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Preview of Supreme Court 2026-2027 Term · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio. Honorable,
0:20
Speaker 1: the Chief Justice and the Associate Justices of the Supreme
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Speaker 1: Court of the United States.
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Speaker 2: Oh, yay.
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Speaker 1: Oh, yay.
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Speaker 2: Oh, yay.
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Speaker 1: When the gavel bangs down on Monday, the first Monday
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Speaker 1: in October, the Supreme Court will begin its new term.
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Speaker 1: The justices will consider cases that deal with hot-button social issues,
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Speaker 1: from gun rights to parental rights, and from climate change
0:46
Speaker 1: to asylum. They'll also consider cases that deal with fundamental
0:50
Speaker 1: legal issues. Can you have a six-person jury under the
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Speaker 1: Sixth Amendment? And just what is an excessive fine under
0:58
Speaker 1: the Eighth Amendment? The facts in some of the cases
1:01
Speaker 1: are quirky, like the case of the Alaskan pilot, a
1:05
Speaker 1: six-pack of beer, and the Constitution. The facts in other
1:09
Speaker 1: cases are sobering. Undocumented immigrants being deported to countries they
1:14
Speaker 1: have no connection with. My guest is former U.S. Solicitor
1:18
Speaker 1: General Gregory Garr, a partner at Latham & Watkins. Greg,
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Speaker 1: the first case on Monday is one with far-reaching implications,
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Speaker 1: and billions of dollars are at stake as Colorado tries
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Speaker 1: to hold the oil industry accountable for climate change.
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Speaker 3: Yeah, so this is a really big case.
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Speaker 2: The question is whether a city can hold oil companies
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Speaker 2: responsible under state nuisance law for billions of dollars in
1:44
Speaker 2: property damage allegedly caused by global climate change. So in 2018,
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Speaker 2: the city of Boulder, Colorado, sued Suncor Energy and ExxonMobil
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Speaker 2: and Colorado State Court, alleging that the company's manufacture, sale,
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Speaker 2: and distribution of fossil fuels have contributed to global climate change,
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Speaker 2: which in turn has resulted in forest fires and the
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Speaker 2: like in the Boulder area, which the city alleges violates
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Speaker 2: public nuisance.
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Speaker 3: Doctrine and other state tort laws.
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Speaker 2: So the defendant oil companies moved to dismiss this on
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Speaker 2: a host of grounds, including that the city's claims were
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Speaker 2: preempted by the United States Constitution and the federal Clean
2:24
Speaker 2: Air Act. The Colorado courts rejected that preemption argument and
2:28
Speaker 2: the U.S. Supreme Court granted review. And there are really
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Speaker 2: two issues before the court. The first is whether the U.S.
2:35
Speaker 2: Supreme Court has jurisdiction to hear the case at all.
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Speaker 2: And the second is whether the Colorado Supreme Court was
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Speaker 2: right that there's no federal preemption defense. The jurisdictional argument
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Speaker 2: is based on the fact that the Supreme Court ordinarily
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Speaker 2: can only hear final judgments issued by state Supreme Courts.
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Speaker 2: And here, the Colorado Supreme Court just decided the availability
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Speaker 2: of one defense, the preemption defense. So lots of litigation remains.
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Speaker 2: And then on the merits that the courts get there,
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Speaker 2: the defendants say that allowing Boulder's claims to proceed would
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Speaker 2: mean that any city in America could saddle oil companies
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Speaker 2: with crippling liability for an inherently global phenomenon.
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Speaker 3: Climate change.
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Speaker 2: And defendants say that this would violate the structure of
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Speaker 2: the Constitution, under which they say federal law, and only
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Speaker 2: federal law, governs the regulation of this sort of national
3:24
Speaker 2: or global phenomenon, like the way that air combines with
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Speaker 2: the climate to create climate change. Defendants also claim that
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Speaker 2: the city's claims are actually preempted by the Clean Air Act,
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Speaker 2: arguing that the act displays state efforts to regulate emissions
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Speaker 2: through litigation and And the city in turn argues that
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Speaker 2: the defendants really haven't pointed to anything specific in the
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Speaker 2: Constitution or the specific statute. And so therefore, they haven't
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Speaker 2: shown that the state claims are preempted in any specific
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Speaker 2: way by federal law.
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Speaker 1: Do you think we'll see a familiar lineup of justices
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Speaker 1: down ideological lines?
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Speaker 2: I think what's really interesting about this case is that
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Speaker 2: the usual roles of conservative and liberal justices may be flipped.
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Speaker 2: Here it may be the conservatives who are drawing principles
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Speaker 2: from the penumbras and emanations of constitutional provisions, while liberal
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Speaker 2: justices may insist on following the text of the Constitution
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Speaker 2: and statutes, or lack thereof here. And the case got
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Speaker 2: a lot more interesting earlier this week when Justice Alito
4:24
Speaker 2: announced that he was recusing himself. And so that creates
4:27
Speaker 2: an eight-justice court, meaning that Boulder likely just has to
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Speaker 2: pick up one conservative vote on either jurisdiction or the
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Speaker 2: merits to get a win by way of a 4-4 tie.
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Speaker 3: So this is definitely an interesting case to watch.
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Speaker 1: Tell us more about the jurisdictional argument, which obviously could
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Speaker 1: stop the case in its tracks.
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Speaker 2: Well, so Colorado says that there's no jurisdiction because there
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Speaker 2: was no final judgment by the state Supreme Court. It
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Speaker 2: was like a purely interlocutory proceeding over one issue. And
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Speaker 2: what the oil companies claim is that, well, if you
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Speaker 2: look at the U.S. Supreme Court precedent, They have found
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Speaker 2: exceptions where there's sort of a special proceeding before a
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Speaker 2: state Supreme Court involving the resolution of a federal issue,
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Speaker 2: and that that exception applies to this situation.
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Speaker 3: So the U.S.
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Speaker 2: Supreme Court actually can go ahead and decide the case.
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Speaker 3: And the merits.
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Speaker 2: But there's no question that the jurisdictional issue here is tricky,
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Speaker 2: and it provides an off-ramp for the court if it
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Speaker 2: decides it doesn't want to wade into the.
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Speaker 3: Case on the merits.
