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Supreme Court Reform & Nike Sues Sneaker Artist · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:10
Speaker 2: The Court is mired in a Christis of ethics. These
0:14
Speaker 2: scandals involving the justices have caused public opinion to question
0:18
Speaker 2: the Court's fairness and independence.
0:21
Speaker 1: The public's confidence in the Supreme Court has fallen to
0:24
Speaker 1: historic lows following a series of controversial rulings that overturned
0:30
Speaker 1: landmark decisions on abortion rights and federal regulatory powers, and
0:35
Speaker 1: determined that former presidents have broad immunity from prosecution. So
0:39
Speaker 1: President Biden, with less than six months left in his presidency,
0:44
Speaker 1: is calling for dramatic changes to the Court that have
0:47
Speaker 1: no chance of being approved by a closely divided Congress.
0:52
Speaker 1: He's calling for doing away with lifetime appointments to the Court,
0:56
Speaker 1: an enforceable code of ethics for the justices, and a
0:59
Speaker 1: constantitutional amendment reversing that Supreme Court presidential immunity decision.
1:05
Speaker 2: We need these reforms we sort trust in the courts,
1:08
Speaker 2: preserve the system of checks and balances that are vital
1:11
Speaker 2: to our democracy. They're also common sense.
1:14
Speaker 1: Reforms, common sense, perhaps but controversial definitely. Joining me is
1:20
Speaker 1: William Traynor, Dean of Georgetown law and a constitutional history scholar.
1:25
Speaker 1: So Biden is suggesting term limits for the justices, a
1:28
Speaker 1: system in which the sitting president would appoint a justice
1:32
Speaker 1: every two years and that justice would spend eighteen years
1:35
Speaker 1: on the court. So that would give each president a
1:39
Speaker 1: chance to appoint justices. This is not a new idea.
1:43
Speaker 1: Would it require a constitutional amendment?
1:46
Speaker 3: No, this is not a new idea. The start of
1:48
Speaker 3: his administration, President Biden appointed a commission to look at
1:52
Speaker 3: the possibilities of Supreme Court reform, and this is one
1:56
Speaker 3: of the proposals that they made and it is adopted
1:59
Speaker 3: to just set it forward. So it's something that people
2:02
Speaker 3: have been focusing on for a number of years, and
2:04
Speaker 3: there's a debate about whether it requires constitutional amendments. There
2:07
Speaker 3: have never been term limits for the court, so it
2:10
Speaker 3: has always been the case that when people have been
2:14
Speaker 3: appointed to the court, they've stayed their entire life until
2:17
Speaker 3: they resigned. So it would be a new practice in
2:20
Speaker 3: the United States Constitution. And so there's a debate about
2:24
Speaker 3: whether you need a constitutional amendment to do this or not.
2:27
Speaker 3: So I think it should be constitutional because historically the
2:32
Speaker 3: duties of the Supreme Court justices have not always been
2:35
Speaker 3: the same and so this is similarly just altering what
2:39
Speaker 3: the duties of Supreme Court justices would be. But again
2:42
Speaker 3: that's something that good people debate.
2:44
Speaker 1: Yeah, some argue that the term limits proposal is at
2:47
Speaker 1: odds with Article three, which provides that justices shall hold
2:52
Speaker 1: their offices during good behavior.
2:55
Speaker 3: So one of the questions is this consisting with the
2:57
Speaker 3: original understanding? And I think it is. One of the
3:00
Speaker 3: changes that we've seen over time is Supreme pur justices
3:03
Speaker 3: are now on the court much longer than they were
3:06
Speaker 3: at the beginning. So if you look at the Washington administration,
3:09
Speaker 3: for example, the average tenure of the justices he appointed
3:13
Speaker 3: was less than eight years, whereas now the most recent
3:16
Speaker 3: departures from the court he go through death or resignation,
3:18
Speaker 3: have been about thirty years. So this is dramatically different
3:22
Speaker 3: than what was envisioned at the start. And it also
3:25
Speaker 3: means that there's a tremendous amount of luck in terms
3:28
Speaker 3: of which president controls the justices on the Court. So,
3:33
Speaker 3: for example, Jimmy Carter in four years had actually no appointment,
3:37
Speaker 3: whereas in the same period of time Donald Trump had
3:40
Speaker 3: three appointments. So one of the things that Biden's proposal
3:44
Speaker 3: would do is essentially take the luck and happenstance out
3:48
Speaker 3: of the appointments to the Court by saying that every
3:51
Speaker 3: president would have an appointment every two years. So that
3:55
Speaker 3: really would bring I think the makeup of the court
3:58
Speaker 3: much more in lign with what people determined in the
4:01
Speaker 3: presidential election. So I think those are really the dominant
4:04
Speaker 3: reasons why I think this would make sense the terms
4:08
Speaker 3: in office for so long, and it also would bring
4:11
Speaker 3: it in alignment much more with the presidential acts.
4:14
Speaker 1: It seems like there's no chance that this Congress would
4:18
Speaker 1: pass such a law. But let's say a law was passed.
4:21
Speaker 1: Would the Supreme Court then be the ultimate arbiter of
4:25
Speaker 1: whether it's constitutional or not.
4:27
Speaker 3: So it's will ultimately be the arbiter as to whether
4:30
Speaker 3: it's constitutional or not. I don't know kind of where
4:33
Speaker 3: the case that would tee it up would be, but
4:36
Speaker 3: ultimately something like this would be it's a question for
4:39
Speaker 3: the Supreme Court.
4:40
Speaker 1: Biden is also calling for a binding ethics code that
4:44
Speaker 1: would require the justices to disclose gifts, refrain from political activity,
4:49
Speaker 1: and recuse themselves from cases presenting conflicts of interest for
4:54
Speaker 1: themselves or their spouses. Now Democrats have been trying to
4:57
Speaker 1: pass an ethics code to no evail. Are there any
5:01
Speaker 1: constitutional problems with Congress passing an ethics code for the justices?
