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SCOTUS Moves to the Right & Lisa Cook Firing Blocked · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Brossel from Bloomberg Radio.
0:08
Speaker 2: Yesterday, a federal judge temporarily blocked President Trump from ousting
0:14
Speaker 2: Federal Reserve Governor Lisa Cook over allegations of mortgage fraud,
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Speaker 2: an order that allows Cook to attend a highly anticipated
0:22
Speaker 2: FED policy meeting next week to vote on whether to
0:25
Speaker 2: lower interest rates. Today, the Trump administration appealed that order
0:30
Speaker 2: to the DC Circuit Court of Appeals, joining me is
0:33
Speaker 2: Bloomberg Intelligence senior litigation analyst Elliott Stein.
0:37
Speaker 1: Elliott.
0:38
Speaker 2: Federal Judge Ga Cobb found that Trump likely violated the
0:42
Speaker 2: Federal Reserve Act and Cook's due process rights. Start by
0:47
Speaker 2: telling us about her reasoning under the Federal Reserve Act.
0:50
Speaker 1: Sure So, on that issue, she said that the four
0:53
Speaker 1: cause standard wasn't met because, even though it's not defined
0:58
Speaker 1: in the statute, based on the history and the context
1:02
Speaker 1: around its insertion into the Federal Reserve Act, it suggested
1:07
Speaker 1: strongly that cause requires some sort of event while the
1:12
Speaker 1: person is in office that can affect how they carry
1:17
Speaker 1: out their duties in that role, and in this case,
1:21
Speaker 1: she said that wasn't met because the allegations pertain to
1:25
Speaker 1: conduct in twenty twenty one, before Lisa Cook was confirmed
1:30
Speaker 1: to the Federal Reserve Board.
1:32
Speaker 2: The judge said, moreover, it would incentivize the president and
1:36
Speaker 2: subordinates to dig up prior conduct, however insubstantial to justify
1:41
Speaker 2: removal from the board, even where the board member has
1:44
Speaker 2: been up to that point performing their statutory duties impeccably.
1:49
Speaker 2: Was that sort of a shot at what happened here
1:52
Speaker 2: where Federal Housing Finance Agency Director Bill Poulty dug up
1:57
Speaker 2: these allegations from mortgages that Cook obtained in twenty twenty one.
2:03
Speaker 1: Yeah, yeah, I think that's a fair interpretation. And in
2:06
Speaker 1: other parts of the opinion, Judge Cobb said, you know,
2:09
Speaker 1: cause can't mean sort of vague, unsubstantiated allegations without any
2:15
Speaker 1: form of investigation. But I thought what was interesting in
2:18
Speaker 1: the opinion was that Judge Cobb did say there could
2:21
Speaker 1: be circumstances where the conducted issue takes place before the
2:25
Speaker 1: person is in office. But then let's say that person
2:28
Speaker 1: is convicted while they're in office. Judge Cobbs suggested that
2:31
Speaker 1: conviction could meet the four cause standards, So you know,
2:35
Speaker 1: that scenario could also incentivize people to dig up dirt
2:39
Speaker 1: from years ago. So I'm not really sure that example
2:43
Speaker 1: that Judge Cobb used would eliminate the possibility of, you know,
2:46
Speaker 1: political opponents trying to dig up dirt.
2:49
Speaker 2: Did she comment at all on the explanations from Cook's
2:52
Speaker 2: lawyers that if there were any eras, she didn't mean
2:56
Speaker 2: to deceive anyone, No one was harmed, and perhaps that
2:59
Speaker 2: even this was a raical error.
3:00
Speaker 1: She did sort of allude to that, I think in
3:04
Speaker 1: a footnote if I recall correctly. But that sort of
3:07
Speaker 1: goes to the due process part of the opinion, right
3:10
Speaker 1: where Judge Cobb said that in addition to the statutory violation,
3:15
Speaker 1: there was a constitutional violation because Lisa Cook didn't get
3:19
Speaker 1: proper notice or an opportunity to be heard before she
3:22
Speaker 1: was removed, And.
3:23
Speaker 2: So the judge was saying that finding out from Trump
3:26
Speaker 2: on social media.
3:28
Speaker 1: Was not enough, right exactly. Yeah, that went to the
3:31
Speaker 1: notice part of the equation. And then you know, an
3:34
Speaker 1: opportunity to be heard also has to be satisfied, and
3:38
Speaker 1: for that there has to be some sort of formal
3:40
Speaker 1: hearing essentially, and Judge Cob cited to other cases where
3:46
Speaker 1: officials were removed for cause and there usually was some
3:49
Speaker 1: sort of formal hearing where the official could present their
3:52
Speaker 1: side of the story.
3:53
Speaker 2: Tell us a little bit about Cook's allegations that Trump's
3:58
Speaker 2: moved to auster is politely motivated.
4:01
Speaker 1: Cook's point is you can't separate allegations against Lisa Cook
4:06
Speaker 1: from the months of accusations against Jerome Powell and then
4:12
Speaker 1: other comments President Trump has made about trying to gain
4:16
Speaker 1: a majority on the Federal Reserve Board. And so that's
4:18
Speaker 1: the context that Lisa Cook is pointing to as to
4:22
Speaker 1: why she thinks the mortgage frount accusations are a pretext
4:25
Speaker 1: just trying to remove Federal Reserve Board governors for policy disagreements, essentially,
4:32
Speaker 1: because even the Trump administration conceded that you can't satisfy
4:37
Speaker 1: the four cause requirement by removing someone for a policy disagreement.
