Latest / Bloomberg Law / A Winning SCOTUS Term for Trump & Losing Term for LGBTQ Rights

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A Winning SCOTUS Term for Trump & Losing Term for LGBTQ Rights · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: Chief Justice John Roberts repeatedly stresses the importance of judicial independence.
0:14
Speaker 2: In an interview in May, he said, the judiciary is
0:17
Speaker 2: a coequal branch of government.
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Speaker 1: Its job is to.
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Speaker 2: Obviously decide cases, but in the course of that check
0:26
Speaker 2: the excesses of Congress or of the executive, and that
0:30
Speaker 2: does require degree of independence. However, in its recent term,
0:34
Speaker 2: it doesn't appear that the Supreme Court did much to
0:38
Speaker 2: check the excesses of the current executive. In fact, the
0:41
Speaker 2: clear winner of the term was President Donald Trump, as
0:45
Speaker 2: the Court sided with him on broad legal questions and
0:49
Speaker 2: emergency requests to let his policies take effect, from throwing
0:53
Speaker 2: transgender service members out of the military to opening hundreds
0:57
Speaker 2: of thousands of migrants to deportation. And for the second
1:01
Speaker 2: year in a row, the Court ended the term with
1:04
Speaker 2: a decision handing Trump a major victory by essentially eliminating
1:09
Speaker 2: the main tool courts have used to thwart his ambitious agenda,
1:14
Speaker 2: the nationwide injunction.
1:16
Speaker 1: This was a big one, wasn't it.
1:19
Speaker 2: This was a big decision, amazing decision, one that we're
1:23
Speaker 2: very happy about. Like almost all the high profile cases
1:27
Speaker 2: of the term, the Court divided six to three down
1:31
Speaker 2: ideological lines, with the conservatives of the majority and the
1:35
Speaker 2: liberals dissenting. Joining me is constitutional law expert Michael Dorf,
1:40
Speaker 2: a professor at Cornell Law School. Mike, the finale of
1:43
Speaker 2: the term, if you will, was the decision in the
1:46
Speaker 2: case over Trump's ban on automatic birthright citizenship, where the
1:51
Speaker 2: Conservatives stripped the lower courts of the power to grant
1:55
Speaker 2: nationwide injunctions, which have really been the only effective check
1:59
Speaker 2: on the Trump agenda. Trump thought the decision was important
2:03
Speaker 2: enough to call a press conference. How important do you
2:06
Speaker 2: think it is?
2:07
Speaker 1: That remains to be seen. The prohibition on most universal
2:12
Speaker 1: injunctions will have very serious bite if, but only if,
2:18
Speaker 1: the Court makes it difficult for plaintiffs to bring class
2:23
Speaker 1: actions and makes it difficult for states to sue for
2:28
Speaker 1: statewide injunctions. Those are two potential workarounds, neither of which
2:35
Speaker 1: the majority directly addressed is but both of which, just
2:40
Speaker 1: as Theleto and his concurrence suggests, should be only available
2:45
Speaker 1: under a heightened standard of sorts. So what remains to
2:49
Speaker 1: be seen is whether plaintiffs challenging these executive actions. Here
2:54
Speaker 1: it was the birthright Citizenship Order, but it applies to
2:58
Speaker 1: versally everything, whether they can quickly convert to class actions,
3:02
Speaker 1: whether states can bring these cases. If they can, then
3:05
Speaker 1: I think this ends up not being such a big deal.
3:07
Speaker 2: Getting class action status is a lot more complicated, and
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Speaker 2: I think, you know, we've seen just in the last
3:13
Speaker 2: few days how confusing it is for the lower courts
3:17
Speaker 2: to parse through this.
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Speaker 1: I think that's right. The Supreme Court could have, and
3:23
Speaker 1: in my view, should have given more guidance on whether
3:28
Speaker 1: class actions are available and under what standard. You know.
3:30
Speaker 1: One of the things I think is easily overlooked is
3:34
Speaker 1: the ruling in the case is not a constitutional holding.
3:39
Speaker 1: The court doesn't say that the Constitution forbids this kind
3:43
Speaker 1: of equitable relief. What it says is that this power
3:46
Speaker 1: was not conferred by statute on the federal courts. Well,
3:50
Speaker 1: if that's the case, it's possible that federal Rule of
3:53
Speaker 1: Civil Procedure twenty three, which is the class action provision,
3:57
Speaker 1: is empowered by the Rules Enabling Act that that does
4:01
Speaker 1: confer this power, and that would be fully consistent. It
4:04
Speaker 1: would just lead to, you know, the availability of similar
4:07
Speaker 1: relief under a different mechanism.
4:09
Speaker 2: Why is the Court allowing this rule to be applied
4:12
Speaker 2: retroactively because now President Trump says that the administration is
4:16
Speaker 2: going to move to lift holds that judges have placed
4:20
Speaker 2: on a number of his policies. He mentioned fights over
4:23
Speaker 2: refugee resettlement, federal spending, and sanctuary city. So you know,
4:27
Speaker 2: it's going to open up a can of worms.