5:07
Speaker 3: Well, I don't think there's a problem with this. I
5:10
Speaker 3: think that, for example, we have binding codes of ethics
5:15
Speaker 3: for people in the executive pinch. It's really the same thing.
5:18
Speaker 3: Congress here would be creating an ethical framework for Supreme
5:22
Speaker 3: Court justices. So it seems to me that it's something
5:25
Speaker 3: that Congress should be able to do. But again, this
5:27
Speaker 3: is something that is debated, and there's some people who
5:30
Speaker 3: will say, for example, Justice Alito has said this would
5:33
Speaker 3: not be constitutional. So ultimately this would be a question
5:36
Speaker 3: for the Court as well.
5:38
Speaker 1: That's always the catch twenty two.
5:40
Speaker 2: You know.
5:40
Speaker 1: Alitos claimed in a Wall Street Journal injury that no
5:43
Speaker 1: provision in the Constitution gives Congress the authority to regulate
5:46
Speaker 1: the Supreme Court period, But the Constitution states that the
5:50
Speaker 1: Supreme Court's jurisdiction must be exercised under such regulations as
5:55
Speaker 1: the Congress shall make.
5:57
Speaker 3: Well, the question is whether this is the kind of
5:59
Speaker 3: regulation that the Constitution has contemplated, And again, this would
6:03
Speaker 3: be a new question the Sucreme Court has never been
6:06
Speaker 3: subject to congressional rules like this. But as a legal matter,
6:10
Speaker 3: the question is I think whether this would fall into
6:13
Speaker 3: the Constitution's text about regulations, and that's really debatable. Yeah,
6:16
Speaker 3: I think it would, but again just as Alito has
6:19
Speaker 3: said that it would not, and it would ultimately be
6:21
Speaker 3: a question for the court.
6:22
Speaker 1: I mean, what would it really do. It would stop
6:24
Speaker 1: them from accepting gifts, but it wouldn't do anything to
6:28
Speaker 1: make them less partisan in their decision making.
6:31
Speaker 3: Well, you know, the argument would be that when they're
6:34
Speaker 3: accepting gifts, you know, to fix the way in which
6:37
Speaker 3: they think about cases. So it's you know, it's it's
6:39
Speaker 3: not partisan directly. But I think underlying the idea of
6:43
Speaker 3: an ethics code is the idea that when we received gifts,
6:47
Speaker 3: it tends to color your point of view, and so
6:50
Speaker 3: the ethics code would would take that out of the equation.
6:53
Speaker 1: I don't know if he has, you know, made any
6:55
Speaker 1: very specific suggestions, but this would be enforceable.
6:59
Speaker 3: By well, I think that's a question. So what's the
7:03
Speaker 3: mechanism for enforcement. One of the suggestions that people have
7:07
Speaker 3: had is that you would put together a panel of
7:10
Speaker 3: lower court judges who would decide what's appropriate and what's
7:13
Speaker 3: not appropriate. So it would take it out of the
7:16
Speaker 3: Supreme Court deciding for its help and give it to
7:19
Speaker 3: other federal judges. So I think that's if this were
7:22
Speaker 3: to go forward, and it's not going to go forward
7:24
Speaker 3: with this Congress, but if we're to go forward in
7:26
Speaker 3: the future, I think that is the most likely framework
7:29
Speaker 3: that lower court judges would be appointed to enforce the rules.
7:33
Speaker 1: Then he's calling for a constitutional amendment to ensure that
7:36
Speaker 1: former presidents can be tried for crimes committed while in office.
7:41
Speaker 1: Amending the Constitution is virtually impossible these days. It requires
7:47
Speaker 1: approval from three quarters of the states, and that means
7:50
Speaker 1: that either political party can block an amendment.
7:54
Speaker 3: Well, it's incredibly hard, but it's incredibly hard for really
7:59
Speaker 3: for most of them and history. But I think this
8:01
Speaker 3: is really more than anything else. It does two things.
8:04
Speaker 3: One is it's a symbolic statement and it's also an
8:08
Speaker 3: indication of disapproval of the Supreme Court's decision in Trumpers
8:14
Speaker 3: of the United States. So I think it's unlikely that
8:17
Speaker 3: this would be adopted, but it still is a very
8:20
Speaker 3: powerful statement.
8:21
Speaker 1: Biden didn't include a couple of things that have been
8:24
Speaker 1: proposed at various times, one being packing the court or
8:28
Speaker 1: adding more justices to the court, and that doesn't have
8:32
Speaker 1: the legal problems that his other suggestions have. It's allowed
8:36
Speaker 1: by the constitution.
8:38
Speaker 3: That's right. Congress has the ability to establish the number
8:41
Speaker 3: of justices on the court. So right now we have nine,
8:45
Speaker 3: and we've had nine for more than one hundred and
8:46
Speaker 3: fifty years, but that's not written into the Constitution. And
8:49
Speaker 3: we've had different numbers of justices over time, so we've
8:53
Speaker 3: had its huge times and we've had as many as ten.
8:56
Speaker 3: But there's really no constitutional problem with creating more justiceship.