4:41
Speaker 2: So that ruling came down yesterday and today already the
4:46
Speaker 2: Trump administration is appealing.
4:48
Speaker 1: Yep, no surprise there.
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Speaker 2: No surprise. But have they stated their grounds for appeal yet?
4:53
Speaker 1: So I've only seen the notice of appeal so far,
4:55
Speaker 1: and I've been trying to refresh at dock it to
4:59
Speaker 1: get others are Yeah, I've been refreshing that frantically. And
5:04
Speaker 1: this will go to an emergency motions panel on the
5:06
Speaker 1: DC's circuit. It seems from a different case where I
5:10
Speaker 1: was able to track down the emergency Motions panel in
5:12
Speaker 1: that case, it seems like it'll be a favorable panel
5:14
Speaker 1: to Lisa Cook in the sense that it's the Biden
5:16
Speaker 1: appoint and an Obama appoint and then a trumpet point e,
5:21
Speaker 1: so sort of two judges that are probably going to
5:22
Speaker 1: be more sympathetic to Lisa Cook's arguments. And then from there,
5:26
Speaker 1: assuming the government loses at the DC Circuit panel stage,
5:30
Speaker 1: I presume the administration will go to the Supreme Court.
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Speaker 2: The FED Board meeting, the highly anticipated FED Board meeting.
5:39
Speaker 2: So Cook will be able to go to that meeting
5:42
Speaker 2: if this decision is upheld.
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Speaker 1: Right, yeah, exactly. Unless this decision is stayed, she will
5:50
Speaker 1: serve at that meeting. And I do think it's possible
5:53
Speaker 1: that the DC Circuit Emergency Motions Panel can rule by then,
5:56
Speaker 1: and again, if it's a favorable panel to Lisa Cook,
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Speaker 1: as I suspect it will be, I don't envision Judge Cobbs'
6:03
Speaker 1: decision being put on hold, in which case Lisa Cook
6:06
Speaker 1: would be able to participate at that meeting. I don't
6:09
Speaker 1: think we'll get anything from the Supreme Court by the
6:12
Speaker 1: September sixteenth date, unless the DC Circuit moves even faster
6:17
Speaker 1: than I think they're going to. I mean, it's possible,
6:20
Speaker 1: It's true they you know, you could get a DC
6:22
Speaker 1: Circuit panel ruling on let's say Monday the fifteenth, and
6:26
Speaker 1: an administrative to stay by the Supreme Court like the
6:29
Speaker 1: next day or even that day. So it's not out
6:31
Speaker 1: of the realm of possibility. But I still think the
6:34
Speaker 1: more important dates are in February, not next week, because
6:38
Speaker 1: next week Lisa Cook's only one vote out of twelve,
6:42
Speaker 1: and I don't think it will make all that much
6:44
Speaker 1: of a difference. But in February, you know, if President
6:48
Speaker 1: Trump can get a more favorable balance on the Federal
6:51
Speaker 1: Reserve Board, let's say he's able to move Lisa Cook
6:54
Speaker 1: out of her role and Stephen Miron get confirmed as
6:58
Speaker 1: he's expected to, you know, you could potentially have a
7:01
Speaker 1: three to three balance on the Federal Reserve Board, the
7:04
Speaker 1: three who are sympathetic to Trump and three who aren't.
7:07
Speaker 1: And at that point you may not get the regional
7:10
Speaker 1: Reserve Bank presidents reappointed in February, in which case you
7:15
Speaker 1: potentially could get a shift on the FMC in a
7:19
Speaker 1: direction that's more favorable to President Trump.
7:22
Speaker 2: And what are the odds of Cook prevailing when this
7:25
Speaker 2: does get to the Supreme Court? If when I think
7:29
Speaker 2: when is a safe.
7:30
Speaker 1: Bed, I mean, I think it's an extremely close case,
7:33
Speaker 1: but I do give her the slight edge. It's a
7:37
Speaker 1: Supreme Court. The three justices appointed by Democrats are likely
7:41
Speaker 1: to rule in her favor because they'll be more concerned
7:44
Speaker 1: about FED independence and be more concerned about an expensive
7:48
Speaker 1: executive authority. I think Justice is Thomas Alito and probably
7:52
Speaker 1: Gorsicic are more likely to rule for President Trump. And
7:56
Speaker 1: then you have sort of the three who have now
7:58
Speaker 1: become the middle Roberts Kavanaugh and Amy Cony Barrett. And
8:03
Speaker 1: you know, at that point Lisa Cook needs to get
8:06
Speaker 1: two of them, and I think she has a pretty
8:08
Speaker 1: good shot at that. Justice Kavanaugh in the past has
8:11
Speaker 1: written in opinions concerning the four cause removal restriction that
8:16
Speaker 1: he scented strongly that the FED is different from other agencies,
8:20
Speaker 1: similar to what the Supreme Court said in May and
8:22
Speaker 1: the Wilcox decision, and given that they do seem to
8:27
Speaker 1: distinguish the FED from other agencies. They have to give
8:31
Speaker 1: some sort of effect to the four cause removal restriction
8:35
Speaker 1: so that it's not rendered meaningless. And with that in mind,
8:39
Speaker 1: I think they probably would agree with parts of Dudge
8:45
Speaker 1: Cobb's decision that the four cause removal restriction has to
8:48
Speaker 1: mean something and that the mere allegations here didn't need it.
