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War on Judges, LGBTQ Loss & Rastafarian's Religious Suit · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 1: It's a war man.
0:11
Speaker 2: That's Todd Blanche, the second in command at the Justice Department,
0:15
Speaker 2: saying the department is at war with federal judges. Blanche
0:19
Speaker 2: echoed President Donald Trump and Attorney General Pam Bondi's attacks
0:24
Speaker 2: on so called rogue judges who handed down decisions against
0:29
Speaker 2: the Trump administration.
0:30
Speaker 1: These activist judges that they have a RoboN, but they
0:36
Speaker 1: are more political, or certainly as political as the most
0:41
Speaker 1: liberal governor of da.
0:42
Speaker 2: The Deputy Attorney General, who was formerly Trump's lawyer, defended
0:47
Speaker 2: the Justice Department against claims of weaponization, but then urged
0:51
Speaker 2: young lawyers to join the war against judges.
0:55
Speaker 1: There has got to be a couple dozen young lawyers
1:00
Speaker 1: who are thirsty and hungry and ready to work because
1:04
Speaker 1: we need you, because it is a war.
1:07
Speaker 2: A group of retired federal judges is warning that the
1:10
Speaker 2: language Blanche used poses a grave threat to the rule
1:14
Speaker 2: of law and the judiciary joining me from the Article
1:17
Speaker 2: three coalition is Judge Johnny Jones, the third. He was
1:21
Speaker 2: appointed by George W. Bush and served for two decades
1:24
Speaker 2: on the US District Court for the Middle District of Pennsylvania.
1:29
Speaker 2: Judge Jones, First, your reaction to the Deputy Attorney General
1:33
Speaker 2: saying that the Justice Department is at war with the judiciary.
1:37
Speaker 3: I think that the comment is at minimum men opportunity,
1:41
Speaker 3: and I think writ large, it's grossly irresponsible for the
1:45
Speaker 3: number two individual at the Department of Justice to characterize
1:50
Speaker 3: anything involving the federal judiciary as a war at war
1:55
Speaker 3: against so called rogue judges. It is highly problematic and
2:00
Speaker 3: I think it's causing a great deal of consternation among
2:03
Speaker 3: the judiciary, not just active judges, but retired judges as well.
2:06
Speaker 2: He said, we have judges literally telling the president the
2:10
Speaker 2: executive what he can and cannot do. We have seen
2:13
Speaker 2: judges not following the law on the Constitution, and he
2:16
Speaker 2: said they have a row bomb. But they are more political,
2:19
Speaker 2: or certainly as political as the most liberal governor or
2:22
Speaker 2: da Well.
2:24
Speaker 3: June, here's a newsflash. That's exactly what judges are supposed
2:27
Speaker 3: to do, is say what the law is. They've been
2:30
Speaker 3: interpreting the law, of course since Marbury versus Madison, and
2:34
Speaker 3: I think he's protesting too much. What he's really striking
2:38
Speaker 3: out against our decisions that are in the judges view
2:41
Speaker 3: in accordance with the law and legal precedent. Simply because
2:45
Speaker 3: you disagree with the decision doesn't mean that you're at
2:48
Speaker 3: war with the judge who made the call. The government
2:52
Speaker 3: is fully able to exercise its appellate rights, and in
2:55
Speaker 3: fact they have in any number of these cases. So
2:58
Speaker 3: you know, to say that judges are political simply because
3:02
Speaker 3: they rendered a decision that you don't agree with is
3:04
Speaker 3: really a baseless allegation. I guess red meat if you will,
3:08
Speaker 3: for the conservative lawyers in the federalist society, But I
3:13
Speaker 3: would suspect that a lot of those lawyers entertained, though
3:17
Speaker 3: they may have been no better.
3:19
Speaker 2: So his target was sort of on the district court judges,
3:22
Speaker 2: the trial court level, and he said that when it
3:26
Speaker 2: gets to the Supreme Court, the Supreme Court has reversed
3:29
Speaker 2: them except for one or two times, which is true.
3:31
Speaker 2: But that assumes that the conservative majority on the Supreme
3:35
Speaker 2: Court is right and the federal district judges are wrong.
3:39
Speaker 2: And these decisions were all made on the emergency docket
3:43
Speaker 2: without full briefing or oral arguments.
3:46
Speaker 3: Well, a couple of things I'd say about that there
3:48
Speaker 3: are far more decisions that are standing than ones that
3:51
Speaker 3: are appealed to the Supreme Court. As you know, that
3:54
Speaker 3: court has a discretionary docket. So some of these lower
3:57
Speaker 3: court decisions have stood up simply because the Supreme Court
4:01
Speaker 3: hasn't taken them. Now, it is noteworthy that the Supreme
4:03
Speaker 3: Court has placed on its emergency dock at a number
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Speaker 3: of different cases. And yes, the government has been successful.
4:10
Speaker 3: I don't know that it's necessary under the circumstances for
4:14
Speaker 3: mister blanche, you know, to be a sore winner and
4:16
Speaker 3: do a sort of victory dance about that and castigate
4:19
Speaker 3: lower court judges. You know, the Supreme Court gets the
4:22
Speaker 3: final word on these cases. But I can go over
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Speaker 3: any number of cases that district courts have heard and
4:28
Speaker 3: have indicated that those decisions are in accordance with precedent
4:32
Speaker 3: and the law under the circumstances. You know, these are
4:35
Speaker 3: close questions in some cases as well. But again, this
4:38
Speaker 3: sort of sore winner thing is pretty wearying and unbecoming. Again,
4:43
Speaker 3: I'd say the Department of Justice that I knew and
4:46
Speaker 3: worked with was very professional during my nearly two decades
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Speaker 3: on the federal bench.
