called the school if she
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Speaker 4: was afraid that he was going to resort to violence.
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Speaker 4: So it is absolutely true that parents worry that they
10:14
Speaker 4: can't always see the future, but in some cases when
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Speaker 4: they did, it's going to be much harder to deny
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Speaker 4: the prosecution's indictment that you could have prevented this.
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Speaker 1: Coming up next on the Bloomberg Law Show, I'll continue
10:28
Speaker 1: this conversation with University of Michigan Law School professor Eko Yanka.
10:34
Speaker 1: We'll talk about new information at the mother of fourteen
10:37
Speaker 1: year old Colt Gray called the Georgia High School about
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Speaker 1: thirty minutes before the shooting to warn the staff of
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Speaker 1: an extreme emergency involving her son. I'm June Grosso and
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Speaker 1: you're listening to Bloomberg for the second time a parent
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Speaker 1: is being prosecuted for a school shooting by his child.
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Speaker 1: The shooting at Georgia's Appalachi High School last week is
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Speaker 1: the tw twenty third school shooting this year and the deadliest.
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Speaker 1: Two students and two teachers were killed and nine others
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Speaker 1: were injured. Fourteen year old Colt Gray has been charged
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Speaker 1: with four counts of felony murder, and his father, Colin Gray,
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Speaker 1: has been charged with four counts of involuntary manslaughter, two
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Speaker 1: counts of second degree felony murder, and eight counts of
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Speaker 1: cruelty to children. I've been talking to Echo Yanka, a
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Speaker 1: professor at the University of Michigan Law School. You followed
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Speaker 1: the Crumbly case in Michigan where both parents were found
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Speaker 1: guilty of four counts of involuntary manslaughter. Did the parents
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Speaker 1: have more warning signs about their son in that case?
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Speaker 4: That's one of the things we're all waiting to find out.
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Speaker 4: And you know, you mentioned earlier that this father was
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Speaker 4: arrested quite quickly, So I think one of the things
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Speaker 4: that we're going to see developed at trial is not
11:55
Speaker 4: only what was the reported incident beforehand where he posted
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Speaker 4: about school shootings, how much was he fascinated with school shooting,
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Speaker 4: how much the parents have reason to know about his
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Speaker 4: fixation with violence, and frankly, what kinds of things did
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Speaker 4: they discover in their investigation or in their interview with
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Speaker 4: him that would lead to such quick charges. And so
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Speaker 4: you know, alongside the rest of the country, I'll be
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Speaker 4: waiting to find out exactly who knew, what went, what
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Speaker 4: did he say?
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Speaker 1: And now you mentioned the mother called the school to
12:26
Speaker 1: warn them about her son. Apparently the conversation was ten
12:29
Speaker 1: minutes in, about a half hour before the shooting. I'm
12:32
Speaker 1: wondering if a possible defense will be well, the school
12:37
Speaker 1: didn't act quickly enough.
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Speaker 4: Yeah, I don't think that'll be much of a defense
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Speaker 4: for him at his criminal trial, especially because he's not
12:44
Speaker 4: the new acted. From what the reporting is now, it
12:48
Speaker 4: seems like a horrible set of missed opportunities. A school
12:51
Speaker 4: counselor went to see if he was there, tacon him
12:55
Speaker 4: for another child with a similar name, and took a
12:58
Speaker 4: backpack of the wrong child. So it's all these sort
13:01
Speaker 4: of horrible miss moments after miss moments that lead to
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Speaker 4: the death of four people. I do think the real
13:08
Speaker 4: question will be whether or not those moments play into
13:11
Speaker 4: further civil liability for the school. As you know, in
13:15
Speaker 4: the Oxford shooting in Michigan, the Oxford school system was
13:19
Speaker 4: eventually not found liable for any negligence on their part criminally,
13:25
Speaker 4: but that doesn't settle the question whether or not those
13:28
Speaker 4: individual parents and injured people will think that the school
13:31
Speaker 4: missed its own duties to protect them.