8:52
Speaker 2: And Elliott, has the FED made any more statements since
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Speaker 2: the judge's decision.
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Speaker 1: I haven't seen a statement today. I may have missed one,
8:59
Speaker 1: I know. Pass he said they were just abide by
9:02
Speaker 1: the court decision, which makes sense. And that's essentially why
9:06
Speaker 1: Lisa Cook named care Powell and the Federal Reserve Board
9:11
Speaker 1: both individually and collectively as defendants, because in Judge Cobb's ruling,
9:19
Speaker 1: you know, she essentially enjoined the Federal Reserve Board from
9:24
Speaker 1: a sectuating President Trump's termination letter. So, you know, I
9:29
Speaker 1: don't think the FED necessary anything other than simply abide
9:32
Speaker 1: by the decision.
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Speaker 2: So we'll see now how fast the DC Circuit Emergency
9:38
Speaker 2: Panel acts. Thanks so much, Elliott. That's Elliott Stein, Bloomberg
9:43
Speaker 2: Intelligence Senior Litigation analyst. Coming up next on The Bloomberg
9:47
Speaker 2: Law Show later this month. Chief Justice John Roberts celebrates
9:52
Speaker 2: twenty years being the chief and in that time, the
9:56
Speaker 2: Roberts Court has moved far to the right, changing the
9:59
Speaker 2: law in areas from abortion and guns to race and
10:03
Speaker 2: presidential power. I'm June Grosso and you're listening to Bloomberg.
10:08
Speaker 2: Chief Justice John Roberts famously compared judges to umpires during
10:13
Speaker 2: his confirmation hearings in twenty ten.
10:16
Speaker 3: Judges are like umpires. Umpires don't make the rules, they
10:20
Speaker 3: apply them. The role of an umpire and a judge
10:24
Speaker 3: is critical. They make sure everybody plays by the rules,
10:28
Speaker 3: but it is a limited role. Nobody ever went to
10:31
Speaker 3: a ballgame to see the umpire.
10:34
Speaker 2: Now, twenty years later, looking at the Court's decisions under
10:39
Speaker 2: roberts stewardship, just applying the rules in a limited role
10:44
Speaker 2: doesn't seem to have been the practice of the Roberts Court.
10:47
Speaker 2: With its conservative majority and now super majority, the Court
10:52
Speaker 2: has changed the law on abortion, gun rights, religious rights, race,
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Speaker 2: agency authority, and residential power, overturning precedent along the way
11:04
Speaker 2: and moving more and more to the right. My guest
11:07
Speaker 2: is constitutional law professor Eric Siegel of Georgia State University.
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Speaker 2: Let's start with the Court itself. Is the Roberts Court
11:16
Speaker 2: the most conservative Supreme Court in our history.
11:20
Speaker 4: You know, it is challenging to compare across decades, and
11:26
Speaker 4: also I think to some degree what is conservative is
11:29
Speaker 4: in the eye of the beholder. It is certainly the
11:32
Speaker 4: most conservative court of my lifetime, which is sixty seven years.
11:38
Speaker 4: And if I was living in nineteen thirty four, I
11:41
Speaker 4: would be very mad to Supreme Court if I was
11:43
Speaker 4: a liberal or a progressive. They were really mad to
11:46
Speaker 4: Supreme Court, so much so that FDR went on the
11:48
Speaker 4: biggest media of the day and said, we have to
11:51
Speaker 4: save the country from the court and save the Constitution
11:55
Speaker 4: from the Court. So it's a little difficult for me
11:58
Speaker 4: to say liberals and progressive today are angrier than liberals
12:02
Speaker 4: and progressives were in nineteen thirty four when the New
12:04
Speaker 4: Deal was a catastrophe for America. It is certainly as
12:08
Speaker 4: conservative at any court I think in American history.
12:11
Speaker 2: Roberts famously said during his confirmation hearing that judges are
12:16
Speaker 2: like umpires. Umpires don't make the rules, they apply them.
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Speaker 2: Has he behaved like an umpire?
12:24
Speaker 1: Well?
12:24
Speaker 4: Justice Kavanaugh repeated that years later as well, despite the
12:28
Speaker 4: mockery and laughter of virtually all court watchers pundits across
12:32
Speaker 4: the political spectrum on that statement by Justice Roberts. They're
12:36
Speaker 4: not umpires. They've never been umpires. In eighteen fifty seven,
12:40
Speaker 4: Congress wanted to end slavery in the territories. Congress had
12:43
Speaker 4: the power to do that under the Constitution. The Court
12:46
Speaker 4: made up a new rule and said no. From nineteen
12:49
Speaker 4: hundred to nineteen thirty six, the Court struck down hundreds
12:52
Speaker 4: of laws about minimum wages, overtime rules, labor conditions. The
12:56
Speaker 4: Constitution allows Congress to do that. The Court wasn't playing
12:59
Speaker 4: like an empire. And I think conservatives would fairly say
13:03
Speaker 4: that cases like Grow versus Late were not the justices
13:05
Speaker 4: acting like umpires. So no, it was a silly statement
13:08
Speaker 4: when he made it. It was even sillier for Justice
13:10
Speaker 4: Kavanaughs to repeat it during this confirmation airing. The Constitution
13:14
Speaker 4: is a very vague document when it comes to litigation.