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Speaker 2: The number of threats against federal judges have skyrocketed. As
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Speaker 2: you know, what does it do when you have the
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Speaker 2: second in command saying things like this, saying, you know,
5:00
Speaker 2: we're at war, saying that judges are not following the law,
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Speaker 2: They're not following what the Supreme Court says. What's the
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Speaker 2: effect when the general public, who may not know about
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Speaker 2: the underlying cases, here's something like that from the number
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Speaker 2: two person at Justice.
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Speaker 3: Well, you have to take it in concert June with
5:19
Speaker 3: what's been happening for this entire year since January twentieth,
5:23
Speaker 3: which is that judges are being singled out by name,
5:26
Speaker 3: their families are being singled out, they're being docksed. Anybody
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Speaker 3: can find the location of a judge, even though there's
5:32
Speaker 3: been legislation to redact and hide some of their personal information.
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Speaker 3: And I think fairly judges are frightened. It puts a
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Speaker 3: bullseye on judges. And you correctly cite the US Martial
5:44
Speaker 3: Service as indicated that threats against judges there were five
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Speaker 3: hundred plus bona fide threats in the last fiscal year,
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Speaker 3: and they're growing exponentially. I've always said that, you know,
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Speaker 3: there are a lot of people that disagree with judges' decisions.
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Speaker 3: That's the nature of the business. But it's that small
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Speaker 3: percentage of unbalanced people who kind of hear this as
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Speaker 3: a dog whistle. And I have said for years, because
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Speaker 3: of this employmentatory rhetoric, that we're going to get a
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Speaker 3: judge hurt or killed. You need only look back at
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Speaker 3: my former colleague, Ester Sallus's tragedy. You know where son
6:15
Speaker 3: Danny was shot and killed back in twenty twenty. I
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Speaker 3: fear that's going to happen again if we don't dial
6:21
Speaker 3: down the rhetoric again. This goes to the irresponsibility of
6:25
Speaker 3: mister Blanche's comments. We need to level set here instead
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Speaker 3: of making it worse.
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Speaker 2: And to put this in context, these weren't casual remarks
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Speaker 2: because we've heard similar remarks from the Attorney General Pam Bondy.
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Speaker 2: She's actually called out individual judges by name for their decisions,
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Speaker 2: and of course so has President Trump. Is there some
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Speaker 2: kind of strategy at play here by the Justice Department?
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Speaker 2: Are they trying to scare judges?
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Speaker 4: What's at play?
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Speaker 3: Well, if they're trying to scare judges, that won't work
6:55
Speaker 3: because I think fairly my friends and former colleagues and
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Speaker 3: the judiciary are not easily frightened. Sure, I mean there
7:01
Speaker 3: may be a motivation to have them look over their shoulders.
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Speaker 3: I think what it is is it tears down the
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Speaker 3: integrity of the judicial system. All three branches, I think,
7:11
Speaker 3: at bottom, have a responsibility to uphold the integrity of
7:15
Speaker 3: their existence as coequal branches of government. We are seeing
7:19
Speaker 3: this unitary president going wild. Now there's another problem here, June,
7:25
Speaker 3: and I think it's that we are losing any line
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Speaker 3: of distinction between the President and the Department of Justice.
7:32
Speaker 3: Of course, not naive. There's always some interaction between the
7:35
Speaker 3: President and the Department of Justice, but they've almost become
7:38
Speaker 3: one and the same, which I think is truly troubling.
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Speaker 5: So this is the.
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Speaker 3: Number two man, and in fact the Attorney General doing
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Speaker 3: the bidding for the President of the United States and
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Speaker 3: simply parroting his view of federal judges and carrying out
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Speaker 3: We know this now because we've seen some of the
7:55
Speaker 3: things that the President has written and thought that he
7:58
Speaker 3: was playing to an audience of for example General Bondi
8:01
Speaker 3: and instructing them to prosecute people. I think my conservative
8:06
Speaker 3: lawyer friends, you know, for example, who listened to Todd
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Speaker 3: Blanche ought to be careful what they wish for, because
8:11
Speaker 3: in a world like that, I don't think anybody is
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Speaker 3: particularly safe.
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Speaker 2: And Blanche denied that the Justice Department was being weaponized,
8:20
Speaker 2: and he said the Department was weaponized before during the
8:23
Speaker 2: Biden administration. Then he talked about the prosecutions of President Trump. However,
8:30
Speaker 2: he did not mention that the current Justice Department is
8:34
Speaker 2: prosecuting former FBI Director James Comey and New York Attorney
8:40
Speaker 2: General Letitia James.
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Speaker 3: By response to that, June is there was a statement
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Speaker 3: baded by the New York Bar Association criticizing Blanche and
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Speaker 3: his response was lol to that, well, my response to
8:51
Speaker 3: what mister Blanche said about weaponization is LOL. You know,
8:54
Speaker 3: it's the same thing. If this isn't weaponizing the Justice Department.
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Speaker 3: You know, people may disagree or agree about weaponization during
9:01
Speaker 3: the Biden administration. I'm talking about the here and now.
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Speaker 3: I don't think we've seen a stark a weaponization of
9:07
Speaker 3: the Department of Justice ever. Think about the DOJ as
9:11
Speaker 3: it participated in the efforts the executive orders against law firms.