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Speaker 1: What I thought that the prosecutor declined to say if
13:38
Speaker 1: the father had any gunlocks or other mechanisms to secure
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Speaker 1: the firearms inside the home. But Georgia has no law
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Speaker 1: requiring safe storage.
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Speaker 4: Look, I would say one of the things about these
13:50
Speaker 4: cases is that all of us who are either criminal
13:54
Speaker 4: law practitioners or teachers, are fascinated with how the law
13:59
Speaker 4: is going respond, how criminal law is going to respond
14:02
Speaker 4: to this question of whether or not you're liable for
14:04
Speaker 4: somebody that else's actions. But for those of us when
14:07
Speaker 4: we're thinking of ourselves as citizens and parents, the question
14:11
Speaker 4: should be much less abstract. The question is not whether
14:14
Speaker 4: or not this particular father is liable. I care about
14:18
Speaker 4: that insofar as I care about the way criminal law works.
14:21
Speaker 4: But as a parent, if we care about protecting our children,
14:25
Speaker 4: it's clear to me that what needs to happen is
14:28
Speaker 4: the way we treat our society that's saturated in guns.
14:32
Speaker 4: What do we think about gun regulation, what do we
14:35
Speaker 4: think about red flag laws and what do we think
14:36
Speaker 4: about safe storage laws? In Michigan, it was only after
14:40
Speaker 4: the Crumbley shooting that we passed the first set of
14:42
Speaker 4: gun regulations, including safe storage laws, in or decades. So
14:49
Speaker 4: his heartbreaking is this particular cases, and whatever one thinks
14:52
Speaker 4: about what should happen to this father, It seems to
14:55
Speaker 4: me a kind of hopeless mission to think that we're
14:58
Speaker 4: going to solve this never ending social problem with school
15:01
Speaker 4: shootings by prosecuting one parent at a time.
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Speaker 1: Critics say it's a misguided effort to make parents escapegoats
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Speaker 1: while lawmakers fail to pass legislation to reduce gun violence.
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Speaker 1: The lawyer representing Jennifer Crumbly on her appeal said it's
15:20
Speaker 1: shifting blame onto parents in the absence of states passing legislation.
15:27
Speaker 4: I think that's right. I mean, look, I think in
15:29
Speaker 4: some sense these are not the exact same question. I
15:33
Speaker 4: am cautious about the way in which we treat every
15:36
Speaker 4: social problem as though as a criminal law problem. But
15:39
Speaker 4: I don't pretend to have an easy answer about whether
15:41
Speaker 4: or not parents who are so grossly negligent or so
15:45
Speaker 4: close should be held liable. You know, it goes against
15:48
Speaker 4: a long standing criminal law principle that you're not responsible,
15:52
Speaker 4: barring of very few exceptions for accomplished liability or felony murder.
15:57
Speaker 4: That the principle that I taught just last week week
16:00
Speaker 4: to my criminal law students in their first week is
16:02
Speaker 4: that you're not responsible for the actions of others. But yes,
16:06
Speaker 4: extraordinary cases are going to push that intuition. The real
16:10
Speaker 4: point is exactly what you said. Setting that aside whether
16:14
Speaker 4: or not you think this parent should be culpable, it's
16:17
Speaker 4: obvious to me this is not how we're going to
16:19
Speaker 4: solve the problem. And if legislators are going to think
16:22
Speaker 4: that we have our anger seated by essentially, you know,
16:27
Speaker 4: blaming one parent at a time, or bringing the hammer
16:30
Speaker 4: down on one parent at time, locking up a parent
16:33
Speaker 4: here a parent there, while forever telling us that we'll
16:36
Speaker 4: think about gun regulation in some other time, then we're
16:40
Speaker 4: going to keep visiting these tragedies.
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Speaker 1: Many people thought that the Michigan case would be an
16:46
Speaker 1: example and would make parents more aware, but apparently not.