9:01
Speaker 3: The reason why he didn't do that is that that
9:05
Speaker 3: would feel very partisan. So for example, if you were
9:09
Speaker 3: to have three more justices that a democratic president could appoint,
9:13
Speaker 3: then there would be a point about those justices. It
9:17
Speaker 3: almost inevitably the next time you had a Republican president
9:20
Speaker 3: or Republican pyrs, it would be expanded even more. So
9:24
Speaker 3: he has proposed something that's not packing the court but
9:27
Speaker 3: is really designed to be i think nonpartisan, to get
9:32
Speaker 3: every president moving forward two seats, and on top of that,
9:35
Speaker 3: also to say that the justices on the court will
9:38
Speaker 3: have lifetime tenure. So it will not alter short term
9:43
Speaker 3: the court's makeup. There's six conservative justices, six Republican appointees,
9:48
Speaker 3: three liberal justices, the three Democratic appointees. It would be
9:53
Speaker 3: a very long time before you could conceivably have, under
9:57
Speaker 3: President Biden's formula, a shift towards a Supreme Court in
10:01
Speaker 3: which most of the appointees were Democratic. And in fact,
10:05
Speaker 3: if for example, Donald Trump were to win in twenty
10:08
Speaker 3: twenty four, this kind of legislation would allow him to
10:11
Speaker 3: put more justices on the court. So if you were
10:14
Speaker 3: to serve another term in office and you were to
10:16
Speaker 3: have legislation like this, you'd have two more Republican appointed
10:20
Speaker 3: justices on the Court, and that would actually shift the
10:23
Speaker 3: Court to the right. So the proposal is not one
10:27
Speaker 3: that's partisan. It's really one about establishing a framework for
10:30
Speaker 3: the Court moving forward.
10:32
Speaker 1: Coming up next on the Bloomberg Lawn Show, I'll continue
10:34
Speaker 1: this conversation with Dean William Trainer of Georgetown Law. With
10:39
Speaker 1: less than six months left in his presidency, why is
10:42
Speaker 1: President Biden asking for these reforms that have no chance
10:45
Speaker 1: of being approved by a closely divided Congress. With ninety
10:49
Speaker 1: nine days to go before election day, President Joe Biden
10:54
Speaker 1: says that extremism on the US Supreme Court is undermining
10:58
Speaker 1: public confidence in the institution, and he called on Congress
11:02
Speaker 1: to quickly establish term limits and an enforceable ethics code
11:06
Speaker 1: for the nine justices. He also called on lawmakers to
11:10
Speaker 1: ratify a constitutional amendment limiting presidential immunity. I've been talking
11:16
Speaker 1: to William Traynor, dean of Georgetown Law and a constitutional
11:19
Speaker 1: history scholar. Before the break. We were talking about some
11:22
Speaker 1: of the proposals to reform the Supreme Court that President
11:26
Speaker 1: bind did not put forward, and one of those is
11:30
Speaker 1: something called jurisdiction stripping, which is allowable under the constitution. Right.
11:36
Speaker 3: Congress has substantial control over the jurisdiction of the Court,
11:40
Speaker 3: so at very times in the past it's taken certain
11:43
Speaker 3: issues away from the Supreme Court, and that's what we
11:45
Speaker 3: call jurisdiction striven. But that's not something that his provisions
11:50
Speaker 3: or his proposals called for, and I think that's really
11:53
Speaker 3: not been something that has been at the top of
11:56
Speaker 3: the genus. His proposals really track the things that people
11:59
Speaker 3: are because got there some kind of expansion of the court,
12:03
Speaker 3: some kind of ethics code. And then also in the
12:05
Speaker 3: wake of Trump versus the United States, a constitutional amendment
12:08
Speaker 3: that would lead to a different result, and that would
12:11
Speaker 3: provide that presidents can be prosecuted, which again is before
12:14
Speaker 3: the division Trump versus the United States, That's been something
12:17
Speaker 3: that has been assumed throughout American history. You know, I
12:21
Speaker 3: worked on the ran Contra investigation and the focus was
12:24
Speaker 3: on whether President Reagan was guilty of criminality, and during
12:29
Speaker 3: the course of that investigation, there was really no argument
12:32
Speaker 3: that you shouldn't be considering presidential criminality. The same thing
12:35
Speaker 3: in water Day. So this is really the Trump versus
12:38
Speaker 3: United States decision is something that really represents the departure
12:42
Speaker 3: from something that has been assumed to be the case
12:45
Speaker 3: really all the way back to the times of the Founders.
12:48
Speaker 1: What do you make of the fact that, for example,
12:51
Speaker 1: in Trump the United States, and in several cases where
12:56
Speaker 1: the conservative majority has ignored president taking away the Chevron
13:02
Speaker 1: doctrine of course, eliminating Roe v. Wade. I mean, do
13:05
Speaker 1: you think that the conservative justices feel no restraint right
13:08
Speaker 1: now that even the Chief Justice, you know, he used
13:11
Speaker 1: to talk about justices not being politicians. We get Amy
13:15
Speaker 1: Cony Barrett talk about justices they're not politicians in robes,
13:19
Speaker 1: but they're making some really radical decisions that paint them
13:24
Speaker 1: as politicians and robes.
13:26
Speaker 3: Well. One of the things that we're seeing right now
13:28
Speaker 3: is that the Supreme Court is breaking with precedent in
13:34
Speaker 3: major cases. So the doctrine that the Court normallythologies called
13:39
Speaker 3: stuary decisives, which means once you've decided something that's sick.
13:44
Speaker 3: What we're seeing in recent years is the Court is
13:47
Speaker 3: overturning a lot of physicians that have been well established
13:51
Speaker 3: for a long time. So we talked about the Chevron doctrine.
13:55
Speaker 3: We've seen that also in the context of affirmative actions.
13:58
Speaker 3: We saw that in the context of abortion. And the
14:02
Speaker 3: logic of this is for conservative members of the Court
14:06
Speaker 3: that they're really originalists. They focused on the original understanding
14:09
Speaker 3: Constitution and they're taking the position that if the original
14:14
Speaker 3: understanding says something, then you follow the original understanding, that
14:18
Speaker 3: not not what the precedent is. So that's why, in
14:23
Speaker 3: really important case, that's the case we're seeing long established
14:28
Speaker 3: decisions being overturned against Roe, affirmative action, the Chevron doctrine.