9:16
Speaker 3: They litigated those cases. You know, it was lawyer on
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Speaker 3: lawyer through that. You know, think about mister Blanche traveling
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Speaker 3: to federal prison to see Elaine Maxwell and getting a
9:26
Speaker 3: statement from her. We know now that he probably had
9:29
Speaker 3: access to emails that directly contradicted what she apparently told him,
9:34
Speaker 3: looking like every bit the president's personal lawyer instead of
9:38
Speaker 3: the number two man at Justice. I mean, we're in
9:40
Speaker 3: a world that is vastly different than anything I've ever
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Speaker 3: seen in terms of the interaction between the Justice Department
9:47
Speaker 3: and the courts. When I was a judge, by the way,
9:49
Speaker 3: you know, I thought federal judges had pretty enormous power
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Speaker 3: to be used very sparingly and carefully. We're now living
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Speaker 3: in a time when essentially the President of the United
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Speaker 3: States and the depart and a justice they're saying, in
10:02
Speaker 3: as many words, just disregard district court judgments. They're not worth,
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Speaker 3: you know, the electronic ink that's being used to render them.
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Speaker 3: I don't think that that's helpful or appropriate in any
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Speaker 3: way in terms of integrity of the third branch of government.
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Speaker 2: He didn't just attack judges. He also attacked the bar associations,
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Speaker 2: and he vowed to take away the bar association's oversight power.
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Speaker 2: Now complaints have been filed against Justice Department lawyers with
10:27
Speaker 2: bar associations, but does the Justice Department have any power
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Speaker 2: over that.
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Speaker 3: I confess June to confusion as well about how that
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Speaker 3: could be accomplished, because you're a member of a bar association,
10:40
Speaker 3: and for example, the Pennsylvania Bar Association police is its
10:43
Speaker 3: own and they can suspend you on the Supreme Court
10:46
Speaker 3: of Pennsylvania can get involved and suspend your right to
10:49
Speaker 3: practice for a period, or they can disbar you. So
10:51
Speaker 3: good luck with that. You know. Not only is it
10:54
Speaker 3: I think an overreach from a rhetorical standpoint, but I
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Speaker 3: think it's it's mission impossible.
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Speaker 2: That's why the Article three coalition decided it had to
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Speaker 2: issue a warning about Blanche's statements.
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Speaker 3: This is something that we feel in unanimity that is
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Speaker 3: really injurious to the rule of law. And you know,
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Speaker 3: if you can get fifty retired judges, you know, thoughtful
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Speaker 3: appointed by different presidents, folks at different viewpoints, going the
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Speaker 3: same direction like this, you've got something that is really
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Speaker 3: really problematic. And you know, I was proud to join
11:28
Speaker 3: that group. I fear it's going to get worse before
11:31
Speaker 3: it gets better, and that's really troubling.
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Speaker 2: Thanks so much, Judge Jones for sharing your insights and
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Speaker 2: concerns with us. That's Judge John E. Jones the third
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Speaker 2: coming up next, another setback for transgender rights at the
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Speaker 2: Supreme Court. I'm June Grosso and you're listening to Bloomberg.
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Speaker 2: It's the twenty fourth win for the Trump administration and
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Speaker 2: the second blow to transgender rights on the Supreme Court's
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Speaker 2: emergency docket in the last six months. It was a
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Speaker 2: vote down ideological lines, and the Court's conservatives are allowing
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Speaker 2: the Trump administration to require that passports be marked with
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Speaker 2: a person's sex assigned at birth. This is a reversal
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Speaker 2: of the policy that's been in place since nineteen ninety two,
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Speaker 2: which allowed passports to reflect a person's gender identity. But
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Speaker 2: President Trump made it clear when he was campaigning that
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Speaker 2: he would reverse transgender rights.
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Speaker 6: With a stroke of my pen on day one. We're
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Speaker 6: going to stop the transgender lunacy, and I will sign
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Speaker 6: executive orders to end child sexual mutilation, get transgender out
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Speaker 6: of the military and out of our elementary schools, at
12:47
Speaker 6: middle schools and high.
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Speaker 2: School And back in May, when Trump issued a transgender
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Speaker 2: military ban, the Supreme Court's conservatives allowed him to discharge
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Speaker 2: thousands of transgender some of US members who've been serving
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Speaker 2: openly for years. My guest is Suzanne Goldberg, a professor
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Speaker 2: at Columbia Law School and director of the school Sexuality
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Speaker 2: and Gender Law Clinic. Suzan, will you explain the change
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Speaker 2: in passport policy by the Trump administration.
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Speaker 4: For thirty three years, across six presidential administrations, transgender Americans
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Speaker 4: have been able to get US passports with their gender
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Speaker 4: marker that accurately matches their gender identity. So transgender man
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Speaker 4: can get M on his passport and a transgender woman
13:33
Speaker 4: can get AS on her passport, which is important for
13:37
Speaker 4: many reasons, including so that the person looks like they
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Speaker 4: match their passports. From basically nineteen ninety two to twenty ten,
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Speaker 4: there was an eligibility requirement related to a surgical transition
13:50
Speaker 4: that has changed over time. The point is, for thirty
13:54
Speaker 4: three years this has been the same. But on the
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Speaker 4: first day of his administration, Donald Trump is an executive
14:01
Speaker 4: order saying that transgender people are corrosive to the United States.
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Speaker 4: In so many words, he used the word corrosive and
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Speaker 4: directing the State Department to no longer issue passports to
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Speaker 4: people that would be consistent with their gender identity. If
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Speaker 4: they're transgender, and so the Trump executive order led the
14:20
Speaker 4: State Department to take two steps, first to stop issuing
14:24
Speaker 4: passports to transgender people consistent with their gender identity, and
14:28
Speaker 4: second to remove the ex gender marker, which was an
14:32
Speaker 4: option for anyone who does not fit the M or
14:35
Speaker 4: the F or someone who doesn't want to share their
14:38
Speaker 4: gender identity with the US government. So, put into a
14:42
Speaker 4: simple terms, the Trump administration changed policy on the first
14:46
Speaker 4: day of the administration and the State Department followed two
14:49
Speaker 4: days later to prevent transgender Americans from obtaining passports consistent
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Speaker 4: with their gender identity.