16:52
Speaker 4: I mean, the criminal law will never solve all our problems.
16:54
Speaker 4: And again I tend to think we overly use the
16:58
Speaker 4: criminal law, but it's not that it has no role.
17:01
Speaker 4: Criminal law can have a sanctioning effect, it can have
17:04
Speaker 4: some de terrems effect. Maybe somewhere there are some parents
17:07
Speaker 4: who are more careful than they were beforehand. But if
17:10
Speaker 4: we want to solve the underlying problem, we should do
17:12
Speaker 4: the best we can with our regulatory law. If we
17:15
Speaker 4: want people to lock up their guns, what we should
17:17
Speaker 4: do is simply require them to lock up their guns.
17:20
Speaker 4: Even if that's not a perfect solution, it truly beats
17:23
Speaker 4: trying to prosecute one parent at a time.
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Speaker 1: Now, I want to churn to the sun for a moment.
17:29
Speaker 1: Because he's fourteen, he's being charged as an adult. I
17:35
Speaker 1: often wonder what's the point of the juvenile justice system,
17:38
Speaker 1: and teenagers are almost always charged as adults when there's
17:43
Speaker 1: a murder or a similar really serious crime.
17:48
Speaker 4: Yeah, you're absolutely right. We have long decided that we
17:51
Speaker 4: don't truly believe in the juvenile part of our juvenile
17:54
Speaker 4: justice system. That is to say, our essential nationalide stand
17:59
Speaker 4: is that you'll be trying is a juvenal just so
18:01
Speaker 4: long as the crime isn't important enough that we want
18:03
Speaker 4: to try you as an adult, which is a weird
18:06
Speaker 4: way to relate to the juvenile justice system. If the
18:08
Speaker 4: point is when you're young there is a certain way
18:11
Speaker 4: in which you're not fully responsible, then that's true for
18:15
Speaker 4: serious crimes as well. But overall, it is a symptom
18:18
Speaker 4: of that which we've been discussing. It's a symptom of
18:21
Speaker 4: us constantly aiming our criminal law at every social problem.
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Speaker 1: And being charged as an adult rather than a juvenile.
18:30
Speaker 1: Is a game changer, isn't it. It changes everything from
18:33
Speaker 1: the process to the prison time.
18:36
Speaker 4: It's just a whole different ballgame, right. It means potential
18:40
Speaker 4: sentence after sentence of sentence. In this case, as the
18:42
Speaker 4: judge reminded him, he's not eligible because he's a juvenile
18:46
Speaker 4: for the death penalty, but almost everything else is on
18:49
Speaker 4: the table, almost everything else. Look, I mean, what he
18:52
Speaker 4: did was just devastating. But you know, when I see
18:55
Speaker 4: fourteen year old playing, I just think there's so many
18:58
Speaker 4: things they do that are so obviously irrational. You know,
19:02
Speaker 4: there's a real question do we really think there are
19:04
Speaker 4: children and thus not fully responsible, or do we just
19:06
Speaker 4: mean something like songs we're not sufficiently angry, we'll pretend
19:10
Speaker 4: you're a kid. We throw it out of the window
19:12
Speaker 4: when it's angry, making enough.
19:14
Speaker 1: Yeah, the prosecutors here decided right away that they were
19:17
Speaker 1: going to try him as an adult, perhaps fearing the
19:20
Speaker 1: backlash if he's convicted and not sentenced to a long
19:25
Speaker 1: time in prison. The prosecutor also said that he wasn't
19:28
Speaker 1: trying to send out a message by charging the father.
19:33
Speaker 1: I would hope that prosecutors would use every tool in
19:35
Speaker 1: their arsenal to hold people accountable for crimes that they commit.
19:39
Speaker 1: Is that believable that he's not trying to send out
19:41
Speaker 1: a message.