4:30
Speaker 1: Oh, I think that's right. I mean, I think this
4:32
Speaker 1: is in some ways the basic problem with the Supreme
4:35
Speaker 1: Court these days, which is it's treating the Trump administration
4:40
Speaker 1: like a normal administration rather than one that is committed
4:44
Speaker 1: to sort of pushing the edge of the envelope and
4:47
Speaker 1: getting away with whatever it can. And so, you know,
4:50
Speaker 1: if you were thinking about the system as a whole
4:52
Speaker 1: and what's good for the rule of law, you would
4:55
Speaker 1: have been much clearer of your guidance and in what
4:58
Speaker 1: you're allowing and not allowing justice.
5:00
Speaker 2: Sonya Sotomayor, in one of her descents, said the Court
5:03
Speaker 2: was rewarding lawlessness because the Trump administration has repeatedly, either
5:08
Speaker 2: explicitly or not so explicitly, ignored court orders, particularly in
5:14
Speaker 2: the cases of immigration orders.
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Speaker 1: I mean, I think she is exactly right. That it's
5:19
Speaker 1: one thing to say, as the Court has said in
5:21
Speaker 1: some of these cases, well, we think the lower courts
5:23
Speaker 1: went too far in issuing this order. That doesn't mean
5:27
Speaker 1: that the administration was permitted to violate the order while
5:31
Speaker 1: it was in force. The normal rule is, if you
5:34
Speaker 1: don't like a court order, you appeal it, but unless
5:37
Speaker 1: you get a stay of that order, and until you
5:39
Speaker 1: get a stay of that order, you have to comply
5:41
Speaker 1: with it.
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Speaker 2: Often the Chief Justice is the one who writes the
5:46
Speaker 2: majority opinion in the biggest cases of the term. What
5:50
Speaker 2: do you think he chose the second most junior Justice,
5:54
Speaker 2: Amy Cony Barrett, to write this majority Well, I.
5:57
Speaker 1: Think there's a little bit of sort of doctrinal favoritism
6:02
Speaker 1: going on here. So the decision in Trump Vicasa relies
6:08
Speaker 1: on a precedent called Group of Mechicano, which was written
6:12
Speaker 1: by Justice Scalia, who was, of course the justice for
6:15
Speaker 1: whom Justice Barrett clerked, and she sort of sees herself
6:19
Speaker 1: in many ways as trying to carry out his legacy.
6:22
Speaker 1: So I think she was very much interested in applying
6:27
Speaker 1: Justice Scalia's view, which was that courts of equity have
6:31
Speaker 1: only the equity powers that they had in seventeen eighty
6:34
Speaker 1: nine of you, which, by the way, I think is
6:37
Speaker 1: somewhat far fetched, but that is the president, and so
6:40
Speaker 1: it sort of fell into her wheelhouse. It turns out
6:44
Speaker 1: it's a very important case, but I think it was
6:46
Speaker 1: given to her because it was seen as falling within
6:50
Speaker 1: her area of some special expertise and interest.
6:54
Speaker 2: Let's turn out to a decision that has implications for
6:57
Speaker 2: transgender youth in more than half the state. The Supreme Court,
7:02
Speaker 2: in another six to three decision down ideological lines, upheld
7:06
Speaker 2: Tennessee's ban on gender affirming care for transgender miners. Transgender
7:12
Speaker 2: advocates say the decision is devastating for LGBTQ youth and
7:17
Speaker 2: their families in the twenty seven states that have similar bands.
7:21
Speaker 2: Here's Kelly Robinson, the president of the Human Rights Campaign.
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Speaker 3: You're gonna have families. Families have been in states that
7:29
Speaker 3: they live in for generations. I know family has been
7:32
Speaker 3: in Arizona for generations and generations they are Arizonas. They're
7:35
Speaker 3: gonna have to leave their states just to get access
7:39
Speaker 3: to care for their kids.
7:41
Speaker 2: In Justice Sodo Mayor's dissent for the Liberals, she said
7:45
Speaker 2: this decision will open the door to more state discrimination
7:48
Speaker 2: against trans tenes and authorize, in her words, untold harm
7:54
Speaker 2: to these families. Mike, the issue here was whether the
7:57
Speaker 2: law violated the equal protection claw.