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Speaker 2: This was an unsigned order and the Conservative justices very
15:00
Speaker 2: short explanation seems to me like it's ignoring the facts
15:04
Speaker 2: that were presented in the case. The Justice has said
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Speaker 2: displaying passport holders sex at births no more offense equal
15:12
Speaker 2: protection principles than displaying their country of births. In both cases,
15:16
Speaker 2: the government is merely attesting to historical fact without subjecting
15:21
Speaker 2: anyone to differential treatment.
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Speaker 4: It is stunning because the plaintiffs in the case explained
15:29
Speaker 4: to the district court, which agreed as did the Court
15:31
Speaker 4: of Appeals, that if you are a transgender man and
15:35
Speaker 4: you have a passport that says f on it, it
15:39
Speaker 4: does have real world harmful consequences every time you have
15:44
Speaker 4: to show that passport to someone, because the person receiving
15:47
Speaker 4: the passport may say, as has happened to some of
15:50
Speaker 4: the plaintiffs, you're using fraudulent documents because you don't appear
15:55
Speaker 4: to match your passport gender marker. So this has led
15:59
Speaker 4: to some of the plaintiffs being accused of fraud, one
16:02
Speaker 4: of the plaintiffs being strip searched, other plaintifsts facing all
16:06
Speaker 4: sorts of problems as they've tried to cross borders. So,
16:09
Speaker 4: for one, the Supreme Court's kind of casual remark that
16:12
Speaker 4: this is as insignificant as somebody's sort of national origin
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Speaker 4: arch place of citizenship is just untrue. In addition, the
16:22
Speaker 4: country of birth is not anything that affects somebody when
16:26
Speaker 4: they're using their passport and passing through security. But the
16:29
Speaker 4: gender marker is used to check accuracy, and so even
16:33
Speaker 4: on its face, the Supreme Court's analysis is wrong. The
16:37
Speaker 4: Supreme Court's description, I can't really call it analysis. The
16:40
Speaker 4: Supreme Court statement is wrong, and a dissent for Justice
16:44
Speaker 4: Jackson points that out as well.
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Speaker 2: The Court also found that the administration is likely to
16:49
Speaker 2: win on the merits, and the administration faced irreparable injury.
16:54
Speaker 2: I'm not sure where the irreparable injury is since this
16:57
Speaker 2: policy is a new one that's changing what's been in place.
17:02
Speaker 2: But the conservative justices have found irreparable injury in almost
17:07
Speaker 2: all of President Trump's emergency requests.
17:12
Speaker 4: There is no irreparable injury in the traditional way that
17:16
Speaker 4: courts look at a reparable harm. To let me explain.
17:20
Speaker 4: When a statute comes over from Congress and is challenged
17:25
Speaker 4: in the court, it is given a presumption of constitutionality
17:29
Speaker 4: right to the court assumes it's constitutional, but sometimes plaintiffs
17:33
Speaker 4: can show actually it's on constitutional, and the court will
17:36
Speaker 4: strike it down. And there's understood to be some arguable
17:39
Speaker 4: harm to government when a statute is put on hold.
17:42
Speaker 4: But when a government policy is put on hold, like
17:46
Speaker 4: an executive order or a preference of the president, that's
17:50
Speaker 4: a different situation that is not entitled to the same
17:53
Speaker 4: presumption of constitutionality as a statute that has been passed
17:57
Speaker 4: by Congress. And the shot is just saying, well, the
18:02
Speaker 4: government is irreparably harmed by not being able to put
18:05
Speaker 4: in place its desired passport policy is akin to saying
18:09
Speaker 4: the government is irreparably harmed whenever it is stopped from
18:13
Speaker 4: doing something that it would like to do, And that
18:16
Speaker 4: is akin to having no judicial review over government actions
18:21
Speaker 4: at all, at least not at this preliminary stage. So
18:24
Speaker 4: that's a very serious problem from a sort of basic
18:27
Speaker 4: approach to constitutional analysis of executive actions.
18:31
Speaker 2: Justice Jackson wrote that the Court has once again paved
18:35
Speaker 2: the way for the immediate infliction of injury without adequate
18:39
Speaker 2: or really any justification. This is also a pattern of
18:44
Speaker 2: the Court at this point basically allowing the Trump administration
18:48
Speaker 2: anything it asked for on the emergency docket and saying, well,
18:51
Speaker 2: this is while litigation is pending.
18:53
Speaker 4: Yes, this is the twenty fourth consecutive grant of emergency
18:58
Speaker 4: relief to the government. And this process of the Supreme
19:03
Speaker 4: Court staining rulings of lower courts finding constitutional or other
19:08
Speaker 4: problems with government policies, this phenomenon of the Supreme Court
19:12
Speaker 4: repeatedly saying, oh, we're going to put those lower court
19:15
Speaker 4: rulings on hold, has had the effect of basically giving
19:20
Speaker 4: the Trump administration a free path to continue enforcing policies
19:25
Speaker 4: and taking actions that lower courts have held to be
19:30
Speaker 4: not only likely unconstitutional, but also causing irreparable harm to the.
19:34
Speaker 3: People who have been affected.
19:36
Speaker 4: So this is certainly part of a larger trend. The
19:39
Speaker 4: stricond thing about this case is that the harm to
19:42
Speaker 4: the individuals who are denied passports that accurately reflect their
19:46
Speaker 4: gender identity is stunningly clear. Another problem here is that
19:51
Speaker 4: the government is obligated anytime it changes a policy that
19:55
Speaker 4: collect information from the American people. The government is obligated
20:00
Speaker 4: under the Paperwork Reduction Act, which was passed by Congress,
20:04
Speaker 4: to spend sixty days collecting information and public comment on
20:09
Speaker 4: whether it can make this sort of a change. And
20:11
Speaker 4: of course, changing its passport rule two days after the
20:15
Speaker 4: president was inaugurated and issued his executive order is fully
20:19
Speaker 4: out of compliance with this law that is supposed to
20:22
Speaker 4: apply to all of the government's actions.