19:42
Speaker 4: The one way in which I'm sympathetic is prosecutors are
19:45
Speaker 4: people too, and they live in these communities, and they
19:48
Speaker 4: are heartbroken and devastated when these things happen as well,
19:52
Speaker 4: And so I believe that when a prosecutor looks at
19:56
Speaker 4: something like this, they are, like all of us, outraged.
20:00
Speaker 4: Think I want to hold some of the accountable. But no. Ultimately,
20:03
Speaker 4: of course, part of what prosecutors do is use the
20:07
Speaker 4: law as a tool for sending a message to what
20:10
Speaker 4: they believe is unacceptable behavior, what they believe their community
20:14
Speaker 4: wants to hold as a line of accountability, and even
20:18
Speaker 4: what they think matters for their own use of the
20:21
Speaker 4: law and even their own ambitions for the law and
20:25
Speaker 4: their own careers. So I don't think he's necessarily cynical
20:29
Speaker 4: or lying, but it's too much to believe that a
20:31
Speaker 4: prosecutor wouldn't think that this kind of immediately nationwide visible
20:37
Speaker 4: case wouldn't send a message.
20:39
Speaker 1: Any final thoughts echo.
20:41
Speaker 4: You know one last thing, And I thought about this
20:43
Speaker 4: a lot during the Crumbley case. Again, I understand why
20:47
Speaker 4: prosecutor would want to hold parents like this accountable. If
20:51
Speaker 4: I'm perfectly honest, I'm a parent. I don't know what
20:54
Speaker 4: I would do if I were a prosecutor in this position,
20:56
Speaker 4: whether or not I would also want to press charges.
21:00
Speaker 4: But I do think we shouldn't be so cavalier about
21:03
Speaker 4: what it means to hold parents accountable for the behavior
21:07
Speaker 4: of their children. And in particular, as we saw with
21:11
Speaker 4: one precedent affecting a sister state, what will mean when
21:15
Speaker 4: the next case is not as dramatic or not as
21:18
Speaker 4: exceptional and not as egregious, and prosecutors still use these
21:22
Speaker 4: tools to prosecute a case. And what people should really
21:26
Speaker 4: realize is that often when prosecutors do this, it's not
21:30
Speaker 4: nearly so much in the public eye. The overwhelming majority
21:33
Speaker 4: of our cas is something like ninety five percent are
21:37
Speaker 4: leap bargains, and those cases never attract the kind of
21:40
Speaker 4: attention that these sensational cases do. And so every time
21:45
Speaker 4: we empower prosecutors to threaten people with further criminal liability,
21:50
Speaker 4: we're also giving them the power to exact a huge
21:53
Speaker 4: number of guilty pleas that will never see a jury
21:58
Speaker 4: or a reporter.
21:59
Speaker 1: Thank you much for being on the show. That's Professor
22:02
Speaker 1: Eko Yanka of the University of Michigan Law School coming
22:05
Speaker 1: up next. Conservative Supreme Court justices are less likely to
22:11
Speaker 1: explain their recusals. I'm June Grosso and you're listening to Bloomberg.
22:16
Speaker 1: There's been a lot of scrutiny on the Supreme Court
22:19
Speaker 1: justice's recusing themselves, or rather failing to recuse themselves. Last term,
22:25
Speaker 1: Justice's Clarence Thomas and Samuel Alito were criticized for failing
22:30
Speaker 1: to recuse themselves from the controversial presidential immunity case despite
22:35
Speaker 1: calls to recuse because of Thomas's wife's support for the
22:39
Speaker 1: push to overturn the election results and because flags flown
22:43
Speaker 1: at Alito's homes allegedly suggested sympathy for those efforts. And
22:48
Speaker 1: now a review by Bloomberg Law, shows that the conservative justices,
22:52
Speaker 1: unlike their liberal colleagues, routinely declined to explain why they
22:57
Speaker 1: recused themselves from cases joining me is Bloomberg Law. Supreme
23:01
Speaker 1: Court reporter Kimberly Strawbridge Robinson, who's looked at the numbers. So,
23:06
Speaker 1: Kimberly tell us about the difference between the conservative justices
23:10
Speaker 1: and the liberal justices when it comes to explaining their accusals.