13:17
Speaker 4: There are some specific things. The president has to be
13:20
Speaker 4: thirty five to centers from every state. Inauguration day is
13:24
Speaker 4: January twentieth, which by the way, is too long from November,
13:27
Speaker 4: you know, But we don't litigate those clauses. We litigate
13:30
Speaker 4: due process, equal protection, cruel and usual punishment, unreasonable searchers
13:35
Speaker 4: and seizures, and so on. It'd be saying to an umpire,
13:38
Speaker 4: you get to decide what's fair in a baseball game.
13:41
Speaker 4: That's not what umpires do in baseball. They have some discretion.
13:44
Speaker 4: Of course, we've told the Supreme Court in effect make
13:47
Speaker 4: the constitutional rules for America, and that has nothing to
13:50
Speaker 4: do with sports.
13:51
Speaker 2: Someone There are a lot of areas where the Supreme
13:54
Speaker 2: Court has changed or reshaped the law. Most people know
13:58
Speaker 2: about abortion rights and gun rights, But how has the
14:02
Speaker 2: Court changed the law around race? And what's been Roberts's
14:07
Speaker 2: role in changing the.
14:08
Speaker 4: Rules other than the presidential immunity decision in Trump versus
14:13
Speaker 4: United States, which almost no legal scholars predicted liberal, moderate
14:17
Speaker 4: or conservative and has run of the worst opinions in
14:20
Speaker 4: Supreme Court history. In my opinion and many others, leaving
14:23
Speaker 4: aside that opinion written by Justice Roberts, I think he's
14:27
Speaker 4: done the most damage to America when it comes to race,
14:30
Speaker 4: and it started in his very first term when the
14:33
Speaker 4: cities of Seattle and Louisville. Let's take Louisville for a minute.
14:38
Speaker 4: Louisville had segregation under the law for many, many years,
14:42
Speaker 4: those schools were still segregated. So at the very local level,
14:47
Speaker 4: students and teachers and parents and school board members and
14:51
Speaker 4: voters got together and came up with a very limited
14:55
Speaker 4: plan to make sure that the public schools in Louisville
14:58
Speaker 4: had some minimal degree of desegregation so that white kids
15:03
Speaker 4: and black kids in Louisville could go to school together.
15:05
Speaker 4: And no judge ordered this. This was volunteer and in
15:08
Speaker 4: his very first term, the Roberts Court struck that down.
15:11
Speaker 4: And that's when Justice Roberts said the famous line, the
15:14
Speaker 4: way to stop discrimination based on race is to stop
15:17
Speaker 4: discriminating based on race. In the context of Louisville, Kentucky,
15:21
Speaker 4: which discriminated in the basis of race legally for a century, that's,
15:25
Speaker 4: in my opinion, a very bizarre statement. And even Justice Kennedy,
15:28
Speaker 4: who was a fifth vote in that case, disagreed with
15:31
Speaker 4: that statement. So it started there. Everybody knows that Justice
15:34
Speaker 4: Roberts does not like voting rights. As a young attorney
15:38
Speaker 4: in the Reagan administration in nineteen eighty one, he wrote
15:41
Speaker 4: some scathing things about the Voting Rights Act, and then,
15:43
Speaker 4: of course, in Shelby County versus holder. He was able
15:46
Speaker 4: to concoct a new rule that Congress can't treat different
15:50
Speaker 4: states differently without a strong reason, and struck down a
15:53
Speaker 4: law that was passed by a unanimous Senate and signed
15:57
Speaker 4: by a Republican president. That law was struck down, and
16:01
Speaker 4: then the very next day Texas and North Carolina passed
16:04
Speaker 4: voting rules they could not have passed prior to that
16:06
Speaker 4: law being struck down. They've also interpreted the Voting Rights
16:10
Speaker 4: Act very narrowly, and I think this next year even
16:13
Speaker 4: more narrowly again. And then, of course there's the Affirmative
16:15
Speaker 4: Action case, which overturned fifty years of president and said
16:19
Speaker 4: colleges and universities are not allowed to use race at
16:22
Speaker 4: all in their admissions process. It says, if Justice Roberts
16:26
Speaker 4: thinks America started in two thousand and six when he
16:29
Speaker 4: became Chief Justice, from maybe nineteen eighty one when he
16:32
Speaker 4: was an attorney for the Justice Department and race was
16:35
Speaker 4: never a problem in this country, it's as if he
16:38
Speaker 4: thinks we can just snap our fingers and all of
16:40
Speaker 4: our racial divisions will go away, when all the data
16:44
Speaker 4: shows that black Americans today economically are really not any
16:49
Speaker 4: significantly better off than they wore twenty thirty, forty fifty
16:52
Speaker 4: years ago, and our justice system is infected with racism,
16:56
Speaker 4: and Justice Roberts has really turned a cold shoulder to
17:00
Speaker 4: dealing with those problems.
17:02
Speaker 2: You mentioned presidential immunity and that decision, which I agree
17:06
Speaker 2: no one predicted and which was written by the Chief Justice.
17:10
Speaker 2: How has it changed the powers of the president.
17:14
Speaker 4: I'm teaching that case tonight and I had a little
17:16
Speaker 4: bit of a new observation this morning about that case.
17:19
Speaker 4: It's a little bit wonky, but some people remember that
17:23
Speaker 4: a Supreme Court with nine Democrats in nineteen fifty two
17:28
Speaker 4: told a Democrat president, Harry Truman, that he couldn't seize
17:32
Speaker 4: the steel mills in time of war. That's nine Democrats.