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Speaker 1: It's been said that this will determine the fate of
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Speaker 1: dozens of climate-related lawsuits by state and local governments against
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Speaker 1: fossil fuel companies, which could cost the companies billions of dollars.
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Speaker 2: Yeah, I think that's right. And that's probably the reason
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Speaker 2: why the court agreed to hear the case. There are
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Speaker 2: scores of cases like this brought by other cities and
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Speaker 2: municipalities seeking to hold the oil companies liable in connection
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Speaker 2: with global climate change. And so if the Supreme Court
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Speaker 2: holds that state law, state nuisance actions is actually displaced
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Speaker 2: by the Constitution or the Clean Air Act, then we'll
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Speaker 2: be back essentially to Congress and federal law in terms
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Speaker 2: of the regulation of these emissions.
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Speaker 1: Would you say that energy and trade groups have had
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Speaker 1: a good record before the court?
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Speaker 2: I think they've had a good record before the court. Now,
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Speaker 2: they've been trying to get these cases out of state
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Speaker 2: court into federal court, and they haven't always succeeded in that.
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Speaker 2: And that's why this case comes from the state court.
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Speaker 2: But the Supreme Court has been challenging on preemption issues
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Speaker 2: for businesses. There was a big win last term in
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Speaker 2: the Monsanto case. But generally speaking, the more conservative justices
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Speaker 2: more recently have been skeptical of preempting state law. And
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Speaker 2: so the oil companies here might face some headwinds on that.
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Speaker 2: But I think the concern would be that if you
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Speaker 2: could have a single city in America that basically could
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Speaker 2: saddle oil companies with crippling liability.
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Speaker 3: For a global phenomenon where it.
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Speaker 2: Would be, you know, extremely difficult to show that any
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Speaker 2: particular emissions resulted in any particular damage in a particular municipality.
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Speaker 3: So, you know, I think the.
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Speaker 2: Theory of liability is really sweeping and is one that's
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Speaker 2: probably going to trouble, you know, really all the justices,
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Speaker 2: although they might come to different conclusions in terms of
7:18
Speaker 2: how the case.
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Speaker 3: Should be resolved.
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Speaker 1: But do you think that it would likely result in
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Speaker 1: a liberal conservative split?
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Speaker 2: You know, I think that that's likely in this case.
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Speaker 2: And I think that the more liberal justices are going
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Speaker 2: to be extremely reluctant to find that these actions are preempted.
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Speaker 2: But I also think that the arguments are going to
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Speaker 2: be ones that, you know, could give some of the conservative.
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Speaker 3: Justices some pause.
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Speaker 2: And that's why the fact that you've got this eight
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Speaker 2: justice court with Justice Alito recused makes the case so
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Speaker 2: interesting because The city here may only have to pick
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Speaker 2: off one of the conservative justices, and that makes it
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Speaker 2: a whole heck of a lot easier for them than
7:58
Speaker 2: having to pick off two of the conservative justices to
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Speaker 2: get to a 4-4 split.
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Speaker 1: And if there's a 4-4 split, the Colorado Supreme Court
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Speaker 1: decision stays in place, and so the case goes forward
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Speaker 1: without setting a nationwide precedent. Now, the court will be
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Speaker 1: considering a few cases that concern religious rights. And the
8:18
Speaker 1: first one they'll be hearing on November 3rd concerns a
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Speaker 1: fight between St. Mary Catholic Parish and the state of Colorado.
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Speaker 3: So the St.
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Speaker 2: Mary's case checks two boxes for the current court. One,
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Speaker 2: it involves a claim of religious discrimination. And two, it's
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Speaker 2: directed against Colorado officials who have not fared well before
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Speaker 2: the court in First Amendment cases. And so this case
8:41
Speaker 2: arises because Colorado passed a universal preschool program making funding
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Speaker 2: available to families to send their children to a public
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Speaker 2: or private preschool of the family's choice, including a private
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Speaker 2: school that would provide a religious education. But while the
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Speaker 2: program is open to all, Colorado requires participating schools to
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Speaker 2: agree to a non-discrimination mandate that prohibits the exclusion of
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Speaker 2: students on the basis of religion, sexual orientation, or other factors.
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Speaker 2: In this case, the Catholic parishes, preschools, and parents agreed
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Speaker 2: sued the state claiming that the program's non-discrimination requirement violated
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Speaker 2: their First Amendment and religious rights because it would require
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Speaker 2: them to violate the Catholic Church's teachings on same-sex marriage
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Speaker 2: and gender and the like. And in particular, they alleged
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Speaker 2: that even though the non-discrimination requirement is categorical on its face, Colorado,
9:34
Speaker 2: in fact, has granted exemptions to schools that serve only
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Speaker 2: particular groups, including families from the LGBTQ community. while refusing
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Speaker 2: similar exemptions to religious schools. And in a case called
9:46
Speaker 2: Employment Division v. Smith, the Supreme Court held decades ago
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Speaker 2: that a neutral and generally applicable rule need not give
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Speaker 2: way to religious exemptions, but several justices on the court
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Speaker 2: have criticized the Smith case. and this case will test
10:01
Speaker 2: the application of that principle. And here the challengers argue
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Speaker 2: that the Smith principle should at least give way where
10:07
Speaker 2: a state has granted exemptions to a law that is
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Speaker 2: generally applicable on its face. Religion is really an area
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Speaker 2: where the conservative justices have flexed their muscles on the court,
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Speaker 2: So the real question in this case may be how
10:19
Speaker 2: far the court decides to go.
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Speaker 1: So how much would the case from 2022, Carson v. Macon,
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Speaker 1: where the court ruled 6-3 that Maine's exclusion of religious
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Speaker 1: private schools from its public tuition assistance program violates the
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Speaker 1: First Amendment, I mean, how much does that play in here?
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Speaker 3: Well, both sides talk about the Macon case differently.
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Speaker 2: But here, the Colorado program allows funding to private schools
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Speaker 2: that wish to teach a religious education. So the problem
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Speaker 2: isn't the exclusion of religious schools from the funding program.