20:24
Speaker 2: As I mentioned, this order stays in place as a
20:28
Speaker 2: litigation below continues. So how much of a blow is
20:32
Speaker 2: it to the rights of transgender people?
20:35
Speaker 4: This is a tremendous blow in terms of the human cost.
20:39
Speaker 4: One only has to think about the named plaintiff, Ashton Orr,
20:44
Speaker 4: who needed to travel out of the country, needed a
20:47
Speaker 4: new passport. Ashton orders a man. He's a transgender man.
20:51
Speaker 4: The only passport he is able to get to cross
20:54
Speaker 4: borders has an S gender marker on it that reveals
20:58
Speaker 4: Ashton to be transgend and not only as he crosses
21:01
Speaker 4: the border out of the United States, but as he
21:03
Speaker 4: crosses into other countries, possibly putting him in danger of
21:08
Speaker 4: harm from other governments and now as well as our own.
21:12
Speaker 4: The harms are very serious, very painful to individuals, and
21:17
Speaker 4: also are reflective of a broader harm to people who
21:20
Speaker 4: are not transgender, which is that the government can, for
21:24
Speaker 4: irrational reasons, possibly hostile reasons, towards this group of people,
21:29
Speaker 4: or any group of people more generally, choose to withdraw
21:32
Speaker 4: passport right, choose to do any number of things that
21:36
Speaker 4: cause harm. And the Supreme Court is unwilling to say
21:40
Speaker 4: hold on government. The lower court has found a problem
21:42
Speaker 4: with this law or this new policy, and we need
21:45
Speaker 4: to hold while this case is being litigated. So there
21:48
Speaker 4: are real world problems, there are constitutional problems, There are
21:52
Speaker 4: traditional separation of power problems that we're seeing.
21:55
Speaker 2: In May, the Supreme Court allowed Trump to discharge transgender
21:59
Speaker 2: people serving in the military. In June, the Court upheld
22:03
Speaker 2: a Tennessee law that bans gender firming care for minors,
22:07
Speaker 2: and now the Court is allowing this passport policy to
22:10
Speaker 2: go into effect. In all these cases, the conservatives were
22:13
Speaker 2: in the majority and the liberals in descent. It's hard
22:17
Speaker 2: to ignore that the Court has been ruling against transgender
22:21
Speaker 2: rights at least since a case in twenty twenty.
22:24
Speaker 4: Yeah, I mean, there has been a current of policies,
22:28
Speaker 4: you know, from the Trump administration and laws at the
22:32
Speaker 4: state level that restrict the lives or try to restrict
22:35
Speaker 4: the lives of transgender people in every imaginable way, from
22:39
Speaker 4: getting identity documents to using the bathroom, to participating fully
22:44
Speaker 4: at school, to serving the country in the military, and
22:48
Speaker 4: so far, when these issues have been presented, the Court
22:51
Speaker 4: has said, it's okay to create this legal barrier. Really
22:55
Speaker 4: like a legal burden that harms transgender people. In twenty
23:00
Speaker 4: the Court took a different tack. This involved in an
23:03
Speaker 4: employment discrimination case. A transgender woman was fired from a
23:06
Speaker 4: role at a funeral home where she had served for
23:08
Speaker 4: many years, and she sued the employer, saying it was
23:12
Speaker 4: sex discrimination that she was treated differently because of her sex,
23:17
Speaker 4: being fired based on that. She is transgender, and in
23:21
Speaker 4: that case Bostock versus Clayton County, which also involved two
23:25
Speaker 4: other cases with sexual orientation discrimination at issue. In that case,
23:30
Speaker 4: the court said it is sex discrimination to buyer a
23:34
Speaker 4: transgender person because there's no way to understand this other
23:38
Speaker 4: than they're being fired because of their sex. One of
23:41
Speaker 4: the big questions before the court is that case came
23:44
Speaker 4: under Title seven, which is a federal law that prohibits
23:47
Speaker 4: sex discrimination as well as other forms of discrimination and employment.
23:51
Speaker 4: And a question is whether it's a logic of understanding
23:54
Speaker 4: sex discrimination in that Bosstoc ruling from twenty twenty is
23:58
Speaker 4: going to carry over to these other areas, or will
24:02
Speaker 4: the Court say, as it may appear to be inclined
24:04
Speaker 4: to do, oh no, that might be six discrimination, but
24:08
Speaker 4: this isn't.
24:08
Speaker 2: We'll see if the pattern holds or not, because in January,
24:12
Speaker 2: the Court is going to hear arguments on whether states
24:16
Speaker 2: can ban transgender girls and women from competing on female
24:20
Speaker 2: athletic teams. Thanks so much, Suzanne. That's Columbia Law School
24:24
Speaker 2: professor Suzanne Goldberg coming up next. The Conservative Justice is
24:29
Speaker 2: appere skeptical of a Rastafarian's religious liberty suit I'm June
24:34
Speaker 2: Grosso and you're listening to Bloomberg.
24:37
Speaker 7: It is undisputed that my client has alleged an assault
24:40
Speaker 7: that is just brazenly illegal. He was at respondent's mercy
24:45
Speaker 7: in federally funded custody when he handed them a copy
24:48
Speaker 7: of controlling precedent holding that ralupa protected his right to
24:51
Speaker 7: keep his hair long. They threw it away, handcuffed him
24:54
Speaker 7: to a chair, and shaved him bald.