14:35
Speaker 3: But they're also not all in alignment. So for example,
14:38
Speaker 3: the Chief Justice is more respectful of precedent. So in
14:42
Speaker 3: the Dobs case, he actually was a concurrence, he would
14:46
Speaker 3: not have overturned Row. So there's a split among the
14:50
Speaker 3: conservative justices on the Court about the extent to which
14:54
Speaker 3: they respect precedent.
14:55
Speaker 1: What's your take on originalism, because it seems as if
14:58
Speaker 1: you can pick a lot of different things from history
15:01
Speaker 1: and it just depends on what you pick.
15:03
Speaker 3: Well, I'm an originalist, and I think that it's very
15:07
Speaker 3: powerful to say that the Constitution should be understood with
15:10
Speaker 3: regard to what the original understanding was. That's what we
15:13
Speaker 3: the people adopted. I disagree with the Court in a
15:16
Speaker 3: lot of these cases because I don't think they're getting
15:19
Speaker 3: the original understanding right. So in Trump versus the United States,
15:23
Speaker 3: for example, I think the founders were clear that a
15:26
Speaker 3: president could be prosecuted. So Trump versus the United States
15:30
Speaker 3: is not an original opinion. Actually, see Justice Robertson his
15:33
Speaker 3: opinion says there's really no obvious original understanding answer there is,
15:39
Speaker 3: So I think in a lot of these cases you
15:42
Speaker 3: get a very different result if you follow the original
15:45
Speaker 3: understanding this and in fact got the history right. Because
15:48
Speaker 3: I think in case after case, what we're seeing is
15:51
Speaker 3: an original court actually is not getting the history right.
15:55
Speaker 1: During his term, Biden resisted calls from progressive to seek
16:01
Speaker 1: reform to the Supreme Court. Why now with six months
16:05
Speaker 1: left in his.
16:07
Speaker 3: Term, Well, I think he wants to make a statement
16:10
Speaker 3: as his presidency is drawing to a close that he
16:14
Speaker 3: thinks the Supreme Court is off the rails in a
16:18
Speaker 3: lot of crucial areas. And I think he didn't act
16:21
Speaker 3: before now because this is cumulative. You know, what he's
16:25
Speaker 3: seeing over time is there are more and more decisions
16:28
Speaker 3: in which the Court is departing from the original understanding
16:32
Speaker 3: or departing from precedent. And I think Trump versus the
16:35
Speaker 3: United States might have been the trigger for him. That
16:38
Speaker 3: is a decision where I think he would say that
16:41
Speaker 3: the Court has taken a position that's really at odds
16:45
Speaker 3: with principles of the rule of law, and some steps
16:49
Speaker 3: has to be taken to address that. At the same time,
16:51
Speaker 3: I think it's chose a tremendous amount of restraint because
16:55
Speaker 3: what the rest of us were pushing for when he
16:57
Speaker 3: came into office and have been pushing throughout expanding the
17:01
Speaker 3: number of justices, and he hasn't done that. He's gone
17:04
Speaker 3: for with something that's I think both more nuanced and
17:08
Speaker 3: more respectful of partisan balance. It's really much more nonpartisan
17:12
Speaker 3: because it would give to every president to appointments for
17:15
Speaker 3: every term. So that's that's not a partisan result, but
17:18
Speaker 3: it does reflect the idea that we should move away
17:21
Speaker 3: from that kind of thirty years on the court, which
17:24
Speaker 3: is what we're seeing now, and move to something that
17:27
Speaker 3: is much more less I think with the founders and visions.
17:30
Speaker 1: As you've mentioned, none of these proposals are going to
17:34
Speaker 1: go through this Congress. And even if Democrats won control
17:39
Speaker 1: of Congress and the White House next year, Republicans would
17:42
Speaker 1: still be able to fill abuster. So I mean, is
17:45
Speaker 1: there anything that can be done about the Supreme Court?
17:49
Speaker 1: Anything practical?
17:51
Speaker 3: I think statements matter. I think statements matter, and what
17:56
Speaker 3: President Biden has done is made statements about term limits.
18:02
Speaker 3: He's made a statement about judicial ethics, and he's made
18:06
Speaker 3: a statement about the Trump versus the United States decisions.
18:09
Speaker 3: And when he does that, it really all just the dialogue.
18:13
Speaker 3: It brings issues to the four. So we're talking about
18:17
Speaker 3: term limits. The reason why we're talking about term lemits
18:19
Speaker 3: is because of what President Biden has done. And I
18:24
Speaker 3: think that that the popular dialogue, I think does affect
18:31
Speaker 3: the way in which some decisions are decided. So we'll
18:34
Speaker 3: see you moving forward if this has any effects. But again,
18:37
Speaker 3: I think the idea is that it conveys to the
18:40
Speaker 3: Court the idea that they have moved out of alignment
18:44
Speaker 3: with you know, what they should be doing, and if
18:47
Speaker 3: they're very serious concerns that are widespread about the Court's path.
18:52
Speaker 3: So you know, I think it's a long term effect.
18:55
Speaker 3: It's not going to lead to new legislation. It's not
18:57
Speaker 3: going to lead to a new constitutional amendment. But one
19:00
Speaker 3: of the things that Justice Brier would say is that
19:03
Speaker 3: the Court should not have to pay attention to the
19:05
Speaker 3: temperature of the day. It should pay attention to the
19:08
Speaker 3: climate at the time. And what President and Biden is
19:11
Speaker 3: trying to do is to make a statement about what
19:13
Speaker 3: the climate of the times is.
19:14
Speaker 1: Republicans have been playing the long game, the very long
19:18
Speaker 1: game as far as the Supreme Court, which has resulted
19:23
Speaker 1: in this conservative super majority on the Court, and it
19:27
Speaker 1: seems the Court has always been more important to Republicans
19:30
Speaker 1: in presidential elections. Are these controversial decisions a wake up
19:35
Speaker 1: call for Democrats? Will the Court now be an issue
19:38
Speaker 1: for Democrats in the presidential election.