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Speaker 2: The problem is, the challengers would say, the haphazard enforcement
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Speaker 2: of the non-discrimination principle, which, the way they see it,
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Speaker 2: allows for exemptions with respect to some schools that want
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Speaker 2: to have a tight community. but wouldn't allow for an
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Speaker 2: exemption to a religious school that wanted to pursue its
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Speaker 2: teaching and exclude people with certain beliefs. And they say
11:20
Speaker 2: that that has a sort of unique kind of discriminatory
11:23
Speaker 2: effect on religion. And in prior cases where the Supreme
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Speaker 2: Court has seen situations in which it has concluded that
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Speaker 2: religion is really being singled out and discriminated against, this
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Speaker 2: court has acted very strongly against that.
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Speaker 1: I feel like if religion is a factor at the
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Speaker 1: court these days, religion wins. And I count five conservative
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Speaker 1: justices that have explicitly or implicitly called for overturning Smith.
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Speaker 3: You're right.
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Speaker 2: The plaintiffs in religious cases have had quite a run
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Speaker 2: at the Supreme Court. And so I think, you know,
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Speaker 2: in these sorts of cases, the defenders are facing real headwinds.
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Speaker 1: In fact, I think the only time in recent years
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Speaker 1: when religious rights lost, Greg, was the case you argued
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Speaker 1: and won last year. that left in place a state
12:11
Speaker 1: ruling blocking the nation's first religious charter school. So your
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Speaker 1: win there was the exception. Stay with me. Coming up next,
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Speaker 1: 12 Angry Men is a classic film. How do six
12:24
Speaker 1: angry men sound? I'm June Grosso, and you're listening to Bloomberg.
12:28
Speaker 2: I mean, you're asking us to believe that somebody else
12:30
Speaker 2: did the stabbing with exactly the.
12:32
Speaker 3: Same kind of knife. The odds are a million to one.
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Speaker 3: It's possible. There are still 11 of us here who
12:37
Speaker 3: think he's guilty. Right. What do you think you're going
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Speaker 3: to accomplish? You're not going to change anybody's mind. So
12:42
Speaker 3: if you want to be stubborn and hang this jury,
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Speaker 3: go ahead. The kid will be tried again and found
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Speaker 3: guilty as sure as he's born. Probably right.
12:49
Speaker 1: 12 Angry Men is a classic film. But would a
12:54
Speaker 1: film entitled Six Angry Men still be a classic? The
12:58
Speaker 1: 12-person jury has been commonplace since the founding. But does
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Speaker 1: the Constitution actually require that number to sit in criminal cases?
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Speaker 1: In fact, six states currently use juries with just six
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Speaker 1: members in certain criminal cases. And now the Supreme Court
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Speaker 1: will decide whether the Sixth Amendment right to a fair
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Speaker 1: trial requires a 12-person jury. I've been talking to Gregory Garr,
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Speaker 1: former U.S. Solicitor General and a partner at Latham & Watkins. Greg,
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Speaker 1: tell us about this case that comes out of Florida.
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Speaker 2: So this case involves a Florida chiropractor, Hamed Kayan, who
13:35
Speaker 2: was convicted by a unanimous six-person jury for practicing with
13:39
Speaker 2: a suspended license and sentenced to over a year in prison.
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Speaker 2: So Florida, like several other states, has used a six-person
13:46
Speaker 2: jury in non-death penalty cases since 1877. And in a
13:51
Speaker 2: 1970 case called Williams v.
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Speaker 3: Florida, the U.S.
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Speaker 2: Supreme Court upheld the constitutionality of Florida's six-person jury by
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Speaker 2: a lopsided vote. Kahn, after his conviction, took his case
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Speaker 2: to the Supreme Court and asked the court to overrule
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Speaker 2: the Williams decision. In doing that, he relies on a
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Speaker 2: 2020 case called Ramos v. Louisiana, in which the court
14:13
Speaker 2: held that the Sixth Amendment protects the jury as it
14:16
Speaker 2: was understood when the amendment was adopted in 1791. In Ramos,
14:21
Speaker 2: the court held that jury verdicts must be unanimous because
14:24
Speaker 2: that was the rule in 1791. And in this case,
14:28
Speaker 2: Kahn argues that the juries must include 12 members because
14:31
Speaker 2: that was the practice in 1791. Florida responds that the
14:35
Speaker 2: Sixth Amendment preserves only the jury's essential function and not
14:39
Speaker 2: every detail of common law practice. And the stakes of
14:43
Speaker 2: this case are really huge. If the court does overturn
14:46
Speaker 2: the Williams decision, as it may, Florida says that there
14:50
Speaker 2: are 5,006 juror convictions pending on appeal right now, and
14:55
Speaker 2: five other states use six-person juries, so there are countless
14:58
Speaker 2: other convictions that could be impacted by this. But this
15:02
Speaker 2: is an issue that some justices have written about separately.
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Speaker 2: And so I think that the court was looking for
15:07
Speaker 2: the right case to reconsider this issue.
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Speaker 1: Yeah, Justice Gorsuch wrote that Williams was wrong the day
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Speaker 1: it was decided. Florida does what the Constitution forbids because
15:17
Speaker 1: of us. So they would have to overrule Williams.
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Speaker 2: Yeah, they would have to overrule Williams, you know, looking
15:24
Speaker 2: at the traditional stare decisis factors. And one thing that
15:27
Speaker 2: may be interesting in this case is to see whether
15:30
Speaker 2: or not the more liberal justices, who might be very
15:33
Speaker 2: sympathetic to Gant's claim as a criminal procedure matter, would
15:38
Speaker 2: go along with overruling precedents, since they are generally very
15:41
Speaker 2: reluctant to have this court overrule precedent. But this case
15:45
Speaker 2: also illustrates that the shift on the court compared to
15:49
Speaker 2: the court decades ago, where the current court is much
15:53
Speaker 2: more interested in and sympathetic to originalism-type arguments. And here,
15:59
Speaker 2: the argument is sort of a classic originalism argument that
16:02
Speaker 2: we're going to interpret the Sixth Amendment today as it
16:04
Speaker 2: would have been interpreted in 1791 when it was adopted.
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Speaker 1: You know, this case made me curious about the significance
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Speaker 1: of the number 12 for juries, where that number came from.
16:15
Speaker 1: And the Williams Court said that number was a historical accident,
16:20
Speaker 1: wholly without significance, except to mystics. Do you know where
16:24
Speaker 1: the 12 came from?