24:56
Speaker 2: Damon Landor is a devout Rustafarian who hadn't cut his
25:00
Speaker 2: hair for nearly twenty years, following his faith, in which
25:04
Speaker 2: dreadlocks are a sacred symbol. When Landor was transferred to
25:08
Speaker 2: a new prison in Louisiana with just weeks left on
25:12
Speaker 2: his five month sentence, he handed a prison guard a
25:15
Speaker 2: copy of an appeals court decision that held that cutting
25:19
Speaker 2: a religious prisoner's dreadlocks violated federal law. The guard threw
25:24
Speaker 2: the ruling into the trash, and despite Landor's please, he
25:28
Speaker 2: was handcuffed to a chair and held down by two
25:32
Speaker 2: guards while a third cut his knee length dreadlocks and
25:35
Speaker 2: shaved his head. No one disputes the glaring violation of
25:39
Speaker 2: his religious rights. As justice Amy Coney Barrett noted, Look.
25:44
Speaker 8: The facts of this case are egregious.
25:46
Speaker 7: So if on the facts we were looking for a
25:48
Speaker 7: case in which there should be money damages, this is it.
25:52
Speaker 2: But it's not just about the facts. It's about the
25:55
Speaker 2: law and whether Landor can sue the guards and prison
25:58
Speaker 2: officials for damage under the Religious land Use and Institutionalized
26:03
Speaker 2: Persons Act, better known as RALUPA. The Supreme Court has
26:07
Speaker 2: repeatedly cided with religious litigants, but a majority of the
26:11
Speaker 2: Conservative justices, led by Justice Neil Gorsuch, appeared skeptical that
26:17
Speaker 2: Landor could sue for damages.
26:20
Speaker 7: The circuits are unanimously against you and have been for many, many,
26:23
Speaker 7: many years. So saying that something awful's going to happen,
26:27
Speaker 7: it's all.
26:28
Speaker 8: Whatever's happened has happened, right.
26:30
Speaker 2: And the Conservatives question whether the prison guards had been
26:33
Speaker 2: given proper notice that they could be held personally lible,
26:37
Speaker 2: but the liberal justice has said it was clear that
26:40
Speaker 2: the guards understood that. Here are Chief Justice John Roberts
26:44
Speaker 2: and Justice Sonya. So to Mayor, if you're.
26:47
Speaker 5: Hired as a prison guard in Louisiana, you don't sit down.
26:52
Speaker 5: And I don't even know if Louisiana does saying, oh,
26:54
Speaker 5: here's our agreement with the federal government, which probably goes
26:57
Speaker 5: on for how many pages, and you should look at
27:00
Speaker 5: it carefully because you're bound by it.
27:03
Speaker 8: Generally speaking, if you're a prison official, you know you're
27:07
Speaker 8: working in a prison, and you bound by law to
27:10
Speaker 8: big damages if you violate the law, do you get
27:15
Speaker 8: an out?
27:16
Speaker 2: Because what my guest is John Neezer, a professor at
27:20
Speaker 2: Notre Dame Law School and director of the school's Religious
27:23
Speaker 2: Liberty Clinic, John tell us about the law that Lendor
27:27
Speaker 2: is suing under.
27:29
Speaker 9: That act, which you know shorthand is called RELOOPA was
27:32
Speaker 9: passed in two thousand in conjunction with an act that
27:35
Speaker 9: was pasted a few years earlier, their Religious Freedom Restoration Act,
27:39
Speaker 9: and both of them sort of target the same goal,
27:42
Speaker 9: which is to, as a matter of federal statutory law,
27:45
Speaker 9: to restore a more robust set of protections for a
27:49
Speaker 9: religious exercise which previously had been available under the US Constitution,
27:55
Speaker 9: but then siminal case in nineteen ninety sort of restricted
27:59
Speaker 9: some of those as a matter of constitutional law, and
28:01
Speaker 9: then Congress acted to restore them as a matter of
28:03
Speaker 9: statutory law.
28:05
Speaker 2: So RALUPA was designed to protect the religious rights of inmates.
28:11
Speaker 2: What's the problem with landor using it here?
28:13
Speaker 9: So RALUPA focuses on two areas of state and local
28:17
Speaker 9: government activity. One is in land use, you know, decisions
28:20
Speaker 9: about how you can use your property. And then the
28:22
Speaker 9: one relevant here is about religious exercise and jails and prisons.
28:26
Speaker 9: And so there's no doubt that the law RELUPA protects
28:31
Speaker 9: mister Landor's rights here. He's a state prisoner and so
28:34
Speaker 9: therefore safeguards is right while incarcerated to exercise his religion.
28:39
Speaker 9: And the only question in this case is one of remedies.
28:42
Speaker 9: So the effects are egregious. I don't think anyone really
28:45
Speaker 9: doubts that while he was in prison his rights were
28:49
Speaker 9: blatantly violated. He's a Rastafarian, which among other things, requires
28:52
Speaker 9: him not to cut his hair. He actually had a
28:54
Speaker 9: judicial decision when he entered the prison that held the
28:57
Speaker 9: prison policy requires, you know, they normally require forced shaving
29:02
Speaker 9: of all the inmates hair. He h had a decision
29:04
Speaker 9: saying that couldn't be enforced against Rostafarians like him, But
29:07
Speaker 9: the guards literally threw away that decision hand kept him
29:09
Speaker 9: to a chair and shaved his head anyway, So there's
29:11
Speaker 9: no doubt his rights were violated, and the question now
29:14
Speaker 9: is only what sort of remedies does RELUPA allow for
29:18
Speaker 9: him to address that violation.