23:15
Speaker 5: Yeah, So, I think it really goes back to a
23:18
Speaker 5: lot of the ethics scandals that have been in the
23:21
Speaker 5: news a lot, and sort of the pressure that the
23:23
Speaker 5: public had on the Supreme Court to issue a binding
23:28
Speaker 5: code of conduct. I think people were surprised to learn
23:31
Speaker 5: that the Supreme Court was not subject to sort of
23:33
Speaker 5: binding rules like other federal judges. And so last year,
23:37
Speaker 5: in November of twenty twenty three, the justices, you know,
23:40
Speaker 5: they issued a code of conduct, but they were clear
23:42
Speaker 5: that these are rules that are not new, that they're
23:45
Speaker 5: ones that they've been following. But since then we've been seeing,
23:49
Speaker 5: you know, this distinction between liberal justices and conservative justices,
23:53
Speaker 5: where presumably everybody's following the rules, but the liberal justices
23:58
Speaker 5: will explain the reasons why they're recusing from cases, whereas
24:02
Speaker 5: none of the conservative justices have and so, you know,
24:05
Speaker 5: these are really short explanations and maybe a sentence that
24:08
Speaker 5: just sort of says something general like previous work experience.
24:12
Speaker 5: But you know, it is really a stark line between
24:15
Speaker 5: the democratically appointed justices and the revov caan appoint to justices.
24:20
Speaker 1: Once the Supreme Court has taken a case and it's
24:23
Speaker 1: going to oral argument, you don't often see a recusal.
24:26
Speaker 1: Then when do you usually see the most recusals?
24:30
Speaker 5: You're right, and so there's only one case for next
24:32
Speaker 5: term so far where there's a justice recuse. Those are
24:35
Speaker 5: few and far between because of the problems of you know,
24:38
Speaker 5: possibly having an evenly split court so that the court
24:41
Speaker 5: can't actually decide the question that it agreed to decide.
24:44
Speaker 5: But most of the refusals, the vast majority of them,
24:48
Speaker 5: come whenever the parties ask the justices to hear the case.
24:52
Speaker 5: Typically when they deny those requests. They have thousands every year,
24:56
Speaker 5: they deny most of them, and that's where we see
24:59
Speaker 5: the overwhelming when joy of recusals come in.
25:02
Speaker 1: Are most of the recusals because of prior work experience
25:06
Speaker 1: of the justices for example, well, Elena Kagan worked on
25:10
Speaker 1: the case when she was a solicitor general, so.
25:13
Speaker 5: Most of them are for their previous work experience. And
25:16
Speaker 5: I think you mentioned Justice Kagan. It's really remarkable that,
25:20
Speaker 5: you know, she's been on the court so long now
25:22
Speaker 5: and she's still having recuses on cases where she was
25:24
Speaker 5: the solicitor general, just because you know, it's almost every
25:28
Speaker 5: litigation that was involving the federal government that she sort
25:31
Speaker 5: of needs to sit it out. So you know, she's
25:35
Speaker 5: sort of an outlier there. But a lot of the
25:36
Speaker 5: other justices who were you know, appellate court judges, you know,
25:40
Speaker 5: we see them from time to time having to recuse,
25:43
Speaker 5: and then you know it comes less so as they
25:46
Speaker 5: sit on the bench for longer and longer, and so
25:49
Speaker 5: that's you know a majority of the recusals, but particularly
25:52
Speaker 5: when it comes to Justice Alito, he has a lot
25:55
Speaker 5: of recusals because he's one of the only justices to
25:58
Speaker 5: own individual stock. So we'll see him, you know, occasionally
26:02
Speaker 5: recused because he owns stock, and interestingly also see him
26:05
Speaker 5: when he's recused if the justices do decide to take
26:08
Speaker 5: us a case, he sometimes sells the stock so that
26:11
Speaker 5: he can then come back on the case.