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Speaker 2: I do not know where the 12 came from, and
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Speaker 2: that's no doubt going to be one of the issues
16:30
Speaker 2: discussed in the brief. I do know that one of
16:33
Speaker 2: the most famous movies about juries was The Twelve Angry Men,
16:37
Speaker 2: so I think it's had some historical significance for some time.
16:40
Speaker 2: Whether or not that movie will fit into the analysis,
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Speaker 2: I doubt it, but it'll be fun to see where
16:45
Speaker 2: the court ends up on this one.
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Speaker 1: I'd love to see 12 angry men mentioned in the
16:49
Speaker 1: majority opinion in the case. I'm also curious if a
16:53
Speaker 1: defendant fares better with a 12-person jury as opposed to
16:57
Speaker 1: a 6-person jury because there are more diverse viewpoints and
17:02
Speaker 1: more chances to get at least one juror to agree
17:05
Speaker 1: with them.
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Speaker 2: I bet there are studies into that, and I would
17:09
Speaker 2: not be surprised if it were the case that a
17:12
Speaker 2: 12-person jury was more favorable for the defense. If for
17:16
Speaker 2: no other reason, then it's harder to get 12 people
17:18
Speaker 2: to agree on something than six people.
17:20
Speaker 3: And if you're the defendant, you just need one person
17:22
Speaker 3: to go the other way.
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Speaker 1: The arguments in this case are going to be so interesting. Now,
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Speaker 1: turning to the Second Amendment, the Supreme Court has been
17:29
Speaker 1: expanding Second Amendment rights and decided two cases last term.
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Speaker 1: This term on December 2nd, they're going to consider bans
17:38
Speaker 1: on semi-automatic weapons, including the AR-15 weapon.
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Speaker 2: The Second Amendment in guns has definitely been one of
17:46
Speaker 2: the areas where the Supreme Court has been more active
17:49
Speaker 2: in recent years. Last year, the court ruled in favor
17:52
Speaker 2: of gun owners in two Second Amendment cases, and this
17:54
Speaker 2: term is going to revisit the area again. And considering
17:58
Speaker 2: the constitutionality of bans on AR-15 or similar assault rifles.
18:04
Speaker 2: So this is actually two different cases arises from laws
18:07
Speaker 2: in two different jurisdictions, including the Connecticut law passed in
18:11
Speaker 2: the wake of the tragic Sandy Hook school shooting that
18:14
Speaker 2: barred individuals from owning, buying, or transferring assault rifles, including AR-15s.
18:20
Speaker 2: And this really comes down to an application of this
18:23
Speaker 2: new jurisprudence that the Supreme Court has created under the
18:26
Speaker 2: Second Amendment, where it looks to the history and tradition
18:30
Speaker 2: of the particular gun regulation going back in the country's history.
18:36
Speaker 2: And the state argues that AR-15s and similar assault rifles
18:40
Speaker 2: fall within the historical tradition of regulating dangerous and unusual weapons.
18:45
Speaker 2: But the challengers, pointing to a different strain in the
18:47
Speaker 2: court's cases, argue that the AR-15 must be protected under
18:51
Speaker 2: the Second Amendment because the AR-15 is in common use
18:55
Speaker 2: today and indeed has become one of the most popular
18:57
Speaker 2: guns in America. The state and local governments have been
19:00
Speaker 2: unsuccessful in defending gun laws at the Supreme Court in
19:03
Speaker 2: recent years, and some justices have already signaled that they're
19:07
Speaker 2: sympathetic to the argument that assault weapons bans violate the
19:10
Speaker 2: Second Amendment, even notwithstanding some of the tragic circumstances, such
19:15
Speaker 2: as the Sandy Hook shooting that surround these weapons. But
19:20
Speaker 2: one thing that may be important is that this case
19:22
Speaker 2: does not involve a challenge to laws banning or restricting
19:26
Speaker 2: high-capacity magazines that can be used with AR-15s. So no
19:31
Speaker 2: matter how this case comes out, that might be the
19:33
Speaker 2: next one.
19:34
Speaker 1: And the lower courts have generally been upholding these assault
19:38
Speaker 1: weapon bans?
19:39
Speaker 3: That's right.
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Speaker 2: The lower courts have largely upheld them. You know, applying
19:43
Speaker 2: the Supreme Court's precedent, which many of them have found
19:45
Speaker 2: somewhat difficult to apply, but there's no question that the
19:49
Speaker 2: Morkans justices in the Supreme Court have been more receptive
19:54
Speaker 2: to Second Amendment arguments in recent years. And as I mentioned,
19:59
Speaker 2: some of them in particular have singled these bans out
20:02
Speaker 2: as being problematic.
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Speaker 1: Yeah. So when the court turned away two challenges to
20:06
Speaker 1: assault weapons bans last year, Justices Clarence Thomas, Samuel Alito,
20:10
Speaker 1: and Neil Gorsuch all said they would have taken up
20:12
Speaker 1: the issue. Brett Kavanaugh said that the challengers had a
20:16
Speaker 1: strong argument that the ban was unconstitutional. So do you
20:20
Speaker 1: think it's going to fall on Chief Justice John Roberts
20:24
Speaker 1: and Justice Amy Coney Barrett?
20:26
Speaker 3: I think that's right.
20:27
Speaker 2: And, you know, we've seen this time and again in
20:30
Speaker 2: the higher profile cases where it often comes down to
20:34
Speaker 2: those justices in the middle. Sometimes it includes Justice Kavanaugh. Here,
20:39
Speaker 2: Justice Kavanaugh has already signaled that he's sympathetic to the
20:43
Speaker 2: claim that these bans are unconstitutional. So looking at the
20:46
Speaker 2: Chief Justice and Justice Barrett is probably going to tell
20:49
Speaker 2: a lot about how the court resolves this case.
20:52
Speaker 1: And I don't know if it factors into some of
20:55
Speaker 1: the justices' thinking, but AR-15-style rifles are frequently involved in
21:01
Speaker 1: the deadliest cases. high-casualty mass shootings.
21:06
Speaker 2: Yeah, I think that's right. And obviously, you know, horrifically
21:09
Speaker 2: tragic circumstances. I would say that often in these sorts
21:14
Speaker 2: of mass shootings, they're also using the high-capacity magazines. And
21:18
Speaker 2: so it may be that the court draws a distinction
21:20
Speaker 2: between the two and, you know, conceivably could look at
21:24
Speaker 2: laws regulating high-capacity magazines as different. But then again, the
21:28
Speaker 2: resolution of this case could, you know, have something to
21:31
Speaker 2: say about that as well.