29:20
Speaker 2: Justice Katanji Brown Jackson read from Reloopa and said, it
29:24
Speaker 2: seems pretty clear. And five years ago the Supreme Court
29:28
Speaker 2: unanimously ruled that the sister statute, the Religious Freedom Restoration Act,
29:34
Speaker 2: permits money damages against federal officials. In that case, Muslims
29:38
Speaker 2: were allowed to sue over their inclusion on the FBI's
29:42
Speaker 2: no fly list. So why doesn't that analysis work for
29:46
Speaker 2: the law here Reloopa.
29:48
Speaker 9: Yeah, So the legal question out of heart is a
29:50
Speaker 9: pretty technical one of congressional power. So what both REFRA
29:54
Speaker 9: and RALUPA, what these laws allow is for someone who's
29:57
Speaker 9: been injured, whose rights have been violated, to a lawsuit
30:00
Speaker 9: in federal court against those who cause the violation. The
30:04
Speaker 9: statute the words of the law allow you, in that
30:06
Speaker 9: lawsuit to get all appropriate relief. So then the whole
30:10
Speaker 9: question becomes, well what does Congress mean by appropriate relief?
30:13
Speaker 9: One thing that's undisputed is appropriatelyef certainly includes a judicial
30:17
Speaker 9: order that would prevent an ongoing violation of religious rights.
30:21
Speaker 9: So if the jail were continuing to threaten to violate
30:24
Speaker 9: mister Landorre's rights, say they are shaving his head every week,
30:28
Speaker 9: you can get a court order telling them to stop
30:29
Speaker 9: doing that. The question that is, as you just touched
30:31
Speaker 9: on there is but what about one time harms? What
30:34
Speaker 9: about harms that aren't ongoing? They're over now? How do
30:37
Speaker 9: you remedy those? Does the law allow you to get,
30:39
Speaker 9: you know, monetary damages, which would be the normal way
30:41
Speaker 9: in a lawsuit if you've been harmed, The normal recourse
30:45
Speaker 9: in the law is you're able to get monetary damages
30:48
Speaker 9: to get money to help in some way remedy or
30:51
Speaker 9: repair that harm. But the question here is is RELOPA
30:54
Speaker 9: allow that you're right riff for out of the Sister's
30:55
Speaker 9: statue was held to allow monetary damages, and the question
30:59
Speaker 9: of well RELUPA allow the same turns out a very
31:02
Speaker 9: particular idea of the congressional power issue here, which is
31:06
Speaker 9: Congress's use of its spending power. Does the spending clause
31:10
Speaker 9: require something more for a statute to authorize monetary damages?
31:15
Speaker 9: Does appropriate relief clearly enough convey that when a state
31:19
Speaker 9: accepts federal spending it might open itself up or open
31:23
Speaker 9: its officers up to suits for money damages.
31:26
Speaker 2: Did it seem fairly apparent that most of the conservative
31:30
Speaker 2: justices thought that lender couldn't sue for money damages under
31:34
Speaker 2: the statute.
31:35
Speaker 9: I don't know how clear it is, but I do
31:37
Speaker 9: think a number of justices certainly express skepticism about that.
31:40
Speaker 9: There's a couple different things going on. One is, what
31:42
Speaker 9: does the statute mean? You know, what does appropriate relief
31:45
Speaker 9: mean in context of laws like this the statute itself,
31:48
Speaker 9: is it clear enough that it allows monetary damages? And
31:51
Speaker 9: then the other is, well, okay, even if it is,
31:53
Speaker 9: does the Constitution let Congress do that through a spending
31:55
Speaker 9: clause law like this? And several justices I think express
31:58
Speaker 9: some skepticism on one or both of those questions. But
32:00
Speaker 9: I think this skepticism all came back to a similar idea,
32:03
Speaker 9: which is, spending clause legislation opens up money for state
32:07
Speaker 9: governments to take part in federal programs or to receive
32:11
Speaker 9: federal subsidies for different types of things. Here jails and prisons,
32:14
Speaker 9: and the federal government can attach conditions to those, and
32:16
Speaker 9: the Court's concern is that states are coming into that
32:20
Speaker 9: bargain with their eyes open, that they understand the conditions
32:23
Speaker 9: they're agreeing to. It's one of notice. I don't think
32:25
Speaker 9: it's so much about whether it would make sense to
32:28
Speaker 9: apply these substantive religious rights in prison. And everyone agrees
32:32
Speaker 9: actually that the prison and its officials are bound substantively
32:35
Speaker 9: to protect the rights that reloopid demands. But what some
32:38
Speaker 9: of the justices in the court were really struggling with
32:40
Speaker 9: was how clear was it. Were individuals who work within
32:42
Speaker 9: those prisons really on notice that by signing up to
32:45
Speaker 9: work in the prison they might be sued for things
32:47
Speaker 9: like this.
32:48
Speaker 2: It seemed like a lot of the conservative justices didn't
32:51
Speaker 2: think that there was notice here. At one point, Chief
32:55
Speaker 2: Justice John Roberts said, it's a legal fiction to say
32:59
Speaker 2: that a prison guard knows what he's signing up for here.
33:03
Speaker 2: But the liberals, particularly just as Soda Mayor said, when
33:07
Speaker 2: you sign up to work as a corrections official in
33:11
Speaker 2: a prison, doesn't that mean you're signing up to obey
33:14
Speaker 2: the law? And you know, the act here was so
33:17
Speaker 2: obviously brutal, and the guard took the law that was
33:21
Speaker 2: handed to him and not only ignored it, but threw
33:24
Speaker 2: it in the garbage.