8:00
Speaker 1: Yeah, that's right. The underlying litigation raised a number of
8:03
Speaker 1: other questions, including whether this violated the bodily autonomy or
8:09
Speaker 1: substantial processed rights of the miners, the rights of parents
8:15
Speaker 1: to make medical decisions for their children. But as it
8:18
Speaker 1: came to the Supreme Court, the only issue was whether
8:21
Speaker 1: this was a violation of equal protection, and the Court,
8:25
Speaker 1: in a sense I wouldn't say duck that issue, but
8:28
Speaker 1: sort of mooted it by saying, well, there isn't a
8:32
Speaker 1: sex based classification or even a transgender identity based classification
8:37
Speaker 1: at issue here, though we don't have to apply the
8:42
Speaker 1: intermediate scrutiny that would normally apply to such laws, and
8:47
Speaker 1: therefore we all only have to say whether it's rational.
8:49
Speaker 1: And of course states get to make all sorts of
8:51
Speaker 1: medical judgments, and you subject those tor rational basis scrutiny,
8:54
Speaker 1: they're almost always going to survive. So in a sense,
8:58
Speaker 1: the case doesn't tell us that much about the status
9:04
Speaker 1: of discrimination on the basis of transgender status under the
9:08
Speaker 1: constitution going forward, because the Court said, well, we don't
9:11
Speaker 1: have to address that here, except that several justices in
9:15
Speaker 1: concurring opinions didn't address that and said, even if it
9:19
Speaker 1: is transgender based discrimination, that's okay because that kind of
9:25
Speaker 1: discrimination doesn't trigger any height and scrutiny. They didn't say
9:28
Speaker 1: that about sex. Last. What they said there was that
9:32
Speaker 1: it's not sex based discrimination. And in that sense, those
9:35
Speaker 1: concurring justices differed with respect to their constitutional analysis from
9:40
Speaker 1: what the Court said a number of years ago. As
9:43
Speaker 1: a matter of statutory interpretation in employment discrimination cases.
9:48
Speaker 2: I mean, the same drugs that Tennessee bans for the
9:53
Speaker 2: purpose of gender firming care for transitioning minors are allowed
9:57
Speaker 2: for a number of other purposes in non transminers. How
10:02
Speaker 2: do they get away from saying that's not an equal
10:04
Speaker 2: protection violation.
10:07
Speaker 1: So the plaintiffs and just the start of my ority descent,
10:10
Speaker 1: I think, are very clear. Look, if a boy wants
10:13
Speaker 1: to take this drug to give himself facial hair, you
10:17
Speaker 1: allow it. If a transgender boy who's assigned female at
10:22
Speaker 1: birth wants to take it, you disallow. It's the same effect.
10:25
Speaker 1: How could that be anything other than sex discrimination? And
10:29
Speaker 1: what the court says, is, well, it's not the same
10:33
Speaker 1: treatment if it's being prescribed for a different condition. In
10:39
Speaker 1: the boy who's taking this to give himself facial hair,
10:43
Speaker 1: it's being prescribed because he has low testosterone. In the
10:48
Speaker 1: transgender boy who's assigned female at birth, it's being given
10:52
Speaker 1: to facilitate sex transition, and that, of course, says, is
10:58
Speaker 1: a different treatment. Now they announce to something like, you know,
11:02
Speaker 1: different off label uses, so that something might be approved
11:06
Speaker 1: for as a treatment for hypertension, and people discover henus
11:10
Speaker 1: also can pure baldness mormally. If a drug is approved
11:15
Speaker 1: for one purpose, it can be prescribed off label, but
11:17
Speaker 1: states can forbid certain off label uses if they think
11:21
Speaker 1: the risks and benefits are different. So that's the analogy
11:25
Speaker 1: that the majority draws. The difficulty with that, as I
11:29
Speaker 1: think just the studlement are convincingly, says in dissentis well, here,
11:32
Speaker 1: what makes this a different treatment is simply the sex
11:36
Speaker 1: assigned birth of the person taking it, And you're sort
11:39
Speaker 1: of building the lily or double counting by working that in.
11:43
Speaker 2: So the three conservative justices you were referring to who
11:47
Speaker 2: wrote concurrences, would they reject intermediate scrutiny for any anti
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Speaker 2: trans laws.
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Speaker 1: I think that's right. I mean Justice Barrett actually is
11:57
Speaker 1: the one who writes most extensively on this, and she says, Look,
12:00
Speaker 1: we have criteria for deciding whether something is a suspect
12:05
Speaker 1: of semi susie classification, and transgender status doesn't meet those criteria. Now,
12:11
Speaker 1: I think she applies them a little bit strangely. One
12:13
Speaker 1: of the things she says is that in order for
12:15
Speaker 1: something to be so called immutable characteristic, it has to
12:18
Speaker 1: be identifiable at birth, and transgender status doesn't emerge until later. Well,
12:24
Speaker 1: that's a kind of backwards analysis, because of course, the
12:27
Speaker 1: whole point of someone wanting to transition to address their
12:32
Speaker 1: gender dyspharrior or other mismatch between their experience of themselves
12:36
Speaker 1: and the sex assigned at birth is that what they
12:40
Speaker 1: were treated as at birth was you know, not accurate,
12:45
Speaker 1: and so it's you know, it's a very odd, odd
12:48
Speaker 1: thing to say, Well, because when you were an infant
12:51
Speaker 1: you didn't realize or other people didn't realize, that you
12:55
Speaker 1: were a male inside of a female body, or vice versa,
12:58
Speaker 1: then that's not real in some sense. So there's a
13:01
Speaker 1: way in which it's a kind of, you know, denial
13:04
Speaker 1: of the existence of transgender persons at all. I mean,
13:07
Speaker 1: she doesn't say that, but I think that's the logical
13:10
Speaker 1: implication of that particular criterion.