21:33
Speaker 1: More controversial social issues are going to come up in
21:35
Speaker 1: a case that'll be argued on December 7th. Washington state
21:40
Speaker 1: laws allow youth shelters to withhold notification from parents if
21:45
Speaker 1: a runaway minor seeks gender-affirming care. So this involves LGBTQ rights,
21:51
Speaker 1: parental rights. Religious rights are also involved, I think.
21:55
Speaker 3: A little bit of everything.
21:57
Speaker 2: And this is another area where we've seen the court
21:59
Speaker 2: take cases in recent years that I mean, what's important
22:02
Speaker 2: about this case, though, is it only involves the question
22:05
Speaker 2: of legal standing, and that is of the parents, whether
22:08
Speaker 2: or not they have a standing to challenge a Washington
22:11
Speaker 2: state law that makes it easier for runaway minors to
22:14
Speaker 2: get gender treatment without parental notice or consent. The case
22:19
Speaker 2: involves a challenge to a Washington law under which a
22:21
Speaker 2: shelter may contact the state's Department of Children, Youth, and
22:24
Speaker 2: Families when a child runs away to get gender treatment,
22:27
Speaker 2: but is not required to contact the child's parents. The
22:31
Speaker 2: plaintiffs here are five sets of Washington parents. They say
22:34
Speaker 2: their children experience gender confusion of various types, and they
22:38
Speaker 2: allege present harms from that. For example, one mother says
22:42
Speaker 2: she stopped disciplining her daughter for fear that she'll run away,
22:47
Speaker 2: and others have stopped discussing gender at home. The parents
22:51
Speaker 2: argue that the laws violate their constitutional rights. the rights
22:55
Speaker 2: to direct their child's upbringing, to refuse medical treatment for them,
22:58
Speaker 2: to raise them in their faith, and to speak freely
23:01
Speaker 2: about gender. The district court nevertheless dismissed the action, saying
23:05
Speaker 2: that parents didn't have Article III standing, not enough of
23:08
Speaker 2: a concrete injury to challenge the Washington law, and the
23:12
Speaker 2: Ninth Circuit affirmed. The fact that the Supreme Court granted
23:16
Speaker 2: review here, and given the underlying policies, may make it
23:20
Speaker 2: more challenging before this court, Standing also has become a
23:24
Speaker 2: really important issue in the wave of parental rights challenges
23:28
Speaker 2: to school and state gender identity policies and the like.
23:32
Speaker 2: And here, as in some of the other cases we've discussed,
23:35
Speaker 2: some of the justices have already expressed concern about this issue.
23:39
Speaker 2: So this may be another one that the state is
23:41
Speaker 2: fighting an uphill battle.
23:43
Speaker 1: And like religious rights always win, it seems to me
23:47
Speaker 1: that LGBTQ rights always lose, whether it's reading LGBTQ-friendly storybooks
23:54
Speaker 1: in schools or bans on gender-affirming care for minors. But
23:59
Speaker 1: has the court addressed the standing of parents in any
24:02
Speaker 1: of these cases?
24:03
Speaker 2: That standing issue, I don't recall coming up in those cases.
24:06
Speaker 2: This is something that has, I think, come up more
24:09
Speaker 2: in some of the lower court cases. But, you know,
24:11
Speaker 2: as we've seen, I mean, even with the ballroom case
24:14
Speaker 2: earlier last month, you know, standing, the ability to get
24:18
Speaker 2: into court to bring your challenge is oftentimes the whole ballgame.
24:22
Speaker 2: And so the standing issue in this case, in similar cases,
24:26
Speaker 2: is critical to parents and plaintiff's groups bringing these challenges.
24:30
Speaker 1: And standing is often an off-ramp for the justices so
24:34
Speaker 1: they don't have to reach the merits of the case.
24:36
Speaker 1: Coming up next, we'll continue the conversation on the Supreme
24:39
Speaker 1: Court's upcoming term with the case of the Alaskan pilot,
24:43
Speaker 1: the six-pack of beer, and the Constitution. Is seizing a
24:47
Speaker 1: plane over a six-pack an excessive fine? Alaska's Supreme Court
24:53
Speaker 1: said no. A note, Michael Bloomberg, the founder and majority
24:57
Speaker 1: owner of Bloomberg LP, the parent company of Bloomberg Radio,
25:01
Speaker 1: is a donor to groups that support gun control, including
25:05
Speaker 1: Everytown for Gun Safety. I'm June Grosso, and you're listening
25:09
Speaker 1: to Bloomberg. It doesn't seem like a case that should
25:14
Speaker 1: be at the Supreme Court. It involves an 82-year-old Alaskan
25:18
Speaker 1: bush pilot, a six-pack of beer, and a misdemeanor conviction
25:23
Speaker 1: for flying alcohol into a dry village back in 2012.
25:26
Speaker 1: The twist is that the state of Alaska wants to
25:31
Speaker 1: seize the pilot Ken Juppie's plane over the misdemeanor of
25:35
Speaker 1: transporting alcohol to a dry community. And Juppie says he
25:39
Speaker 1: didn't even know his passenger was carrying beer in her luggage.
25:43
Speaker 2: And there was one six-pack in a shopping bag that I.
25:48
Speaker 3: Just did not see.
25:49
Speaker 1: He argues that seizing his $ 95, 000 plane would violate the
25:54
Speaker 1: Eighth Amendment's ban on excessive fines. I've been discussing the
25:58
Speaker 1: Supreme Court's upcoming term with former U.S. Solicitor General Gregory
26:03
Speaker 1: Garr of Latham & Watkins. Greg, the facts in this
26:06
Speaker 1: case are just wild. So tell us more about the plane,
26:09
Speaker 1: the six-pack. Budweiser, by the way, and the Eighth Amendment.
26:14
Speaker 3: It's got it all.
