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Tensions Rise at Golf Course Hearing & SCOTUS Criminal Cases · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
• 0:09
  Speaker 1: The latest legal flashpoint in President Donald Trump's campaign to
• 0:13
  Speaker 1: leave his personal imprint on the nation's capital are his
• 0:18
  Speaker 1: plans to redevelop a historic Washington, D.C., golf course. The D.C.
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  Speaker 1: Preservation League is among those challenging his plans. It led
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  Speaker 1: to courtroom fireworks between a federal judge and a high-ranking
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  Speaker 1: Justice Department official today. And Judge Ana Reyes questioned the
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  Speaker 1: Trump administration's claims that the cutting down of 400 to
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  Speaker 1: 500 trees recently didn't indicate that work was moving forward
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  Speaker 1: on the project. And despite the fact that President Trump
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  Speaker 1: had announced plans on social media on Sunday, to close
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  Speaker 1: the golf course for 15 months starting on November 15th
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  Speaker 1: and redevelop it. Joining me is Bloomberg Law reporter Suzanne Moniak,
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  Speaker 1: who's outside the courthouse after a hearing that lasted all day. Suzanne,
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  Speaker 1: what was the general purpose of the hearing?
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  Speaker 2: It was a pretty broad and expansive hearing. It went
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  Speaker 2: over seven hours. The focus was about the East Potomac
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  Speaker 2: Park golf course. and what changes, if any, the Trump
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  Speaker 2: administration are considering making, the extent of those changes, and
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  Speaker 2: when they knew that they were going to make them.
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  Speaker 1: To put this into context, last week the judge was,
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  Speaker 1: I guess we could say furious, when she found out
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  Speaker 1: that 400 to 500 trees had been cut down on
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  Speaker 1: the golf course.
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  Speaker 3: That's right.
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  Speaker 2: There's been quite a few tense moments in this case.
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  Speaker 2: Judge Ana Reyes of the D.C. Federal Court was quite
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  Speaker 2: angry at the government last week during a virtual court
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  Speaker 2: hearing when she found out that they had cut down
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  Speaker 2: over 400 trees from that public park with barely any
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  Speaker 2: notice to the court. They had let her know on
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  Speaker 2: a Friday around 4.55 p.m. that tree removal was planned,
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  Speaker 2: and the next day they cut down hundreds of trees. This,
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  Speaker 2: of course, was this past weekend, over a week ago now,
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  Speaker 2: during a federal holiday weekend for Columbus or Indigenous Peoples
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  Speaker 2: Day that Monday. She was not happy about that and
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  Speaker 2: was very clear with the government that they had lost
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  Speaker 2: a lot of credibility with her in this case for
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  Speaker 2: having done that, even though she had asked throughout the
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  Speaker 2: case that they notify her before making major irreversible changes
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  Speaker 2: at the park.
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  Speaker 1: So, Suzanne, had she just asked or was there any
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  Speaker 1: kind of an order in place?
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  Speaker 2: That was part of what was at issue was that
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  Speaker 2: she had asked. She had said to the government that
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  Speaker 2: she just believed them to be acting in good faith
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  Speaker 2: and that she trusted the government and just hadn't felt
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  Speaker 2: the need to put in an order. requiring them to
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  Speaker 2: do something. That's definitely going to change. It already has changed.
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  Speaker 2: She's now ordered the government to halt tree removal through
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  Speaker 2: at least October 26. During today's hearing, she's considering a
• 2:55
  Speaker 2: request to halt tree removal for longer. And she indicated
• 2:58
  Speaker 2: during the hearing she's likely to put in place some
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  Speaker 2: kind of requirement that the government notify her a certain
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  Speaker 2: number of days in advance, notify both the court and
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  Speaker 2: the parties a certain number of days in advance before
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  Speaker 2: making major changes.
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  Speaker 1: Did the judge question Trump's social media post announcing plans
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  Speaker 1: to close the golf course for 15 months and redevelop it?
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  Speaker 2: President Donald Trump's truth social posts about the park were
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  Speaker 2: a huge focus of the hearing. Specifically, what she was
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  Speaker 2: really interested in drilling in on was just how those
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  Speaker 2: statements could be reconciled with statements that the Justice Department
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  Speaker 2: and other officials had made in this case. Namely, was
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  Speaker 2: that there was no final plan to do anything to
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  Speaker 2: the park and that there was no final agency action
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  Speaker 2: for the plaintiffs in this case to be challenging. That's
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  Speaker 2: a D.C. Historic Preservation Society and two Washington area residents.