17:36
Speaker 4: Six of them voted, you can't do that, mister president,
17:38
Speaker 4: and he said, very serious things are why you wanted
17:41
Speaker 4: to do it. And in that case, there's a famous
17:43
Speaker 4: opinion by Justice Jackson, again little bit wonky, but not really,
17:46
Speaker 4: where he divided these kind of cases into three categories,
17:50
Speaker 4: where Congress tells the president he can do something, where
17:53
Speaker 4: Congress tells the president he can't, and a twilight zone
17:56
Speaker 4: in between. Now, not Justice Roberts's immunity decision to me
18:00
Speaker 4: that he thought he was doing something statesmanlike. That case
18:03
Speaker 4: had three buckets, and that case is still good law
18:06
Speaker 4: for official action, and that case is known as one
18:08
Speaker 4: of the most important cases in separation of power system.
18:11
Speaker 4: Justice Roberts divided presidential immunity into three buckets as well
18:16
Speaker 4: for actions that he takes in his core executive functions
18:20
Speaker 4: like commander in chief. He's absolutely immune from future criminal
18:24
Speaker 4: prosecution for unofficial conduct, private conduct. He has no immunity
18:29
Speaker 4: at all. He goes out to a bar, drinks and
18:31
Speaker 4: punches somebody. He has no immunity for things that are
18:34
Speaker 4: in between that where Congress has authorized him to act
18:37
Speaker 4: or not sure if he has the authority. He has
18:39
Speaker 4: a strong presumptive immunity, but that would depend on the
18:42
Speaker 4: fact it's three categories. And I think he is trying
18:45
Speaker 4: to mirror what Justice Jackson is a very popular justice
18:48
Speaker 4: among all people, liberal, conservative and moderate, was trying to do.
18:53
Speaker 4: And if he had stopped there, I think we all
18:55
Speaker 4: would have said, Okay, that kind of makes sense. But
18:58
Speaker 4: he didn't. They two wrinkles, and this was five justices.
19:02
Speaker 4: Amy Coney Barrett did not agree with this, he said,
19:04
Speaker 4: how do we distinguish between official conduct and unofficial conduct?
19:09
Speaker 4: And what he said was two things. He can't question
19:13
Speaker 4: motives and you can't use obviously official acts to prove
19:18
Speaker 4: unofficial acts. Those two evidentiary rules make the president effectively
19:22
Speaker 4: immune from prosecution real quickly. If the president and the
19:25
Speaker 4: Attorney general are walking down the street and they see
19:28
Speaker 4: Segull walking down the street and they say, you know what,
19:31
Speaker 4: he's a national security risk, and that president takes out
19:34
Speaker 4: his gun and shoots me in cold blood, that three
19:37
Speaker 4: retires from the presidency, they prosecute him for murder. His
19:41
Speaker 4: motive for shooting me cannot be examined. So when he
19:44
Speaker 4: says I did it for national security reasons, we're done.
19:47
Speaker 4: The attorney general might testify, ask not why he did it.
19:51
Speaker 4: He did it. Doesn't like Siegel, that testimony doesn't come
19:54
Speaker 4: in because testimony about the evidence that he has with
19:57
Speaker 4: his advisors about any kind of conduct is basically an admissive.
20:01
Speaker 4: All of that, as a long way of saying, puts
20:03
Speaker 4: the president above the law. And there is no effective
20:06
Speaker 4: way to criminally prosecute a president unless the conduct, well
20:10
Speaker 4: even if the conduct is unofficial, he's going to say
20:12
Speaker 4: he had an official reason for doing it, and we're
20:15
Speaker 4: not allowed to talk about his motive. That's what confused everybody,
20:19
Speaker 4: and that's a real problem going for I was shocked
20:23
Speaker 4: the other day when an interviewer asked Justice Amy Coney Barrett,
20:26
Speaker 4: who's doing her book tour, if the president ordered Seal
20:29
Speaker 4: Team six to kill a political rival, would that be
20:34
Speaker 4: immunized by the Trump decision? Now, in any sane world,
20:37
Speaker 4: the answer would be, of course not. The President can't
20:40
Speaker 4: go around ordering the Seals themes to kill his political rivals,
20:45
Speaker 4: and so she should have said, of course not. But
20:47
Speaker 4: what she said was, I don't know. And that's the
20:50
Speaker 4: country we're living in right now, and that's the effect
20:53
Speaker 4: of the immunity decision, and that's just really a shame.
20:56
Speaker 2: And looking at the emergency docket, or the so called
20:59
Speaker 2: shadow docket, the Supreme Court has sided with the administration
21:03
Speaker 2: in almost all the emergency cases since January, on everything
21:09
Speaker 2: from mass federal layoffs to banning transgender people from the
21:14
Speaker 2: military to lifting restrictions on immigration stops. Even though administration
21:20
Speaker 2: officials have been so critical of federal judges and went
21:26
Speaker 2: so far as to sue the entire bench of federal
21:30
Speaker 2: judges in Maryland.