26:15
Speaker 2: So the question in this case is the standard for
26:17
Speaker 2: whether a fine or forfeiture violates the Eighth Amendment's excessive
26:21
Speaker 2: fine clause. And in this case, the Alaska State Police
26:24
Speaker 2: arrested a Bush pilot, Ken Jopie, and his only passenger
26:28
Speaker 2: on his air taxi plane after the plane flew a
26:30
Speaker 2: six-pack of beer from Fairbanks, Alaska into Beaver, Alaska, an
26:35
Speaker 2: Alaska native village where alcohol is strictly prohibited. The state
26:40
Speaker 2: convicted Jupe, the pilot of a misdemeanor, sentenced him to
26:43
Speaker 2: three days in jail, ordered him to pay a $ 1, 500 fine,
26:47
Speaker 2: and then on top of all that, forfeited his airplane
26:51
Speaker 2: because it contained the contraband. The trial court found this
26:54
Speaker 2: forfeiture excessive under the Constitution, but the Alaska Supreme Court
26:59
Speaker 2: upheld the forfeiture and the Supreme Court granted review. So Jopi,
27:03
Speaker 2: the pilot, claims that the courts below erred by focusing
27:06
Speaker 2: on the harms created by alcohol in these communities in
27:08
Speaker 2: the abstract. And there's no question that alcohol has been
27:12
Speaker 2: very harmful, especially to Alaska Native villages. What Jopi claims
27:16
Speaker 2: is that instead, for the constitutional forfeiture analysis, they should
27:20
Speaker 2: have looked at whether or not the forfeiture of the
27:22
Speaker 2: plane was proportional in relation to the specific wrongdoing here,
27:27
Speaker 2: carrying a six-pack on the plane into the Alaskan villages.
27:31
Speaker 2: And this is one of those cases where I think
27:32
Speaker 2: the colorful facts put the state in a really difficult position.
27:36
Speaker 2: In the meantime, a number of civil liberty groups have
27:39
Speaker 2: lined up as amici, seeing this case as a chance
27:42
Speaker 2: to strengthen the Eighth Amendment's limits on civil forfeitures and
27:46
Speaker 2: the like at a time when governments collect billions of
27:49
Speaker 2: dollars through their forfeiture efforts.
27:52
Speaker 1: And the trial judge in the case twice refused to
27:56
Speaker 1: take Juppie's plane. And, you know, standing before him is
28:00
Speaker 1: this Air Force veteran in his 80s whose only income
28:04
Speaker 1: besides Social Security is flying passengers to villages in Alaska,
28:10
Speaker 1: basically like a taxi cab driver in the air. So,
28:13
Speaker 1: as you said, the facts are compelling. But is there
28:16
Speaker 1: relevant Supreme Court precedent?
28:18
Speaker 2: There have been some recent cases, but I think a
28:20
Speaker 2: number of the justices have written separately to suggest that
28:24
Speaker 2: this is an area where they would like to weigh
28:27
Speaker 2: in on. And so this, from their perspective, may be
28:30
Speaker 2: the perfect case at the perfect time. It's really quite amazing,
28:35
Speaker 2: given the facts here, that this case has gone all
28:37
Speaker 2: the way to the U.S.
28:38
Speaker 3: Supreme Court.
28:39
Speaker 2: And I think at the end of the day, the
28:41
Speaker 2: state may regret that it didn't find a way to
28:44
Speaker 2: resolve it beforehand.
28:45
Speaker 1: And this dispute's been going on for 14 years. Will
28:49
Speaker 1: the state's arguments about the difficulties of combating alcohol abuse
28:54
Speaker 1: play a role in the justices' decision here?
28:57
Speaker 2: You know, I think it's going to be an important
28:59
Speaker 2: part of the arguments before the court. And this is really,
29:03
Speaker 2: truly a serious issue that the state is dealing with
29:06
Speaker 2: and Alaska Native communities are dealing with. And I don't
29:09
Speaker 2: think any of the justices will doubt that. But at
29:11
Speaker 2: the end of the day, I think they are going
29:12
Speaker 2: to require a you know, more narrowly tailored analysis to
29:16
Speaker 2: determine whether or not taking someone's plane away from him
29:20
Speaker 2: for carrying a six-pack into the village is actually proportional
29:23
Speaker 2: to the offense.
29:24
Speaker 1: It's hard to see it as proportional, but let's turn
29:27
Speaker 1: to a case coming up on November 30th that could
29:30
Speaker 1: expand Title IX, which prohibits sex discrimination by federally funded
29:35
Speaker 1: educational institutions. So an art professor and a women's basketball
29:40
Speaker 1: coach at two public universities in Georgia sued their schools
29:44
Speaker 1: for sex discrimination under Title IX, and the cases were consolidated.
29:50
Speaker 2: As you mentioned, Title IX prohibits sex discrimination against students,
29:56
Speaker 2: and the question in this case is whether it also
29:58
Speaker 2: creates a private right of action. for employment discrimination by
30:02
Speaker 2: the employees of educational institutions. The lower court in this
30:06
Speaker 2: case held that Title IX does not give school employees
30:09
Speaker 2: a private right to sue for employment discrimination, instead that
30:12
Speaker 2: it's an action limited to sex-based discrimination. But the Supreme
30:16
Speaker 2: Court granted review. Now here I think the plaintiffs are
30:19
Speaker 2: going to face two obstacles. The first is that the
30:22
Speaker 2: Supreme Court has been increasingly reluctant to infer private rights
30:25
Speaker 2: of actions not expressly created by Congress. And the second
30:30
Speaker 2: is that Congress created an express right of action for
30:33
Speaker 2: employment discrimination in Title VII just months before it enacted
30:37
Speaker 2: Title IX. So it's pretty hard to argue that Congress
30:40
Speaker 2: intended Title IX to extend to employment discrimination claims when
30:45
Speaker 2: it didn't say so. The practical stakes of this case
30:48
Speaker 2: are big for both sides, and especially for universities and
30:52
Speaker 2: all educational institutions receiving federal funds. Because if employees can
30:57
Speaker 2: sue under Title IX, then they can bypass the limits
31:00
Speaker 2: that Congress has placed on Title VII employment discrimination actions,
31:05
Speaker 2: which would put more stress and burdens on educational institutions.
31:10
Speaker 1: I think the circuit split here is eight to three.
31:13
Speaker 1: Do the justices consider the numbers on each side of
31:17
Speaker 1: the split? Does that have any bearing?
31:19
Speaker 3: It really doesn't.