26:13
Speaker 1: Reporters and court insiders can sort of figure out most
26:17
Speaker 1: of the time why a justice is recusing, right, yeah, I.
26:21
Speaker 5: Mean with a little digging. You know, some of the
26:23
Speaker 5: commentary that the justices have given about refusals is that,
26:27
Speaker 5: you know, it's obvious why a justice is recusing, and
26:30
Speaker 5: I guess to them, and you know, the insiders who
26:33
Speaker 5: are familiar with all their stockholdings and you know where
26:35
Speaker 5: they sit on courts previous to the Supreme Court, it
26:38
Speaker 5: can be somewhat obvious, but it does oftentimes take some digging.
26:42
Speaker 5: Particularly you know, there was a case last term where
26:45
Speaker 5: just As Thomas recused himself and you know, he didn't
26:49
Speaker 5: provide an explanation, but it was involving one of his
26:52
Speaker 5: former clerks, and so you know, that's something that an
26:55
Speaker 5: insider might find obvious. But you know, any member of
26:58
Speaker 5: the public who doesn't watch these things as carefully wouldn't
27:01
Speaker 5: really know. So that's where the explanations come in Handy the.
27:04
Speaker 1: Conflict with a former job or stock it's pretty obvious,
27:09
Speaker 1: but there's this catch all that requires a justice to
27:13
Speaker 1: disqualify if their impartiality might reasonably be questioned.
27:18
Speaker 5: Yeah, and this is where it gets sticky, and I
27:21
Speaker 5: don't think it's really unique to judges or lawyers. But
27:25
Speaker 5: whenever we're asked to sort of, you know, gauge how
27:27
Speaker 5: biased we might be, we have a pretty bad measure
27:30
Speaker 5: for that. And the rules are not very clear, and
27:34
Speaker 5: it's up to each individual justice to decide, you know,
27:37
Speaker 5: whether this hypothetical reasonable person who knows all of these
27:40
Speaker 5: facts might think that they are biased and should recuse themselves.
27:45
Speaker 5: But it is really where the tricky ones come up,
27:47
Speaker 5: and I think where some of these explanations would be
27:50
Speaker 5: most helpful.
27:51
Speaker 1: Also when they refuse to recuse themselves. You don't know
27:55
Speaker 1: why either.
27:56
Speaker 5: That's right, And actually people I talk to, you know,
27:59
Speaker 5: some watchdog group said that it actually might be more
28:01
Speaker 5: useful or more public interests for justices to explain when
28:05
Speaker 5: they decide not to recuse. And we have seen, you know,
28:08
Speaker 5: a few times, very few and far between, over the
28:12
Speaker 5: decades where justice has explained their recusal, but typically that
28:16
Speaker 5: or their reasons for not refusing Justice. Scalia famously did
28:20
Speaker 5: so in a case involving than Vice President tick Cheney.
28:23
Speaker 5: But again those are very rare, and you know, some
28:26
Speaker 5: people that I talked to said that there are some
28:28
Speaker 5: danger with providing really robust explanations like that.
28:32
Speaker 1: Will you explain that, because in the statement with the
28:36
Speaker 1: Ethics Code about recusals, it said explanations can be ill
28:41
Speaker 1: advised in certain instances. Examples include circumstances that might encourage
28:46
Speaker 1: strategic behavior by lawyers who may seek to prompt recusals
28:50
Speaker 1: in future cases.