21:32
Speaker 4: I don't know what's happening. It is my view that
21:36
Speaker 4: Supreme Court justices are and have always been ideological. If
21:40
Speaker 4: you had life tenure, an effectively unreviewable power, if you've
21:44
Speaker 4: got four of your committee members to agree with you,
21:47
Speaker 4: or court members, you would impose your ideology, and so
21:50
Speaker 4: would I. We felt strongly about But the Court has
21:53
Speaker 4: not always been partisan. The Casey decision which affirmed Rovers's
21:57
Speaker 4: wead had seven Republicans. I just mentioned that a court
22:00
Speaker 4: with nine Democrats to the Democrat president, you can't do
22:04
Speaker 4: something during time of war. So the Court's always been ideological,
22:07
Speaker 4: but not partisans. The Roberts Court, from the very beginning,
22:10
Speaker 4: it's overwhelming ideological value is partisanship. They want to help
22:16
Speaker 4: the Republican Party, and almost everything they've done can be
22:20
Speaker 4: explained if you see the Court through the lens of
22:23
Speaker 4: an institution that is trying to help the Republican part.
22:27
Speaker 4: And so this doesn't surprise me at all. What's happening.
22:31
Speaker 4: Some of us thought maybe because Donald Trump was president,
22:34
Speaker 4: the Court would be less partisan than it has been.
22:37
Speaker 4: If anything, has been more partisan this time around, without
22:40
Speaker 4: giving us reasons. As Professor Steve Loddick has repeatedly pointed
22:43
Speaker 4: out in his book The Shadow Docket and other places,
22:47
Speaker 4: they don't give us reasons for many of these decisions.
22:49
Speaker 4: And we must remember three of these people represented George
22:53
Speaker 4: Bush during Bush Bush's Corps. They all came up through
22:56
Speaker 4: core Republican Party rank, and I will say the three
22:59
Speaker 4: Democratic nominees also favorite Democrats. But usually there's a balance
23:03
Speaker 4: of values between partisanship and personal ideology. Justice Kennedy famously
23:08
Speaker 4: voted for gay rights. Justice O'Connor kept affirmative action a lot.
23:13
Speaker 4: Justice White, a Democrat, voted conservative many many times. These
23:17
Speaker 4: justices are Republicans first, foremost, and almost always, which doesn't
23:22
Speaker 4: mean Republicans always win, because the court sometimes wants to
23:26
Speaker 4: throw people a bone, and also because on little issues
23:30
Speaker 4: they might disagree with the Republican Party platform, but on
23:33
Speaker 4: all the big issues, this is the Republican court.
23:35
Speaker 2: Coming up next, is Roberts really an institutionalist? This is Bloomberg.
23:42
Speaker 2: I've been talking to constitutional law professor Eric Siegel of
23:46
Speaker 2: the Georgia State University about Chief Justice John Roberts celebrating
23:51
Speaker 2: twenty years as Chief Justice. Come the end of the
23:54
Speaker 2: month and how the Roberts Court has changed the law.
23:58
Speaker 2: Roberts did write the opinions, say saving Obamacare, and in
24:02
Speaker 2: the Dobbs decision, he wouldn't have gone so far as
24:06
Speaker 2: to actually overturn Roe v. Wade. So is it Roberts
24:10
Speaker 2: that's moving the Court to the right or is it
24:13
Speaker 2: the presence of the three Trump appointees that gave the
24:17
Speaker 2: conservatives a super majority that the liberals just can't fight.
24:23
Speaker 4: There's no question those three Trump appointees have played and
24:28
Speaker 4: will continue to play a significant role in moving the
24:31
Speaker 4: court far to the right. But it's also a little
24:35
Speaker 4: bit of a myth that Justice Roberts was ever anything
24:39
Speaker 4: less than an extremely conservative justice. Yes, he did save
24:46
Speaker 4: part of Obamacare. Remember he did not save the medicaid
24:50
Speaker 4: part of Obamacare, which was actually a key part of
24:53
Speaker 4: that law. And by striking down that part of the law,
24:56
Speaker 4: the Court did serious damage to Obamacare in complicated ways
25:01
Speaker 4: that health policy experts could explain. Now, when I say
25:04
Speaker 4: that in public, people often say, but that was seven
25:06
Speaker 4: to two. But we all know from reporting done that
25:09
Speaker 4: Justice Roberts coerced Kagan and Bryer to join that part
25:13
Speaker 4: of the opinion so he did save Obamacare as a whole,
25:16
Speaker 4: but he cut out a big part of it, which
25:18
Speaker 4: really hurt that law. Before twenty twelve, in the seven
25:21
Speaker 4: years preceding that case, he had never joined with the
25:24
Speaker 4: liberals in a five to four opinion. Since then, he
25:26
Speaker 4: has done it. He's joined the liberals a few times,
25:29
Speaker 4: and you're right about Dobbs, but there is no question
25:32
Speaker 4: that he would have eventually voted to overturn Row. Justice
25:35
Speaker 4: Roberts's formula has been consistently in voting rights race cases
25:40
Speaker 4: and abortion cases and separation of powers cases. Punch holes
25:44
Speaker 4: in the precedent, punch holes in the precedent, then reverse
25:47
Speaker 4: the president. There is no doubt he would have eventually
25:50
Speaker 4: voted to overturn Roe versus Ways. So I think even
25:55
Speaker 4: a five to four court run by Justice Roberts would
25:58
Speaker 4: be an extremely concerned court, And with the exception of
26:02
Speaker 4: Justice Kennedy's votes on affirmative action in gay rights, was
26:05
Speaker 4: an extremely conservative court for most of Justice Roberts's court.