31:20
Speaker 2: I mean, the existence of the circuit split is the
31:22
Speaker 2: primary reason why the Supreme Court grants review. But once
31:26
Speaker 2: it grants review, it really doesn't tally up which position
31:30
Speaker 2: has more support in the circuits. There are cases where
31:34
Speaker 2: the conflicts go eight to one, and the Supreme Court
31:37
Speaker 2: will decide with the one. They're not going to defer
31:41
Speaker 2: to how the lower courts think about an issue.
31:43
Speaker 3: They're going to think about it themselves.
31:45
Speaker 2: And so here, I think it's the circuit split is
31:47
Speaker 2: the reason why the case is in the U.S. Supreme Court.
31:50
Speaker 2: But I don't think the justices will pay much attention
31:52
Speaker 2: to that.
31:53
Speaker 1: In writing the 11th Circuit's decision, which found that Title
31:57
Speaker 1: IX doesn't give employees a private right of action for
32:00
Speaker 1: sex discrimination, the Chief Judge William Pryor pointed to the
32:04
Speaker 1: text of the statute. I mean, do you think this
32:07
Speaker 1: is going to be a textual reading of the statute
32:09
Speaker 1: for the justices as well?
32:11
Speaker 3: Absolutely.
32:12
Speaker 2: So Title IX doesn't actually create an express cause of action.
32:16
Speaker 2: The private right of action was implied by the Supreme
32:18
Speaker 2: Court back in the 1970s and in a completely different
32:22
Speaker 2: era where the court was more apt to sort of
32:25
Speaker 2: infer things in terms of what Congress intended. This Supreme
32:29
Speaker 2: Court is much more focused on the actual text of
32:34
Speaker 2: the statute. And here, the problem for the plaintiffs is
32:38
Speaker 2: that the statute does not refer to employment discrimination. And again,
32:43
Speaker 2: I mean, just before Congress enacted Title IX, it enacted
32:47
Speaker 2: Title VII, which is the federal statute dealing with employment discrimination.
32:51
Speaker 2: So it's just really hard to believe that Congress impliedly
32:55
Speaker 2: intended Title IX to address employment discrimination when it didn't
32:58
Speaker 2: say anything about that in the actual statute.
33:01
Speaker 1: When the employees appealed to the Supreme Court, The court
33:04
Speaker 1: asked the Trump administration to weigh in, and the U.S.
33:08
Speaker 1: Solicitor General said he thought the Court of Appeals decision
33:12
Speaker 1: was correct, but that the justices should take the case
33:15
Speaker 1: because the lower courts are divided. I've always wondered, so
33:19
Speaker 1: I'm going to ask you as a former Solicitor General,
33:22
Speaker 1: how much weight do the justices give to the opinions
33:25
Speaker 1: of the Solicitor General?
33:26
Speaker 3: Well, I have to say they weigh it very carefully,
33:28
Speaker 3: and I think that they do.
33:29
Speaker 2: I mean, first of all, they often ask the Solicitor
33:31
Speaker 2: General to weigh in on whether or not to take
33:33
Speaker 2: a case. And they do take the SG's views very
33:37
Speaker 2: seriously on that.
33:38
Speaker 3: In that respect, the SG is really, in a way,
33:40
Speaker 3: trying to help the court out.
33:41
Speaker 2: On the merits, too, the government briefs are taken very
33:45
Speaker 2: carefully because they're extremely well written and well thought out.
33:49
Speaker 2: But the court's going to read all the briefs, and
33:51
Speaker 2: it's not going to give any added deference to the
33:54
Speaker 2: SG or the lawyers from the SG's office.
33:57
Speaker 3: But it's certainly going to read their brief.
33:59
Speaker 1: I've lost track of how many immigration-related cases the court
34:02
Speaker 1: has taken on the emergency or shadow docket. They're also
34:06
Speaker 1: taking a few on the regular docket this term, and
34:10
Speaker 1: one has implications for the growing number of asylum seekers. Basically,
34:15
Speaker 1: can you still get a green card if you lose
34:18
Speaker 1: your asylum status?
34:20
Speaker 2: Recently, we've seen a number of immigration cases at the U.S.
34:24
Speaker 2: Supreme Court, really in response to the Trump administration's aggressive
34:28
Speaker 2: efforts immigration and removal policies. And the question in this
34:32
Speaker 2: case is whether non-citizens in the United States who obtained
34:36
Speaker 2: asylum status in the past because of a legitimate fear
34:40
Speaker 2: of persecution on account of their race, religion, or other
34:43
Speaker 2: factors in their home country.
34:45
Speaker 3: But then lost that asylum status.
34:47
Speaker 2: Over time, are eligible still to apply to be a
34:50
Speaker 2: lawful permanent resident in order to remain in the United States.
34:54
Speaker 2: This case involves non-citizens from Egypt and Guatemala who who
34:58
Speaker 2: obtained asylum status but then lost it after they were
35:01
Speaker 2: convicted of certain criminal offenses. They then sought lawful permanent
35:06
Speaker 2: resident status so they could remain in the United States,
35:09
Speaker 2: but the courts held that they were categorically ineligible for
35:11
Speaker 2: such status because they no longer had asylum status at
35:15
Speaker 2: the time that they applied for lawful permanent resident status.
35:19
Speaker 2: And legally, this issue boils down to a technical statutory
35:23
Speaker 2: question of whether the phrase, quote, any alien granted asylum
35:28
Speaker 2: end quote, in the Immigration and Naturalization Act applies to
35:31
Speaker 2: anyone who has ever been granted asylum or only those
35:35
Speaker 2: who currently have asylum status. The issue is critical for
35:39
Speaker 2: many individuals in the immigration system because individuals who cannot
35:43
Speaker 2: obtain lawful permanent resident status can be removed by the government,
35:47
Speaker 2: even if they've lived here for decades. And the same
35:50
Speaker 2: is true for wholly innocent spouses and children whose own
35:54
Speaker 2: immigration status is often derivative of a spouse's or parent's status.
35:59
Speaker 1: How have the lower courts stood on this?
36:01
Speaker 2: So this is another one of those areas where the
36:03
Speaker 2: lower courts have split, and that's why the Supreme Court
36:05
Speaker 2: agreed to hear it. But some of the courts have
36:07
Speaker 2: sided with the aliens challenging their removal, and other courts
36:11
Speaker 2: have sided with the government.