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Speaker 2: Well, the court also allowed the Trump administration to oust
13:18
Speaker 2: transgender military on the emergency docket without even a full
13:22
Speaker 2: hearing on the merits. It seems like transgender rights are
13:27
Speaker 2: not in favor at the Court.
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Speaker 1: I think that's right now. Of first, we don't know
13:33
Speaker 1: what the basis for that decision was exactly, because it
13:37
Speaker 1: was on the emergency docket without explanation. We do know
13:42
Speaker 1: that there is traditionally greater difference shown to the political branches,
13:49
Speaker 1: both Congress and the executive with respect to military matters,
13:55
Speaker 1: and so it would be possible to say that gender
14:00
Speaker 1: status discrimination generally triggers intermediate scrutiny, but not with respect
14:07
Speaker 1: to who can be in the military. There were some
14:11
Speaker 1: cases in the nineteen nineties and early two thousands before
14:17
Speaker 1: the abandonment of the so called DNAs don't tell policy,
14:22
Speaker 1: in which courts upheld the ban on gays and lesbian
14:27
Speaker 1: serving openly in the military, even while saying they weren't
14:31
Speaker 1: deciding the broader question of what kind of scrutiny sexual
14:37
Speaker 1: orientation discrimination gets outside of the military context.
14:41
Speaker 2: Can we read anything into the Supreme Court throughout appellate
14:45
Speaker 2: rulings in favor of transgender people in clashes over healthcare
14:50
Speaker 2: and birth certificates in four states and ordered the judges
14:53
Speaker 2: to re examine the cases in the wake of this
14:55
Speaker 2: Scrimati decision. Do we read anything into that?
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Speaker 1: Oh? Yes, so I was probably to be a little
15:01
Speaker 1: bit hopeful there to say that, you know, as a
15:03
Speaker 1: matter of the official holdings, the Court has not or
15:08
Speaker 1: closed the possibility that sometime in the future it could
15:12
Speaker 1: say transgender status discrimination is sort of presumptively invalid in
15:17
Speaker 1: the same way that sex discrimination is. But reading the
15:22
Speaker 1: tea leaves, I think it's pretty clear that that's not
15:24
Speaker 1: the direction that this court is going. And another way
15:28
Speaker 1: to put that is that they are going to increasingly
15:32
Speaker 1: treat the boss Stock decision, which is the case that
15:35
Speaker 1: held that sexual orientation and transgender status discrimination or sex
15:40
Speaker 1: discrimination for purposes of Title seven. They're going to treat
15:43
Speaker 1: that decision as a kind of outlier, the case that
15:46
Speaker 1: gets distinguished, and they specifically say INSTAGRAMMETI. While we're not
15:51
Speaker 1: addressing this boss Stock analogy Title seven might be different.
15:54
Speaker 1: So I think they're teeing that up and so cutting back,
15:57
Speaker 1: you know, the anti trends back that we've been seeing
16:01
Speaker 1: in the political realm, I think is now flowering in
16:04
Speaker 1: the Supreme Court as well.
16:06
Speaker 2: Coming up next, we'll continue this discussion of the Supreme
16:09
Speaker 2: Court's term. The Court once again bolsters religious rights. I'm
16:14
Speaker 2: June Gross. When you're listening to Bloomberg, I've been talking
16:17
Speaker 2: with constitutional law professor Michael Dorf of Cornell Law School.
16:21
Speaker 2: I got the Supreme Court's term. There was another case
16:25
Speaker 2: involving LGBTQ rights, and in a six to three ruling,
16:30
Speaker 2: once again with the conservative justices in the majority and
16:33
Speaker 2: the liberal justices in the minority, the Court rule that
16:37
Speaker 2: public school parents have a right to opt out of
16:41
Speaker 2: classroom lessons that intrude on their religious beliefs, and in
16:46
Speaker 2: this case it was because the lessons involved the reading
16:50
Speaker 2: of LGBTQ themed story books. Religion versus issues involving LGBTQ rights,
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Speaker 2: Religion always wins Roberts Court.