28:53
Speaker 5: Sure, well, I think you know, from speaking to ethics experts,
28:56
Speaker 5: I think what they're trying to get out there is
28:58
Speaker 5: this idea that if one justice refuses because they have
29:03
Speaker 5: this particular relationship with someone, then it sort of provides
29:07
Speaker 5: a precedence for all the other justices, whether or not
29:09
Speaker 5: they agree that recusal is required there, and they're sort
29:13
Speaker 5: of held to that standard, even though refusal decisions are
29:16
Speaker 5: supposed to be made by the individual justices themselves. And
29:19
Speaker 5: so there's sort of a danger with setting a precedent
29:22
Speaker 5: that not everybody agrees with, and you know, the chance
29:26
Speaker 5: that a lawyer who's acting zealously for their client will
29:30
Speaker 5: seek to use that refusal decisions to sort of get
29:33
Speaker 5: a leg up in the case to get a particular justice,
29:36
Speaker 5: whether it be conservative or libal kicked off the case
29:39
Speaker 5: to give their clients a better shot at a good outcome.
29:41
Speaker 1: Are recusals increasing?
29:43
Speaker 5: You know, we haven't seen a big difference in the
29:46
Speaker 5: number of recusals. I mean, again, you know, prior work
29:49
Speaker 5: is going to provide a big bulk of them. There's
29:52
Speaker 5: really very little that the justices can do. The one
29:54
Speaker 5: where there's a potential for it to go down would
29:56
Speaker 5: be in stocks. But again, most of the justices don't
30:00
Speaker 5: individual stocks. It's really mostly Justice Alito. But you know, overall,
30:05
Speaker 5: the numbers haven't really been affected. It's still really early
30:08
Speaker 5: since the Supreme Court adopted it's code of conduct. But
30:11
Speaker 5: you know, people I talked to said that's not surprising
30:13
Speaker 5: because the Justice is emphasized that they've always been doing this.
30:16
Speaker 5: They've always been following these rules for recusals. They just
30:19
Speaker 5: put it down on paper so that people knew that
30:21
Speaker 5: they were bound by something and not sort of going
30:24
Speaker 5: out there willing lilly and making these decisions without any
30:26
Speaker 5: sort of standard.
30:27
Speaker 1: Do you know which justice has recused the least and
30:31
Speaker 1: which the most.
30:32
Speaker 5: Well, you know, Justice Thomas seems to be the one
30:35
Speaker 5: who has recused the least. I think that makes a
30:37
Speaker 5: lot of sense though, based on some of the stuff
30:39
Speaker 5: we're talking about here. He doesn't own any private stock
30:42
Speaker 5: that would require him to just qualify himself. And it's
30:45
Speaker 5: been a really long time since you was a judge,
30:47
Speaker 5: so a lot of those cases just aren't in the
30:49
Speaker 5: federal system anymore. So Justice Thomas really does recuse a
30:53
Speaker 5: lot less frequently than some of the other justices, but
30:57
Speaker 5: also Chief Justice Roberts doesn't refuse a lot of either.
31:00
Speaker 5: You know, a lot of his cases seem to work
31:02
Speaker 5: their way through the course, and really where we see
31:04
Speaker 5: him getting recused to moost is people will name him
31:06
Speaker 5: as a party in the case, and then obviously you
31:09
Speaker 5: didn't hear that case.
31:10
Speaker 1: And what about the justice who have the most recusals.
31:13
Speaker 5: You know, we talked a little bit about Justice Kayane.
31:15
Speaker 5: She has a lot because of sort of the realities
31:18
Speaker 5: of her job that she touched almost every case that
31:21
Speaker 5: ran through the federal system for time that she was
31:24
Speaker 5: a Solicitor General, and those cases last a long time.
31:27
Speaker 5: And then what we really see it's sort of a
31:29
Speaker 5: bit as I mentioned before, where it'll sort of peter
31:33
Speaker 5: out the longer that the justices are on the court.
31:35
Speaker 5: So right now, you know, you have a lot of
31:37
Speaker 5: refusals from the newer justices just Jackson and Barrett and
31:40
Speaker 5: Cavanaugh and Gorsic, and not as many from the ones
31:43
Speaker 5: who have been there a long time. But over time
31:45
Speaker 5: those will also sort of tend to peter out.