33:25
Speaker 9: I agree with that, and I think mister Landor has
33:27
Speaker 9: very good argument here. Right. So it's of course true,
33:30
Speaker 9: as the Chief Justice pointed out, that there's something of
33:32
Speaker 9: a legal fiction here, but that's you know, these legal
33:34
Speaker 9: fictions run throughout the law. We're all presumed to have
33:37
Speaker 9: knowledge and be aware of the contents of criminal law.
33:41
Speaker 9: You know, is any given person on the street actually
33:43
Speaker 9: aware of everything that's prohibited by federal or state criminal law. No,
33:46
Speaker 9: of course, not right, but ignorance of the law, even
33:48
Speaker 9: if actually true, we don't allow that ignorance of the
33:50
Speaker 9: law to be excuse to defy it.
33:52
Speaker 3: Right.
33:53
Speaker 9: And so you know, just as sod my Or's point here,
33:55
Speaker 9: which is echoed throughout the argument by mister Landor's council,
33:59
Speaker 9: is that, at least in this context where we're talking
34:02
Speaker 9: about people who sign up to work in a prison
34:04
Speaker 9: or a jail, these officers, we all the time presume
34:07
Speaker 9: they understand their obligations under federal law, under constitutional law,
34:12
Speaker 9: under state law, and they understand that if they violate
34:15
Speaker 9: those obligations, these demands that they protect our rights, that
34:18
Speaker 9: they might be sued for it. And again I don't
34:20
Speaker 9: think there's any doubt in the case, and I think
34:22
Speaker 9: the state actually concedes that as a substantive matter, the
34:25
Speaker 9: state and its officers were bound to follow the demands
34:30
Speaker 9: of RELOOPA. So then the only question is, well, if
34:31
Speaker 9: they knew they had to follow RELOOPA, they knew they
34:33
Speaker 9: could get sued under RELOOPA, they knew they could be
34:36
Speaker 9: held subject to injunctive relief under RELOOPA. Do they also
34:40
Speaker 9: need to know that they could be sued for money
34:42
Speaker 9: under aloopa. Well, even if that's a separate question, I
34:46
Speaker 9: agree with mister Landor here, that's not a very hard one,
34:49
Speaker 9: because again, as soon as you're understanding that you might
34:51
Speaker 9: be sued as an individual, the normal recourse is that
34:55
Speaker 9: if you're found to have violated the law, you might
34:58
Speaker 9: have to pay money damage.
35:00
Speaker 2: And do you have a feel for how the court
35:02
Speaker 2: might come out in this case?
35:04
Speaker 9: No, I don't have a feel. I mean, I think
35:05
Speaker 9: it's a complicated case. It was obvious to me that
35:08
Speaker 9: in the argument a lot of the justices were really
35:10
Speaker 9: struggling with how to draw these lines and these concerns
35:13
Speaker 9: over notice and keeping Congress from overstepping its enumerated powers,
35:18
Speaker 9: which is, which itself is a rights protecting idea typically,
35:21
Speaker 9: but with the recognition that here is a seminal piece
35:24
Speaker 9: of legislation to protect religious freedom, a piece of legislation
35:27
Speaker 9: in the Court has repeatedly been sure to safeguard and uphold.
35:32
Speaker 9: And I think there's real tensions with how best to
35:35
Speaker 9: weigh those, you know, competing sort of priorities of the court.
35:39
Speaker 9: So I do think the case is harder than it
35:43
Speaker 9: might appear at first blush. But I also would hope
35:46
Speaker 9: that the Court would ultimately align the reading of the
35:48
Speaker 9: two statutes, and it would be at least a somewhat
35:50
Speaker 9: unusual result if refer and Raulupa, these sister statutes passed
35:53
Speaker 9: for the same purposes, allowed different remedies, and it would
35:56
Speaker 9: leave people like mister Landor without any recourse to remedy
36:00
Speaker 9: what all agree was an egregious violation of his rights.
36:03
Speaker 9: And it would leave no ability to hold the individuals
36:07
Speaker 9: who literally threw away a copy of a court decision
36:11
Speaker 9: and to hold them accountable, And I think that would
36:12
Speaker 9: be regrettable. Certainly.
36:14
Speaker 2: I admit I initially thought that the Court took this
36:17
Speaker 2: case to reverse the lower courts and allow land Or
36:20
Speaker 2: to sue for damages, especially considering how solicitous the justices
36:25
Speaker 2: usually are about protecting religious liberties and the facts here.
36:30
Speaker 2: How often do you have the plaintiff showing the law
36:33
Speaker 2: to the defendant and the defendant just tossing it out.
36:37
Speaker 2: You can't make these things up.
36:38
Speaker 9: I mean, I agree, and I think at the end
36:40
Speaker 9: of the day, the simplest reading of the case is
36:43
Speaker 9: what you're saying. This is a blatant violation of this
36:46
Speaker 9: man's rights. It doesn't seem real. They literally threw away
36:48
Speaker 9: the decision. They handcuffed him, they forcibly shaved him, and
36:53
Speaker 9: now the claim is brought under a law that's nearly
36:55
Speaker 9: identical to him that the court just said allows lawsuits
36:59
Speaker 9: for damages. This simplest thing is, yeah, you take it
37:03
Speaker 9: to reverse and do to make clear. Yes, RALUPA is
37:05
Speaker 9: just like REFERRA. It allows these damages, and I think
37:07
Speaker 9: that's the right outcome. I do agree though that from
37:10
Speaker 9: the argument, it seems the court is certainly struggling with
37:12
Speaker 9: more complications than that.
37:13
Speaker 2: Thanks so much, John. That's professor John Meser of Notre
37:17
Speaker 2: Dame Law School. And that's it for this edition of
37:20
Speaker 2: the Bloomberg Law Show. Remember you can always get the
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