19:42
Speaker 3: Well, I think it will be a point in the
19:44
Speaker 3: presidential election. I think what President Biden has done is
19:48
Speaker 3: to make this issue really front the center. So for
19:52
Speaker 3: many years, Republican presidential candidates I've argued, if you elect me,
19:58
Speaker 3: I will appoint justices who will overturn Row, and that
20:01
Speaker 3: was always the biggest issue. Democratic presidential candidates try to
20:06
Speaker 3: argue that they would shape the Supreme Court, but it
20:09
Speaker 3: never really got any political win. So I think that
20:13
Speaker 3: what we're seeing now is first of all, that there's
20:16
Speaker 3: a real popular movement, and I think it could be
20:19
Speaker 3: a factor in the election for the first time. I
20:22
Speaker 3: think it could be a factor that would cut in
20:25
Speaker 3: favor of Vice President Harris. She in particular, she's making
20:30
Speaker 3: an abortion a front and center issue, and I think that,
20:34
Speaker 3: you know, that's something that Democrats have not been able
20:37
Speaker 3: to do successfully in the past. So this is the
20:40
Speaker 3: first time, I think in many years in which concerned
20:44
Speaker 3: about the Court actually would cut in favor of the
20:46
Speaker 3: Democratic presidential candidates other than the Republican candidates.
20:50
Speaker 1: And Annenberg Report on Public Confidence in the Courts finds, quote,
20:55
Speaker 1: the withering of public confidence in the courts, and every
20:58
Speaker 1: pole you see shows that public confidence in the court,
21:03
Speaker 1: whatever the numbers are, they're very low, and they're always
21:05
Speaker 1: trending lower. Has there been another time in our history
21:09
Speaker 1: where there's been this crisis of confidence in the courts
21:12
Speaker 1: and in the Supreme Court in particular.
21:16
Speaker 3: The most prominent time in which there's been a crisis
21:19
Speaker 3: of confidence in the Supreme Court was during President Franklin
21:23
Speaker 3: Roosevelt's administration, and the court struck down many crucial pieces
21:29
Speaker 3: of newbial legislation. So there was tremendous, tremendous concern about
21:34
Speaker 3: the court. Now, President Franklin Roosevelt pushed it too far,
21:38
Speaker 3: He tried to pack the court, and that generated a
21:41
Speaker 3: lot of opposition. But that's the period in which most
21:46
Speaker 3: recently we've seen incredible concern about the Supreme Court, and
21:50
Speaker 3: I think a sense that it was out of step
21:52
Speaker 3: with popular will. This is a time in which there
21:57
Speaker 3: is a concern about the Court in a way that
21:59
Speaker 3: we have not seen for almost one hundred years. So
22:04
Speaker 3: the significance of President Biden's proposals is that it's part
22:08
Speaker 3: of a focus on the court, which again I think
22:11
Speaker 3: is new within the lifetime of virtually every American.
22:14
Speaker 1: Dean, thanks so much for your insights and giving us
22:17
Speaker 1: the historical perspective as well. That's Dean William Traynor of
22:21
Speaker 1: Georgetown Law. Coming up next on the Bloomberg Law Show.
22:25
Speaker 1: Nike Fire is a warning shot to sneaker artists. I'm
22:28
Speaker 1: June Grosso and you're listening to Bloomberg. A sneaker artist
22:33
Speaker 1: known as the Shoe Surgeon built a customization empire, collaborating
22:38
Speaker 1: with global brands like Nike, Gucci, and Adidas, and a
22:42
Speaker 1: cult like social media following. Justin Bieber Drake and O'Dell
22:46
Speaker 1: Beckham Junior all wore his customized shoes and he's even
22:50
Speaker 1: started an academy where students pay up to five thousand
22:53
Speaker 1: dollars to learn the craft of shoe personalization. But not
22:58
Speaker 1: so fast, Nike. He is suing Dominic Chambron for trademark
23:03
Speaker 1: infringement and counterfeiting and asking for sixty million dollars in damages.
23:08
Speaker 1: Joining me is Zach Kertz of Sneaker and Street Where
23:11
Speaker 1: Legal Services. So Zach, I'm going to confess right up
23:14
Speaker 1: front that I don't know much about the sneaker world.
23:17
Speaker 1: Who is the shoe Surgeon.
23:20
Speaker 4: The shoe surgeon is the guy in the industry of
23:23
Speaker 4: sneakers and customization of sneakers. His name is Don Chambron,
23:27
Speaker 4: and he started a sort of as a bespoke cobbler,
23:30
Speaker 4: just doing one of one customs, and he still continues
23:33
Speaker 4: to do that. It's just he's got a bigger clientele now.
23:35
Speaker 4: He was actually in entourage, I believe he's also done
23:38
Speaker 4: shoes for Lebron, James Drake, justin Bieber, Obj, I mean,
23:44
Speaker 4: you name it. All the celebrities really want to work
23:46
Speaker 4: with him now. So if you're familiar with jewelry and
23:48
Speaker 4: watches and people say Jacob the Jeweler, he's sort of
23:51
Speaker 4: that version in sneakers. He's the guy to go to
23:54
Speaker 4: in customs and really leads in sort of creativity and
23:57
Speaker 4: custom footwear and custom apparel. He's even done for Logan
24:00
Speaker 4: Paul when he fights in the ring. He does all
24:02
Speaker 4: his equipment and his boxing shoes as well.
24:05
Speaker 1: Nike hired him several times between twenty seventeen to twenty
24:10
Speaker 1: twenty three to customize shoes, and once commissioned him to
24:14
Speaker 1: create a pair of sneakers for Lebron James encrusted with
24:17
Speaker 1: twenty four carrot gold and one hundred thousand dollars worth
24:20
Speaker 1: of diamonds. Those are some sneakers, But now Nike is
24:24
Speaker 1: suing him. Why is Nike suing him?