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Speaker 1: Yeah, that's right. I mean, you can think of this
17:03
Speaker 1: as sort of the finale, for now of a trilogy
17:07
Speaker 1: that began with the Masterpiece cake shop case continued with
17:11
Speaker 1: the three or three creative case, and now here we
17:14
Speaker 1: have a similar situation where the religious claim wins out
17:20
Speaker 1: as against the effort to in this case have an
17:24
Speaker 1: LGBTQ plus inclusive curriculum. To my mind, what's so sort
17:32
Speaker 1: of surprising about this case is how quickly and easily
17:37
Speaker 1: the court dismisses the administrative burden that it's placing on
17:44
Speaker 1: school districts. Right what the court says is, if there
17:48
Speaker 1: is a burden on religion, then the government school district
17:55
Speaker 1: has to give an exemption unless it can satisfy high scrutiny.
18:01
Speaker 1: And the burden on religion here is, as the descend
18:05
Speaker 1: points out, that kids are being exposed to ideas that
18:10
Speaker 1: are contrary to what their parents want to teach them
18:15
Speaker 1: as a matter of religious faith. And if you just
18:17
Speaker 1: think about that for a moment, you quickly realize, well,
18:20
Speaker 1: that could cover a lot of things. You know, there
18:22
Speaker 1: are great many people in this country who, as a
18:25
Speaker 1: matter of religious faith, don't believe that humans descended from
18:29
Speaker 1: other animals through revolution. Does that mean that religious parents
18:34
Speaker 1: can opt their kids out of biology? People believe in
18:39
Speaker 1: the millions that the earth is only six thousand years old,
18:43
Speaker 1: even though you know geology suggests that it's four and
18:47
Speaker 1: a half billion years old. Can parents op their kids
18:49
Speaker 1: out of geology? I think those issues are probably unlikely
18:54
Speaker 1: to arise in large numbers, But the real impact will
18:58
Speaker 1: be to these concerned efforts to have parents object to
19:03
Speaker 1: what they see as you woke curricula on religious grounds,
19:09
Speaker 1: and because the administrative burden is so great, the school
19:12
Speaker 1: district might conclude, well, you know what, it's just easier
19:16
Speaker 1: not to teach this stuff at all. And that is
19:19
Speaker 1: the point that the descent makes, I think very effectively.
19:22
Speaker 2: You mentioned the trilogy of cases, and this reminds me
19:26
Speaker 2: of the three to h three Creative case, which involved
19:30
Speaker 2: a website designer who didn't want to design websites for
19:36
Speaker 2: gay marriages. However, she'd never been asked to. And here
19:41
Speaker 2: you have a case where the curriculum for using these
19:44
Speaker 2: LGBTQ books isn't even established yet it seems like the
19:49
Speaker 2: court is just jumping in before there's a real controversy.
19:54
Speaker 1: I think a fair criticism of the court would be
19:57
Speaker 1: that in these cases where there are a religious objections
20:03
Speaker 1: to a rights, trans rights, etc. That are statutory the
20:08
Speaker 1: Court's standing rules seem to be flexible. You know, you
20:13
Speaker 1: can make a case that there is standing both in
20:16
Speaker 1: three H three creative and here. But again, some of
20:20
Speaker 1: the same justices who might be sticklers in other contexts
20:24
Speaker 1: in this context tend to say, well, of course you
20:27
Speaker 1: can challenge this policy, and the Court.
20:29
Speaker 2: Is not stepping away from these issues. Next term, it's
20:33
Speaker 2: going to hear a challenge to Colorado's ban on conversion therapy,
20:38
Speaker 2: and the challenge is from a licensed counselor who says
20:42
Speaker 2: she views her work as an outgrowth of her Christian faith.
20:46
Speaker 2: So I think we're going to see the same result
20:49
Speaker 2: in that case.
20:49
Speaker 4: Maybe I'm jumping the gun, but you no, I don't
20:52
Speaker 4: think you are.
20:53
Speaker 1: And you know, if you want to sort of juxtapose
20:55
Speaker 1: that with Scrimetti, Right, So, in Scrimmetti, the court is
20:58
Speaker 1: all about giving deference to Tennessee's ostensibly medical determination that
21:07
Speaker 1: it's not in the interests of miners and they're not
21:12
Speaker 1: sort of fully able to give and form consent to
21:15
Speaker 1: have puberty blockers and hormone therapy. Right. I don't think
21:20
Speaker 1: you'll see the same kind of deference given to Colorado
21:23
Speaker 1: in its judgment that this kind of therapy is not
21:30
Speaker 1: in the interests of miners.
21:33
Speaker 2: There were three Second Amendment cases, and the justices upheld
21:37
Speaker 2: federal regulations for build at home ghost gun kits, refuse
21:41
Speaker 2: to give gun manufacturers broad immunity from civil suits, and
21:46
Speaker 2: turned away constitutional challenges to state bans on assault weapons
21:51
Speaker 2: and high capacity magazines. Does this signal that the court
21:56
Speaker 2: won't eviscerate gun control measures or is it too soon
22:00
Speaker 2: to tell?