31:48
Speaker 1: Chief Justice Roberts when the Alito flag Flat boys going on, said,
31:53
Speaker 1: you know, it's up to the individual justices to recuse themselves.
31:57
Speaker 1: That's a decision they make, but you and your store
32:00
Speaker 1: I already said, there are some state supreme courts that
32:03
Speaker 1: have different mechanisms for recusal.
32:07
Speaker 5: Right, And not only different mechanisms for you know, all
32:11
Speaker 5: of their judges, but also for the judges that sit
32:13
Speaker 5: on the highest courts in their states so are sort
32:16
Speaker 5: of similarly situated to US Supreme Court justices. And there
32:20
Speaker 5: are a handful of states that do different things. In
32:22
Speaker 5: Texas was one of the ones that was brought up
32:24
Speaker 5: a lot to me, you can refer the decision to
32:27
Speaker 5: the full court so that you kind of get everybody
32:29
Speaker 5: else's perspective on it. And one thing that I think
32:32
Speaker 5: Watchdrug groups were saying was that, you know, maybe that
32:35
Speaker 5: isn't a good fit for the US Supreme Court, but
32:38
Speaker 5: it's not something that they should just dismiss out of hand.
32:40
Speaker 5: They should at least look into it and see what
32:43
Speaker 5: the dangers are, see what the experience has been like
32:46
Speaker 5: in those other states.
32:47
Speaker 1: The legislation and the Democrats who want binding ethics codes.
32:52
Speaker 1: Is it because as far as recusals they want more
32:56
Speaker 1: transparency or is there another reason.
33:00
Speaker 5: I think it's in large part because of the transparency
33:02
Speaker 5: I think, particularly when it comes to things like providing explanations,
33:06
Speaker 5: just making it a little bit easier for the public
33:08
Speaker 5: to know. But you know, I also think it has
33:10
Speaker 5: a lot to do with, you know, sort of bringing
33:12
Speaker 5: back public confidence in the court. You know, the Supreme
33:15
Speaker 5: Court has had historically low public confidence numbers as of late,
33:19
Speaker 5: and you know that's really a big deal for the
33:21
Speaker 5: Supreme Court, which you know famously doesn't have a way
33:24
Speaker 5: to enforce any of its judgments except through sort of
33:27
Speaker 5: the good will of the people. So I think a
33:29
Speaker 5: lot of people see it as a good steps to
33:31
Speaker 5: sort of getting some more goodwill with the public.
33:33
Speaker 1: And it's been quite a few years now that we've
33:35
Speaker 1: been saying this year is historically low approval. It just
33:39
Speaker 1: keeps going down.
33:40
Speaker 5: So we'll see it does and we'll see if the
33:44
Speaker 5: adoption of the Code of Conduct does anything to increase
33:48
Speaker 5: that public confidence and sort of what the justices decide
33:51
Speaker 5: to do themselves that might increase it. There's been a
33:53
Speaker 5: number of justices recently, particularly as they're going around promoting
33:57
Speaker 5: their books, who have talked about this and who have
33:59
Speaker 5: said that they think an enforceable code would be desirable.
34:03
Speaker 5: So I guess we'll wait and see what happens next.
34:06
Speaker 1: Thanks so much, Kimberly, always a pleasure to have you on.
34:09
Speaker 1: That's Bloomberg Law. Supreme Court reporter Kimberly Strawbridge Robinson and
34:14
Speaker 1: that's it for this edition of the Bloomberg Law Podcast.
34:16
Speaker 1: Remember you can always get the latest legal news by
34:19
Speaker 1: subscribing and listening to the show on Apple Podcasts, Spotify,
34:23
Speaker 1: and at Bloomberg dot com, slash podcast, Slash Law. I'm
34:27
Speaker 1: June Grosso and this is Bloomberg