24:27
Speaker 4: Essentially, they're saying those collaps as you mentioned, there was
24:29
Speaker 4: one in twenty seventeen, twenty eighteen for the Lebrons that
24:32
Speaker 4: you mentioned, and then another time in twenty twenty three
24:35
Speaker 4: where he did another pair of shoes for Lebron James
24:37
Speaker 4: for being the all time meeting scorer, passing Kareem. So
24:40
Speaker 4: he's been on Nike's good side and they've done a
24:42
Speaker 4: whole bunch of deals with him. But for whatever reason,
24:45
Speaker 4: they decided that what he's been doing now, such as
24:48
Speaker 4: you know, creating these customs and opening up his own
24:51
Speaker 4: surgeon academy where he's teaching others to customize sneakers, they
24:54
Speaker 4: thought that that was a little too far, and they're
24:56
Speaker 4: claiming that it was without their approval and that he should.
24:59
Speaker 1: Have known that customizing sneakers. Is there any problem with
25:04
Speaker 1: intellectual property rights if you customize a brand sneaker?
25:07
Speaker 4: I guess there are people on both sides of the
25:09
Speaker 4: coin there. I believe that the answer is no. I
25:11
Speaker 4: think that the first sale doctrine essentially allows you to
25:15
Speaker 4: you know, resell or customize even another brand's trademarks. Legally,
25:20
Speaker 4: there are a few exceptions to that, specifically, you know,
25:22
Speaker 4: if it's materially altered, and that's one of the areas
25:25
Speaker 4: that these custom sneaker cases come down to. If this
25:28
Speaker 4: was materially altered enough, and you know, there's case law
25:31
Speaker 4: on that, and it really doesn't require too much to
25:34
Speaker 4: be materially altered. But the way I see it is
25:37
Speaker 4: this is really just a form of expression of creative expression.
25:39
Speaker 4: And if I purchase a pair of shoes and I
25:41
Speaker 4: want to color on them, and if someone does a
25:43
Speaker 4: better job coloring on them than me, and I pay
25:46
Speaker 4: them for that service, there was really nothing wrong. But
25:48
Speaker 4: there should be no trademark confusion. I know what I'm doing,
25:50
Speaker 4: I know who I'm doing it with.
25:52
Speaker 1: But is Nike saying more than that? Is Nike saying
25:55
Speaker 1: that he's actually created counterfeit Nike sneakers.
25:59
Speaker 4: They are just saying one that there are these infringing
26:02
Speaker 4: new shoes, and they're claiming that those are customized shoes,
26:05
Speaker 4: meaning someone purchased a valid, authentic Nike shoe and they're using,
26:10
Speaker 4: you know, the base of an authentic Nike shoe and
26:12
Speaker 4: then customizing the rest of it and making their own. Second,
26:15
Speaker 4: what Nike saying is, these are counterfit Nike shoes. It's
26:17
Speaker 4: a Nike shoe entirely from scratch.
26:20
Speaker 1: Let's take those one at a time. Let's take the counterfeit.
26:23
Speaker 1: That's clearly illegal, right.
26:25
Speaker 4: Yeah, to me, it is. And that's where I think
26:27
Speaker 4: this case lies because I know a lot of people
26:29
Speaker 4: in the sneaker industry, and I even have customs myself,
26:32
Speaker 4: and you know, most of the time when you're doing that,
26:34
Speaker 4: you're starting with a base. You know, you're starting with
26:36
Speaker 4: an authentic Nike bottom or an Adidas bottom. You have
26:38
Speaker 4: to get that mold at that bottom because those most
26:41
Speaker 4: cost a lot. It's hard to just buy authentic you know,
26:44
Speaker 4: molds and such from China, and to your point, that
26:46
Speaker 4: would be counterfeiting. But I don't think that's what's going
26:49
Speaker 4: on here. I think, you know, these are still authentic
26:51
Speaker 4: Nike mid soles and soles that they're using, and they
26:54
Speaker 4: might change up some other things there. That's turned it
26:56
Speaker 4: into a custom, which is at first second we talked about,
27:00
Speaker 4: I mean, do you have.
27:00
Speaker 1: A question in your mind about whether they're accusing him
27:02
Speaker 1: of also making counterfeit Nikes from scratch.
27:06
Speaker 4: They definitely are. I'm saying that, you know, based on
27:08
Speaker 4: my knowledge in the steaker industry, and just I don't
27:11
Speaker 4: think that that's what's going on here. But Nike is
27:13
Speaker 4: claiming that the second aspect that counterfeit Nike shoes entirely
27:16
Speaker 4: from scratch, according to the complaint, is.
27:18
Speaker 1: Nike saying that he needed the company's permission, that they've
27:23
Speaker 1: partnered before, and that should have put him on notice
27:26
Speaker 1: that he needed Nike's permission.
27:29
Speaker 4: You're right, there was a part in the complaint that
27:31
Speaker 4: discussed exactly that, the fact that the previous agreements sort
27:34
Speaker 4: of showed him the way to work to Nike, and
27:37
Speaker 4: that he should have known that these other ones are
27:39
Speaker 4: outside the limit. However, you know, the way I see
27:41
Speaker 4: that is they talk to the complaint about how they
27:43
Speaker 4: allowed these one on one customs and these smaller kinds
27:46
Speaker 4: of services and stuff as well, and I sort of
27:48
Speaker 4: see that as the same kind of thing here. You know,
27:50
Speaker 4: if you're allowing those and then you're working with Nike
27:53
Speaker 4: after that, then you know, there's sort of the same thing.
27:56
Speaker 4: If you're just giving it to the same person. You know,
27:58
Speaker 4: the line can be blurned, like to see both sides.