22:01
Speaker 1: I think it's a little of both. The Vanderstock case,
22:04
Speaker 1: that's the ghost guns case there, the statute is pretty specific,
22:09
Speaker 1: and you look at that versus the bump stock case
22:12
Speaker 1: that they had where they came out the other way.
22:15
Speaker 1: You can just see those as a statutory construction. You know.
22:19
Speaker 1: The same thing goes for Smith and Weston. I mean,
22:22
Speaker 1: after all, Mexico did lose that case, so they're unable
22:26
Speaker 1: to bring the lawsuits. I don't count that one as
22:28
Speaker 1: a sort of pure victory for gun regulation. And then Henson,
22:33
Speaker 1: which is the case where they denied Zert from the
22:38
Speaker 1: District of Columbia. Curt denial doesn't set a precedent, and
22:44
Speaker 1: you can make an argument I think that I think
22:47
Speaker 1: they're the case involved a limit of ten rounds on
22:50
Speaker 1: a gun. You can make an argument that the gun
22:53
Speaker 1: that is in common use, that's the term for Second
22:55
Speaker 1: Amendment purposes, is the handgun. And then you ask, when,
23:00
Speaker 1: how is it consistent with the history of regulation of
23:04
Speaker 1: guns to limit them to ten rounds. Well, you're not
23:08
Speaker 1: going to find guns that were capable of firing more
23:11
Speaker 1: than ten rounds at the founding, So there's a way
23:13
Speaker 1: to get to this result. But I think it's consistent
23:16
Speaker 1: with what they've said before, and I think it's far
23:19
Speaker 1: too soon to say that the Court is sort of
23:22
Speaker 1: easing up on the Second Amendment revolution that it began
23:27
Speaker 1: in two thousand and eight with the Heller case.
23:29
Speaker 2: Okay, stay with me, Mike. Coming up next on the
23:32
Speaker 2: Bloomberg Law Show, I'll continue this conversation with Professor Michael
23:36
Speaker 2: Dorf of Cornell Law School. We're going to take a
23:38
Speaker 2: look at the Court's emergency docket and how the justices
23:42
Speaker 2: gave Trump some or all of what he asked for.
23:46
Speaker 2: I'm June Grosso and you're listening to Bloomberg. The clear
23:49
Speaker 2: winner of the Supreme Court's term was President Donald Trump.
23:54
Speaker 2: The Court's conservative super majority sided with Trump on both
23:58
Speaker 2: broad legal quests and an unprecedented barrage of emergency requests
24:04
Speaker 2: to let his policies take effect right away. On the
24:08
Speaker 2: emergency docket, the court allowed Trump to discharge transgender people
24:13
Speaker 2: from the military, fire top officials at government agencies, and
24:17
Speaker 2: open hundreds of thousands of migrants to deportation. The conservative
24:22
Speaker 2: justice is repeatedly reinstated Trump policies found by lower courts
24:27
Speaker 2: to be illegal, and it undercut judges who said the
24:31
Speaker 2: administration had violated their orders. I've been talking to Professor
24:35
Speaker 2: Michael Dorf of Cornell Law School. How do you read
24:39
Speaker 2: his wins on the emergency docket?
24:42
Speaker 1: So I guess i'd say a few things. First. One
24:46
Speaker 1: of the things we didn't talk about when we're about
24:47
Speaker 1: Trump against KASA is Justice Kavanaugh's concurrence, in which he says, well,
24:52
Speaker 1: the solution to the problem of universal injunctions is for
24:57
Speaker 1: us to get these cases up here fast and then
25:00
Speaker 1: for us to decide them, because we can lay down
25:03
Speaker 1: the law that will be binding nationally. Well, one of
25:08
Speaker 1: the odd things is, if that's true, how come they're
25:11
Speaker 1: not doing that that in a lot of these cases,
25:13
Speaker 1: they're not actually saying, well, here's the rule and we're
25:17
Speaker 1: deciding on the emergency docket. They're just sort of, you know,
25:20
Speaker 1: reversing the lower courts, giving either no guidance or very
25:24
Speaker 1: scant guide, you know. And that's to say nothing of
25:27
Speaker 1: whether Justice Kavanaugh's proposed solution makes any sense, given that,
25:32
Speaker 1: you know, putting something on the emergency docket means they
25:34
Speaker 1: don't really have that much time to decide the case,
25:37
Speaker 1: and they don't have full briefing with full oral argument.
25:41
Speaker 1: So you had this remarkable decision where they essentially overrule
25:45
Speaker 1: the Humphreys Executor case, which is, you know, a very
25:50
Speaker 1: old precedent banding for the proposition that Congress can create
25:54
Speaker 1: independent agencies. And you know, Justice Kagan in the sense says,
25:58
Speaker 1: what are you doing. You don't even you barely even
26:00
Speaker 1: mentioned the case, and you're off ruling it. And we
26:04
Speaker 1: haven't had a full briefing in argument on this, and
26:06
Speaker 1: you're reversing the lower court for following our established president,
26:10
Speaker 1: which we've told them they're supposed to do. So, you know,
26:13
Speaker 1: the one remarkable thing about what they're doing on the
26:16
Speaker 1: emergency donket is tympally. You know, how much law they're making.