36:13
Speaker 1: In immigration-related cases on the emergency docket, the Trump administration
36:17
Speaker 1: has won overwhelmingly. Do you think that will hold true
36:21
Speaker 1: here as well?
36:23
Speaker 2: So I don't think that the Trump administration's win record
36:26
Speaker 2: in the other immigration cases necessarily will translate here, because
36:30
Speaker 2: oftentimes in this area, the administration has the benefit of
36:34
Speaker 2: deference to the president's role under Article II in the
36:38
Speaker 2: immigration area. And what's different about this case is it
36:41
Speaker 2: really presents a technical question of statutory interpretation. So I
36:46
Speaker 2: think this is going to be one of the cases
36:48
Speaker 2: where the justices just roll up their sleeves and try
36:50
Speaker 2: to figure out what this language means. you know, even
36:53
Speaker 2: the more conservative justices are textualists. And if they conclude
36:57
Speaker 2: that the language refers to anyone who's held asylum status
37:02
Speaker 2: at any point, even if they don't hold it currently,
37:04
Speaker 2: I think they'll give effect to that language.
37:06
Speaker 1: Now, just this week on Tuesday, the Supreme Court on
37:11
Speaker 1: the emergency docket decided to allow the Trump administration to
37:15
Speaker 1: resume deporting undocumented immigrants to countries that they have no
37:21
Speaker 1: connection to. They're going to hear arguments in the case
37:25
Speaker 1: in December. What are the issues here?
37:28
Speaker 2: So this is a challenge to the Trump administration's policy
37:31
Speaker 2: that aliens with a final removal order may be promptly
37:34
Speaker 2: removed to a third country, not listed in the removal order,
37:38
Speaker 2: a country that was not their home country without any
37:41
Speaker 2: prior notice to the alien or opportunity to be heard.
37:45
Speaker 2: As long as the country is credibly assured the Secretary
37:48
Speaker 2: of State, that it will not persecute or torture anyone.
37:51
Speaker 3: And the case.
37:52
Speaker 2: Involves a class action brought by aliens subject to removal
37:55
Speaker 2: who claim they fear removal to countries not listed in
37:58
Speaker 2: their removal order because they may be persecuted or tortured there,
38:02
Speaker 2: and that they could be sent there even without prior
38:04
Speaker 2: notice or an opportunity to be heard before they're removed. Now,
38:08
Speaker 2: the government relies on federal immigration law. They argue that
38:11
Speaker 2: the law strips courts of jurisdiction altogether from to enjoin
38:15
Speaker 2: the operation of the Act's removal provisions. And in response,
38:18
Speaker 2: the plaintiffs argue that constitutional due process and other provisions
38:22
Speaker 2: of the Immigration Act entitle them at least to notice
38:25
Speaker 2: an opportunity to be heard before they're removed to a
38:28
Speaker 2: third country. The fact that the court granted the government's
38:33
Speaker 2: request for a stay of a lower court ruling, which
38:36
Speaker 2: it enjoined this practice, at the same time it granted certiorari,
38:41
Speaker 2: suggests that the government may already have a majority of
38:44
Speaker 2: the court for its position. But we'll have to wait
38:47
Speaker 2: and see. We'll have full briefing and oral argument before
38:50
Speaker 2: the court reaches a result.
38:52
Speaker 1: Also, in two other instances when this came before the justices,
38:56
Speaker 1: the conservatives sided with the Trump administration over the dissents
39:01
Speaker 1: of the three liberals. Is there anything new that could
39:03
Speaker 1: come up that would have them change what they've decided
39:07
Speaker 1: basically three times?
39:10
Speaker 3: Yeah, it's hard to know what that would be.
39:12
Speaker 2: And we've seen this pattern play out a number of
39:14
Speaker 2: times in recent years where the justices make rulings on
39:18
Speaker 2: the emergency docket granting or denying stays, which are basically
39:24
Speaker 2: many merits rulings. They're not actual merits rulings. They're only
39:28
Speaker 2: talking about the likelihood of success. But those rulings, you know,
39:31
Speaker 2: invariably line up with how the justices end up after
39:35
Speaker 2: hearing the case following oral argument and full briefing.
39:39
Speaker 1: Reportedly, some of these flights have turned into violent situations
39:44
Speaker 1: with deportees who resist getting on the plane, being hit
39:48
Speaker 1: with pepper balls and being tightly restrained and carried onto
39:53
Speaker 1: the plane, will that have any bearing on the decision?
39:56
Speaker 1: It seems so brutal.
39:58
Speaker 2: From a human standpoint, it seems very difficult. And no
40:02
Speaker 2: doubt the challengers here will make those circumstances front and
40:06
Speaker 2: center in their briefs. But, you know, the justices, and
40:09
Speaker 2: particularly the more conservative justices, are going to look carefully
40:13
Speaker 2: to what the immigration statute says. And if they conclude
40:16
Speaker 2: that Congress actually stripped courts of jurisdiction to enjoin these practices,
40:22
Speaker 2: then they likely would give effect to that as several
40:24
Speaker 2: of the justices have already signaled. And as you indicated earlier,
40:28
Speaker 2: I mean, the Trump administration, generally speaking, has had a
40:31
Speaker 2: pretty favorable record in these cases. And so this may
40:35
Speaker 2: be another one where the justices would be more inclined
40:38
Speaker 2: to defer to the president on this.
40:41
Speaker 1: Greg, I look forward to our Supreme Court preview every year.
40:45
Speaker 1: Thanks so much for taking the time to do it again.
40:47
Speaker 1: And I'll be watching, or rather listening, when you argue
40:51
Speaker 1: in the Apple versus Epic Games case later this term.
40:56
Speaker 1: Thanks again.
40:56
Speaker 3: Always great to connect. I enjoyed it.
40:58
Speaker 1: That's former U.S. Solicitor General Gregory Garr, a partner at
41:02
Speaker 1: Latham & Watkins. And that's it for this edition of
41:05
Speaker 1: the Bloomberg Law Show. Remember, you can always get the
41:08
Speaker 1: latest legal news on our Bloomberg Law Podcast. You can
41:11
Speaker 1: find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash
41:17
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41:21
Speaker 1: Law Show every weeknight at 10 p.m. Wall Street time.
41:25
Speaker 1: I'm June Grosso, and you're listening to Bloomberg.