28:00
Speaker 4: But yes, Nike's definitely alleging that the previous agreements, he
28:04
Speaker 4: should have known that he needed making's permission.
28:06
Speaker 1: The first sale doctrine. Has that ever been tested with
28:11
Speaker 1: sneakers in court?
28:12
Speaker 4: Yeah, there actually are a couple of recent cases. There's
28:15
Speaker 4: a case where Bans to Mischief, which is a Brooklyn
28:19
Speaker 4: art based collective that also creates sneakers and other products,
28:23
Speaker 4: and they sort of just make fun of big businesses
28:25
Speaker 4: and do a lot of really good First Amendment kind
28:27
Speaker 4: of free speech and parody kind of stuff as well.
28:30
Speaker 4: And in that case, they made a shoe that looked
28:33
Speaker 4: very similar to Van's old school you know, famous black
28:36
Speaker 4: and white skates shoe, except it was distorted. It was
28:39
Speaker 4: called the Wavy Baby, and it went up and down
28:42
Speaker 4: and it was really something comical, and it even had
28:44
Speaker 4: disclaimers on the bottom of the shoe that says, you know,
28:46
Speaker 4: don't walk in this, you'll get hurt. And you know,
28:49
Speaker 4: they thought that they would have been protected by the
28:51
Speaker 4: First Amendment or the first sale doctrine, and they raised
28:53
Speaker 4: both those defenses in that case, and ultimately they ended
28:56
Speaker 4: up losing, and they're actually in appeals right now. I
28:59
Speaker 4: believe you for the peel sided advance as well for
29:01
Speaker 4: the first sale doctrine. There's a bunch of other ones
29:03
Speaker 4: that raised the first sale doctrine recently in like counterfeiting
29:06
Speaker 4: kind of cases. I know John Geiger, and there's another
29:08
Speaker 4: case called Nike versus Customs by a Lean, and that
29:12
Speaker 4: would be more applicable here, I think because they toured
29:15
Speaker 4: did the same thing. They used Nike shoes and they
29:17
Speaker 4: painted butterflies on them and did their own custom art
29:20
Speaker 4: and they sold them. However, in that complaint that there
29:23
Speaker 4: are documents and evidence that these people were purchasing fake
29:27
Speaker 4: Nike shoes and not Nike shoes. A similar first sale
29:29
Speaker 4: defense was raised in that one, and you know that
29:32
Speaker 4: one ended up settling, so we didn't really get any
29:34
Speaker 4: presages on it. But they had a similar defense and
29:37
Speaker 4: they did customs, except with that one it was unauthentic
29:40
Speaker 4: Nikes that they were allegedly using.
29:42
Speaker 1: What about his you know this academy where he's teaching people,
29:46
Speaker 1: what is he actually teaching them there?
29:47
Speaker 4: Do you know he does a bunch of academies. He
29:49
Speaker 4: has won in LA and one in New York, and
29:52
Speaker 4: there's also even online classes, and essentially he's really just
29:55
Speaker 4: teaching the people how to be customizes themselves, how to
29:58
Speaker 4: make a shoe. To make a shoe, you got to
30:01
Speaker 4: do dcon and recon, so essentially they're you know, taking
30:05
Speaker 4: apart shoes and building up new shoes. And Nike in
30:08
Speaker 4: the complaint was a legend that this was an illicit
30:10
Speaker 4: empire of infringement. He was teaching people to you know,
30:14
Speaker 4: infringe on Nike trademarks. When I think that's very craftly
30:17
Speaker 4: worded by their lawyers. Essentially, you know, there are all
30:20
Speaker 4: these kind of sneaker customization shops and sneaker education classes
30:25
Speaker 4: out there in the world. That's essentially what he's doing.
30:27
Speaker 4: He's just teaching you how to build up a shoe
30:30
Speaker 4: and rebuild a shoe. It's just sometimes he's usally a
30:32
Speaker 4: Nike shoe as an example, you.
30:34
Speaker 1: Know, looking at this from outside the sneaker world, if
30:37
Speaker 1: he's showing people how to take a Nike shoe apart
30:41
Speaker 1: and then make another shoe from the Nike base, that
30:45
Speaker 1: seems to me like it's infringement.
30:47
Speaker 4: Not necessarily, there are a lot of factors that go
30:49
Speaker 4: into infringement, and I mean actual confusion is one of
30:53
Speaker 4: the big ones. And you know, if you're purchasing a
30:56
Speaker 4: class from him for whatever the price may be, from
30:59
Speaker 4: five hundred bucks to five thousand dollars, and you're building
31:02
Speaker 4: a shoe yourself, you're not going to be confused.
31:04
Speaker 3: You know what you're.
31:05
Speaker 4: Doing, and you know you know you're building your own
31:07
Speaker 4: Nike shoe and most of the time you're keeping that
31:09
Speaker 4: for personal you know, you're not reselling that or anything.
31:12
Speaker 4: So I think there's arguments to be made about actual confusion.
31:16
Speaker 4: And he's just so big in the industry that that
31:18
Speaker 4: people know who he is and on his shoes and
31:21
Speaker 4: in his class it has his trademark logos and you
31:24
Speaker 4: know everything that he uses as well. So I think
31:26
Speaker 4: those are also other factors that help you avoid any
31:29
Speaker 4: type of confusion. And that's really one of the most
31:31
Speaker 4: important things here. Trademark infringement and trademarks in general just
31:35
Speaker 4: meant to be source indicators. And that's sort of what
31:37
Speaker 4: Nike's saying here, this thing that you know, when he
31:40
Speaker 4: makes his shoes, people are confused. If it's a Nike,
31:42
Speaker 4: you're a surgeon and you know, his name is just
31:44
Speaker 4: so big in the industry now, so if you see
31:47
Speaker 4: his logo on the shoe, then you're going to essentially
31:49
Speaker 4: know it's a custom shoe, which is different than you know,
31:52
Speaker 4: a regular Nike shoe, and it's a form of expression.