26:20
Speaker 1: And now that's not an entirely new phenomenon. They did
26:23
Speaker 1: that in a bunch of religion cases during the pandemic,
26:26
Speaker 1: and they continued it to do that, but it is
26:29
Speaker 1: it is a very strange thing for them to be doing.
26:32
Speaker 1: It is striking how different a position the Court is
26:38
Speaker 1: staking out from that of the lower court. One of
26:41
Speaker 1: the interesting phenomena in this court this year is, if
26:45
Speaker 1: you look at the statistics on their plenary docket, they
26:49
Speaker 1: reversed the Fifth Circuit, which is the most conservative circuit
26:53
Speaker 1: quite a lot. Right, So the Fifth Circuit is getting
26:55
Speaker 1: a haw to head of the Supreme Court sort of
26:57
Speaker 1: in being very very conservative on their emergency docket. In
27:02
Speaker 1: these cases challenging comp administration actions, the Court is basically saying, well,
27:09
Speaker 1: the lower courts are too liberal. Now. Part of that,
27:11
Speaker 1: I think is forum shopping by funny tips, Right, if
27:14
Speaker 1: you're going to challenge your comp administration policy, you're not
27:17
Speaker 1: going to go to Judge Kasmiric or one of the
27:19
Speaker 1: other judges that Republicans go to to challenge democratic administrations.
27:24
Speaker 1: But I think it will also suggests again that this
27:29
Speaker 1: Court is, you know, not all that skeptical of a
27:33
Speaker 1: lot of what the Trump administration is doing on the merits.
27:37
Speaker 2: Yeah, the Fifth Circuit has become what the Ninth Circuit was,
27:40
Speaker 2: maybe even more so. In conclusion, how far to the
27:45
Speaker 2: right is the court moving?
27:48
Speaker 1: I mean, I think the answer to that question is
27:49
Speaker 1: very far. I don't think there's any question about that.
27:52
Speaker 1: I mean, you know, they did most of the work
27:54
Speaker 1: in prior terms. They overturn Roe v. Wade, they got
27:56
Speaker 1: rid of the permantive action, the religion cases go very far.
27:59
Speaker 1: They invigorated the Second Amendment. So in that sense, their
28:02
Speaker 1: work is basically done on what traditional conservatives care about.
28:09
Speaker 1: To my mind, the question that is most pressing and
28:14
Speaker 1: sort of remains open is not how far to the
28:17
Speaker 1: right the Court is moving the law, but how far
28:21
Speaker 1: to the sort of maga direction is the court moving
28:25
Speaker 1: the law or at least allowing the Trump administration to go.
28:30
Speaker 1: You know, a lot of what President Trump and his
28:32
Speaker 1: administration are doing doesn't fall within traditional left right boundaries.
28:39
Speaker 1: It's just sort of you know, authoritarian, you know, for
28:42
Speaker 1: lack of a better term.
28:44
Speaker 5: And so it's not surprising to me that, you know,
28:48
Speaker 5: if the Trump administration you know, wants to peel back
28:53
Speaker 5: transgender rights.
28:54
Speaker 1: That conservatives on the Supreme Court would be on board
28:58
Speaker 1: with that. What is surprising and I think frankly alarming,
29:03
Speaker 1: is the extent to which the Roberts Court is facilitating
29:08
Speaker 1: the Trump administration's challenges to the rule of law. So
29:12
Speaker 1: what we were talking about a little earlier with defiance
29:14
Speaker 1: of court orders and other things that fall outside the
29:19
Speaker 1: left right spectrum as we've understood it for the last
29:23
Speaker 1: one hundred years or so, and are on a sort
29:26
Speaker 1: of democracy and rule of law on the one hand
29:29
Speaker 1: versus authoritarianism on the other.
29:31
Speaker 2: And over the summer we'll have to keep a close
29:33
Speaker 2: eye on the emergency docket, which I'm sure is going
29:36
Speaker 2: to be very active. Thanks so much, Michael for your
29:40
Speaker 2: analysis and spending all this time with me. That's Professor
29:43
Speaker 2: Michael Dwarf of Cornell Law School. In other legal news today,
29:48
Speaker 2: the jury in Sean Diddycombe's sex trafficking trial has said
29:52
Speaker 2: that it reached a verdict on four of the five
29:55
Speaker 2: counts against the hip hop mogul, but could not reach
29:58
Speaker 2: a verdict on the top count of racketeering conspiracy. The
30:02
Speaker 2: jurors said in a note this afternoon that it was
30:05
Speaker 2: unable to reach a unanimous verdict on the racketeering conspiracy
30:10
Speaker 2: charge because there were jurors with quote, unpersuadable views on
30:14
Speaker 2: both sides. Joining me to discuss what may be happening
30:18
Speaker 2: with the jury is former federal prosecutor Robert Mintz, a
30:22
Speaker 2: partner Macarter in English. So, Bob, what do you think
30:25
Speaker 2: it means that the jurors couldn't reach a unanimous decision
30:29
Speaker 2: on the top count.