26:09
Speaker 2: So then do you buy the theories that Roberts is
26:12
Speaker 2: an institutionalist and an incrementalist.
26:16
Speaker 4: He is an incrementalist and strategy He is absolutely not
26:20
Speaker 4: an institutionalist, and I back wrote an article for the
26:24
Speaker 4: wake Forest Law Review saying that this is going to
26:27
Speaker 4: sound personal, So I apologize to your listeners if it
26:30
Speaker 4: sounds personal.
26:31
Speaker 1: It's not.
26:32
Speaker 4: I'm just kind of a scholar trying to figure things out.
26:36
Speaker 4: Justice Roberts leads with Huberts, the way to stop discrimination
26:41
Speaker 4: based on race is to stop discriminating based on rapes.
26:44
Speaker 4: His state is one of the most huboristic statements I've
26:47
Speaker 4: ever heard, because I don't know how to solve America's
26:50
Speaker 4: racial problems. Frankly, you don't know how to solve America's
26:53
Speaker 4: racial problems. I don't think Justice Roberts knows how to
26:56
Speaker 4: solve America's racial problems. They're complex. Maybe affirmative action is good,
27:01
Speaker 4: maybe it's bad. You know, I'm not an expert on
27:03
Speaker 4: that kind of thing. I'm an expert on constitutional law.
27:06
Speaker 4: But the idea that simple statement captures all of the
27:09
Speaker 4: complexities is full of hubrits. His striking down as the
27:13
Speaker 4: voting writes that based on a principle that was completely
27:16
Speaker 4: inconsistent with a major Supreme Court presidence from nineteen sixty five, Again,
27:21
Speaker 4: a law passed by a unanimous Senate signed by a
27:24
Speaker 4: Republican president was full of hubris and his separation of
27:29
Speaker 4: powers decisions, and he is the person who normally writes them.
27:32
Speaker 4: Where he is telling the Congress, you're not allowed to
27:36
Speaker 4: limit the ways the president can fire the heads of
27:40
Speaker 4: independent agencies. Is overturning presents that go back to the
27:44
Speaker 4: New Deal and changing the way the American governmental system works.
27:50
Speaker 4: That's not what umpires do, and that's not what an
27:53
Speaker 4: institutionalist does. I don't think he's an institutionalist at all.
27:57
Speaker 4: I do think he's an incrementalist as a matter of strategy,
28:01
Speaker 4: not as a matter of substance.
28:03
Speaker 2: Another area where there seems to be a lot of
28:06
Speaker 2: activity lately and more changes to come is federal regulatory authority.
28:14
Speaker 2: Tell us a little of what's been happening there.
28:16
Speaker 4: So in November of twenty sixteen, after President Trump was
28:22
Speaker 4: elected the first time, I wrote an essay saying that
28:26
Speaker 4: he's going to appoint justices if he gets the opportunity
28:29
Speaker 4: to overturn Row because that was a campaign promise, But
28:32
Speaker 4: I don't think President Trump really cared about that. What
28:35
Speaker 4: I wrote was he wants to end the regulatory state,
28:38
Speaker 4: the administrative state, meaning most of the laws that govern
28:42
Speaker 4: American private conduct and companies, environmental regulations, food and drug regulations.
28:49
Speaker 4: They all come from the executive branch. Congress passes a
28:52
Speaker 4: very broad law saying pollution is bad. President, go fix it.
28:56
Speaker 4: Congress passes the law saying we want to have state food.
28:58
Speaker 4: Everybody wants state food. Executive branch, you go ahead and
29:01
Speaker 4: fix that. Well, Donald Trump's a businessman who doesn't like regulations.
29:05
Speaker 4: He appointed three justices who don't like regulations, and they
29:09
Speaker 4: are doing everything they can to make it harder for
29:11
Speaker 4: the executive branch to pass regulations such as environmental and
29:16
Speaker 4: food and drug laws. And it's very hard for Congress
29:19
Speaker 4: to do it because they don't want to politically take
29:22
Speaker 4: the hit. So it's not a surprise that this Supreme
29:24
Speaker 4: Court is trying to really go back to a nineteen
29:28
Speaker 4: thirty's pre New Deal understanding of federal power over the
29:33
Speaker 4: economy because these are people who believe, you know, in
29:37
Speaker 4: a totally free marketplace, not burdened by government regulation. And
29:42
Speaker 4: of course not just in the court, but this is
29:44
Speaker 4: filtering down all through the Trump administration. But the justices
29:48
Speaker 4: share that political goal, and that's what we're seeing.
29:52
Speaker 2: Roberts is the Chief Justice, but his vote is just
29:56
Speaker 2: one of nine votes, So how much power does he.
29:59
Speaker 4: We So, a very famous lower court judge, maybe the
30:04
Speaker 4: most famous lower court judge of our lifetimes, Judge Richard Posner,
30:08
Speaker 4: used to say that the Chief Justice really has no
30:11
Speaker 4: power except, you know, to decide who writes the opinion
30:14
Speaker 4: when he's in the majority, and maybe some administrative rules.