31:55
Speaker 1: But the court that heard this the one case didn't agree.
31:59
Speaker 4: With that exactly. I mean that case was a little
32:01
Speaker 4: different in such, but yeah, I mean people equate this
32:04
Speaker 4: to cars. You know, if I buy a Honda and
32:06
Speaker 4: I put a mod kid on it, HANDA going to
32:08
Speaker 4: come after me and say, hey, you can't do that.
32:10
Speaker 4: And there are some companies that actually do go after
32:13
Speaker 4: people for similar kind of things. Famous is a Ferrari case.
32:17
Speaker 4: It didn't get litigated, but there's a DJ named dead
32:20
Speaker 4: Now and he put a rainbow kind of graphic effect
32:23
Speaker 4: on one of his Ferraris and he's used it everywhere
32:27
Speaker 4: he went, you know, when he went to parties, and
32:28
Speaker 4: it got named the Perrari just because there was a
32:31
Speaker 4: cat on the side of it. And Ferrari didn't like that,
32:34
Speaker 4: so they sent him a season assists and they essentially said,
32:37
Speaker 4: you know, don't use it anymore, take it apart, or
32:40
Speaker 4: we're going to come after you, and he listened to him.
32:42
Speaker 4: He ended up stripping all the details and selling the car.
32:44
Speaker 4: And there are other cases that actually have been litigated
32:47
Speaker 4: that's sort of similar. So it's just crazy to hear,
32:50
Speaker 4: you know, the kind of reefs or control that these
32:52
Speaker 4: companies have on the products after market.
32:55
Speaker 1: And the sneaker surgeon is putting his own trademark on
32:59
Speaker 1: a Nike.
32:59
Speaker 4: Shoe yet most of the time of years. But to
33:02
Speaker 4: your point, that sort of helps eliminate confusion. But by
33:05
Speaker 4: people seeing that logo and saying, oh, I know who's
33:08
Speaker 4: the shoe, sursion shoe, which means it's going to be
33:10
Speaker 4: a custom shoe. He doesn't just do Nikes, you know,
33:14
Speaker 4: he does other brands as well, Adida, New Balance, you know,
33:17
Speaker 4: you name it, he does it. And to me, again,
33:19
Speaker 4: it's a form of expression. I have many custom shoes
33:21
Speaker 4: and I've really just reached out with guys and said, hey,
33:24
Speaker 4: can you create this for me? And it's sitting on
33:26
Speaker 4: my desk right here, right.
33:27
Speaker 1: Now, sneakers on the desk. It really isn't my world.
33:30
Speaker 1: So do you see this suit going to trial or
33:32
Speaker 1: do you see a settlement?
33:34
Speaker 4: You know, sneaker customization is something that's there and it's
33:37
Speaker 4: not going away. Customization in general is so big in
33:41
Speaker 4: every industry. Everyone wants to, you know, show off themselves
33:44
Speaker 4: in the form of expression, whether it's athletes on the
33:47
Speaker 4: field or the court or wherever it may be, or
33:49
Speaker 4: you know, just people like you and I. So I
33:51
Speaker 4: think the customization thing is never going away, and I
33:54
Speaker 4: think that Nike has embraced it. You know, they've been
33:56
Speaker 4: doing deals with customizers such as the Shoe Surgeon. So
34:00
Speaker 4: crazy to see that end. I don't think, you know,
34:03
Speaker 4: that's going to happen. I think Nike in their statement
34:05
Speaker 4: and even in the complaint, they sort of carved out
34:07
Speaker 4: a lane for these customizations to be done. And that's
34:11
Speaker 4: sort of what this is about. You know how big
34:13
Speaker 4: the shoe surgeons lane is going to be.
34:15
Speaker 1: So I mean, what lane do you think they've carved out?
34:17
Speaker 4: So they talked about allowing specific, one of one customizations
34:21
Speaker 4: for you know, Nike sponsored athletes, and I think that's
34:24
Speaker 4: important because these athletes probably have clauses in their contract
34:27
Speaker 4: that say you can't do this, or you can't do that,
34:29
Speaker 4: or you got to come to Nike with permission. And
34:31
Speaker 4: if they're doing a custom whether it's you know, one
34:33
Speaker 4: shoe for themselves, or they're going to wear during the game,
34:35
Speaker 4: or just shoes they're going to wear around town. Nike's
34:38
Speaker 4: going to be aware of that, and you know, that's
34:40
Speaker 4: really what Nike wants here. They want to know what's
34:42
Speaker 4: going on so they're not left out and they check
34:44
Speaker 4: everything to their exact specifications like they claim. So I
34:48
Speaker 4: think those kind of collaborations and customers will be allowed.
34:51
Speaker 4: It also mentioned in the complaint that they're happy with
34:54
Speaker 4: the shoe surgeon when he was just doing small time
34:56
Speaker 4: work as a you know, best spoke cobbler, one of
34:59
Speaker 4: ones and such. So I think think, you know, by
35:00
Speaker 4: putting out that in the complaint, and it sort of
35:02
Speaker 4: also opens up the lane as well.
35:04
Speaker 1: I've learned a lot about the world of custom sneakers.
35:07
Speaker 1: Thanks so much, Zach. That's Zach Kurtz of Sneaker and
35:11
Speaker 1: Streetwear Legal Services. And that's it for this edition of
35:14
Speaker 1: the Bloomberg Law Podcast. Remember you can always get the
35:17
Speaker 1: latest legal news by subscribing and listening to the show
35:20
Speaker 1: on Apple Podcasts, Spotify, and at Bloomberg dot com slash
35:24
Speaker 1: podcast Slash Law. I'm June Grosso and this is Bloomberg,