30:31
Speaker 4: It's not surprising that this has been the most difficult
30:35
Speaker 4: charge for the jurors to reach an unanimous verdict on.
30:38
Speaker 4: The racketeering charge was always the most challenging for prosecutors.
30:43
Speaker 4: It requires proof of at least one other person acting
30:48
Speaker 4: in conspiracy with mister Colmbs to commit two crimes or
30:52
Speaker 4: predicate acts in furtherance of a racketeering enterprise. So it's
30:57
Speaker 4: a very complex charge. It's also the most serious charge.
31:02
Speaker 4: So it's going to be interesting to see what they
31:04
Speaker 4: ultimately do with the charge, whether they are able to
31:06
Speaker 4: reach a verdict or whether ultimately they are hung, which
31:10
Speaker 4: means they could not get unanimity among jurors on that
31:13
Speaker 4: particular charge.
31:14
Speaker 2: Yeah, Rather than taking a partial verdict, the judge told
31:17
Speaker 2: the jury to continue weighing the remaining charge and deliberations
31:22
Speaker 2: are going to continue. Does it seem to you like
31:25
Speaker 2: they've reached guilty verdicts on each of the lesser charges.
31:30
Speaker 4: Well, it's always difficult when you have news from the
31:33
Speaker 4: jury that they've reached a verdict or a partial verdict
31:36
Speaker 4: in terms of reading the tea leaves and trying to
31:38
Speaker 4: figure out what it means. Here we have a note
31:41
Speaker 4: from the jurors saying they've reached a unanimous verdict on
31:44
Speaker 4: four out of the five, and that they are hung
31:46
Speaker 4: or unable to reach a verdict on the most difficult charge.
31:50
Speaker 4: It would suggest that perhaps they have returned a guilty verdict.
31:54
Speaker 4: That would be probably what most prosecutors would read into
31:59
Speaker 4: that decision, but we won't know until the verdict is
32:01
Speaker 4: actually read an open court.
32:03
Speaker 2: It appears that the defense thinks that the jury has
32:06
Speaker 2: reached guilty verdicts on the other counts. Because Combs appeared.
32:11
Speaker 2: Moreau says his lawyers explained to him what was happening,
32:15
Speaker 2: and Bob explain where the judge is coming from in
32:19
Speaker 2: ordering the jurors to resume deliberations.
32:22
Speaker 4: Well, what we have here is a trial that wan
32:24
Speaker 4: for seven weeks and only two days of jury deliberation.
32:27
Speaker 4: So what a judge will typically do, and what the
32:29
Speaker 4: judge in this case has done, is given them what's
32:32
Speaker 4: called a modified Alan charge. Basically, it tells jurors that
32:36
Speaker 4: they should simply go back and continue to deliberate and
32:40
Speaker 4: try to reach the unanimous verdict. It's not that uncommon
32:44
Speaker 4: for jurors to send notes to the judges to say
32:46
Speaker 4: that they can't reach unanimity on some or all of
32:49
Speaker 4: the charges, and then the judge urges them to continue
32:52
Speaker 4: to deliberate, and sometimes they're able to break through whatever
32:56
Speaker 4: barriers they have in reaching unanimity. Sometimes they are unable
32:59
Speaker 4: to reach an anonymous verdict. But typically after only two
33:03
Speaker 4: days of deliberations in a trial that lasted seven weeks
33:08
Speaker 4: and where they heard over thirty witnesses, it's something that
33:11
Speaker 4: a judge is going to ask yours to spend more
33:13
Speaker 4: time trying to reach a complete verdict, because both the
33:16
Speaker 4: prosecution on the defense would prefer that there is a
33:20
Speaker 4: verdict as to all of the charges here.
33:22
Speaker 2: And so tomorrow we'll see if that modified allen or
33:26
Speaker 2: Dynamite charge helps the jurors to reach a unanimous decision
33:30
Speaker 2: on that top count. Thanks so much, Bob. That's Robert
33:34
Speaker 2: Mints of McCarter and English. Combs could face fifteen years
33:39
Speaker 2: in prison to life behind bars if he's convicted on
33:42
Speaker 2: all charges. And that's it for this edition of The
33:45
Speaker 2: Bloomberg Law Show. Remember you can always get the latest
33:48
Speaker 2: legal news on our Bloomberg Law Podcast. You can find
33:51
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33:59
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34:03
Speaker 2: Wall Street Time. I'm June Grosso and you're listening to
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