30:18
Speaker 4: So I have a theory about Chief Justice Roberts' vote
30:22
Speaker 4: in the Obamacare case, which is going to sound crazy
30:25
Speaker 4: to you and your listeners, which is that from two
30:28
Speaker 4: thousand and five, when Justice Roberts became the chief to
30:32
Speaker 4: twenty twelve, he had no power at all because Justice
30:35
Speaker 4: Kennedy held all the power. In that first term, Justice
30:39
Speaker 4: Kennedy was in the majority of one hundred percent of
30:41
Speaker 4: five vortises, and for the next seven years the Court
30:44
Speaker 4: went the way Justice Kennedy went. If you check the
30:47
Speaker 4: reporting in May of twenty twelve April of twenty twelve,
30:51
Speaker 4: before the Obamacare decision came out, you will see reporters saying,
30:56
Speaker 4: how Justice Kennedy goes, the Court will go. Supreme Court
30:59
Speaker 4: justice is a human being. They are people like us.
31:01
Speaker 4: Now they have better jobs than most of us, but
31:03
Speaker 4: they aren't like us. And you know, Chief Justice Roberts,
31:07
Speaker 4: I think, always wanted to be on the Supreme Court
31:09
Speaker 4: and always wanted to be Chief Justice. It was the
31:11
Speaker 4: fulfillment of his I'm not saying he thought he would
31:13
Speaker 4: ever get that, but you can't go any higher in
31:15
Speaker 4: the law than he went. And he had no power
31:18
Speaker 4: because Justice Kennedy had all the power. I think psychologically
31:22
Speaker 4: that was a factor in his decision in twenty twelve.
31:26
Speaker 4: So the story after twenty twelve became oh, Justice Roberts
31:30
Speaker 4: is a swing vote also wasn't really true. Today he
31:33
Speaker 4: has very very little power. He has to get either
31:37
Speaker 4: Justice Barrett or Justice Cavanaugh or Justice Gorsich to agree
31:40
Speaker 4: with him when he doesn't want to rule in a
31:43
Speaker 4: conservative fashion because he's never getting the Leado and Thomas
31:46
Speaker 4: to rule with him. So I would say he has
31:49
Speaker 4: no more power than Corsic, Kavanaugh, and Barrett. And I'm
31:53
Speaker 4: not even sure he's more power than Justice Barrett with
31:55
Speaker 4: the exception, and it's a big deal when he's in
31:58
Speaker 4: the majority he gets to a in the opinion, but
32:01
Speaker 4: other than that, his vote counts the same. And frankly,
32:05
Speaker 4: I think he was a little bit scarred in the
32:08
Speaker 4: first seven years on the bench when his vote counted
32:11
Speaker 4: much less than Justice Kennedy's vote.
32:14
Speaker 2: So how do you think he ranks as far as
32:18
Speaker 2: chief justices who've led the Court?
32:21
Speaker 4: Well, I think if our country gets back to some
32:24
Speaker 4: sense of normalcy eventually, I don't think we're living in
32:27
Speaker 4: normal times for better or for works. You know, I'm
32:29
Speaker 4: not going to be partizant about that, but we're living
32:31
Speaker 4: through times that are changing very quickly. But assuming we
32:34
Speaker 4: get back to some degree of stability in America, my
32:37
Speaker 4: guess is he's going to go down as one of
32:39
Speaker 4: the worst Chief Justices. And I say this for the
32:42
Speaker 4: following reason. History has shown that when the Supreme Court
32:48
Speaker 4: lurches far to the left or to the right, eventually
32:52
Speaker 4: the political system goes the other direction. So when the
32:55
Speaker 4: war in court went too far to the left, and
32:58
Speaker 4: I'm a liberal progressive who will say I think the
33:00
Speaker 4: war and Court went too far to the left, then
33:03
Speaker 4: Richard Nixon runs on a law and order campaign, run
33:06
Speaker 4: a Reagan runs on Roe versus Wade, you know, and
33:09
Speaker 4: Republicans hold power for most of that time period in
33:11
Speaker 4: the political sphere. This Supreme Court, I think, and I
33:15
Speaker 4: think political scientists think is far to the right of
33:19
Speaker 4: the median Republican voter, leaving a side of the median
33:23
Speaker 4: Democrat voter. So my guess is eventually there will be
33:26
Speaker 4: a cycle where the political system lurches in the other direction,
33:31
Speaker 4: and then we will see just how conservative his court
33:35
Speaker 4: has been. It has been very, very conservative, and there
33:39
Speaker 4: are even conservatives today, scholars, even from federalist society folks,
33:44
Speaker 4: who are saying things like this, this respect for precedent
33:50
Speaker 4: is not a conservative value. Right Conservatives like the status quo.
33:54
Speaker 4: Progressives want to change the status quote. The Roberts Court
33:58
Speaker 4: has been reversing important pre at I think a rate
34:02
Speaker 4: that's probably unheard of in American history. I'm not saying
34:05
Speaker 4: they're reversing more cases, but that doesn't matter, because the
34:09
Speaker 4: importance is are the reversing important cases? Guns, abortion, affirmative action,
34:16
Speaker 4: separation of church and state, separation of powers, and even federalism,
34:22
Speaker 4: which traditionally has been a very conservative value. Those areas
34:25
Speaker 4: of the law have been dramatically reshaped in two short decades.
34:31
Speaker 4: There's no definition of conservative that I know that suggests
34:35
Speaker 4: that judges should be the ones doing that.
34:37
Speaker 2: Thanks so much for joining me on the show.
34:39
Speaker 3: Eric.
34:39
Speaker 2: That's Eric Siegel, a professor of law at the Georgia
34:42
Speaker 2: State University. And that's it for this edition of the
34:45
Speaker 2: Bloomberg Law Show. Remember you can always get the latest
34:48
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35:03
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