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  Speaker 2: So the one thing the judge was really pressing the
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  Speaker 2: lawyers on was like, well, how can you reconcile that
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  Speaker 2: with the fact that we're seeing these social media posts
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  Speaker 2: from the president announcing a plan, saying that the interior
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  Speaker 2: secretary is excited to implement it and even going so
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  Speaker 2: far as to say that work will start immediately.
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  Speaker 1: And how did they answer that?
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  Speaker 2: They struggled to answer, I think could be objectively considered
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  Speaker 2: from the hearing. Essentially, the answer was that the judge
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  Speaker 2: should treat this as an executive order where the president
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  Speaker 2: is indicating an action he would like done and then
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  Speaker 2: sending it to the agencies to get it done. The
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  Speaker 2: judge seems skeptical of that explanation, given the language that
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  Speaker 2: Donald Trump used. He didn't say, I would like the
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  Speaker 2: park to close in November for these renovations, for example.
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  Speaker 2: He said it will be closing in November for these renovations.
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  Speaker 3: He said it as a fact.
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  Speaker 2: And so that certainly has come up before when the
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  Speaker 2: president tweets something or puts something on Truth Social or
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  Speaker 2: another social media platform that is not necessarily in line
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  Speaker 2: with arguments or facts that have been represented in court
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  Speaker 2: by the Justice Department.
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  Speaker 1: Is the Justice Department maintaining that the judge can't take
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  Speaker 1: the case under administrative law until there's been a decision
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  Speaker 1: by the Interior Department to move forward?
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  Speaker 2: They are arguing that there's no final agency action here,
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  Speaker 2: though I do understand their arguments to potentially be saying
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  Speaker 2: that this type of change to a golf course or
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  Speaker 2: redesign isn't one that would ever be subject to judicial review.
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  Speaker 1: And how do the plaintiffs argue against that?
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  Speaker 2: The plaintiffs, of course, argue that this should absolutely be
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  Speaker 2: subject to judicial review. They're asking the judge to step in,
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  Speaker 2: block the government from removing trees. And I mean, they,
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  Speaker 2: you know, can very easily point to Donald Trump's social
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  Speaker 2: media posts. They did submit those for the court to
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  Speaker 2: see to have be part of the record to make
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  Speaker 2: their claim that this is something that they can challenge.
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  Speaker 1: Did the government's witnesses testify that cutting down the trees
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  Speaker 1: had nothing to do with Trump and that it was
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  Speaker 1: done in accordance with a 2019 modernization plan that they
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  Speaker 1: finally got around to implementing?
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  Speaker 2: That's right. That's what we heard today from testimony from
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  Speaker 2: Gregory Wisher, deputy chief of staff at the Interior Department. He,
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  Speaker 2: as well as acting director of the National Park Service,
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  Speaker 2: both testified today. And what he said was, yes, this
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  Speaker 2: was done. This tree removal was done. pursuant to a
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  Speaker 2: 2019 cultural landscaping report that he just discovered, he said
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  Speaker 2: last month, that is being used to justify felling these trees.
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  Speaker 2: Another big question during this hearing and something we really
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  Speaker 2: saw the judge probing and something she, as you mentioned,
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  Speaker 2: indicated how she's going to find on was that perhaps
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  Speaker 2: this is not about the cultural landscape report, but maybe
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  Speaker 2: about different plans to remake this golf course as President
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  Speaker 2: Donald Trump would like to into a national championship golf course.
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  Speaker 2: So at one point, the judge asked the lawyer for
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  Speaker 2: the plaintiffs if they would be arguing that this was
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  Speaker 2: now pretextual, that they went and found the cultural landscaping
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  Speaker 2: report to justify something they already wanted to do. And yes,
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  Speaker 2: he said that he doesn't intend to make that argument.
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  Speaker 1: So she said, there's no universe in which all of
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  Speaker 1: this just coincidentally happened at the same time. There just isn't.
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  Speaker 1: I mean, did the witnesses... even under her questioning, maintain
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  Speaker 1: that this was something from 2019 that all of a
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  Speaker 1: sudden they decided to implement?
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  Speaker 2: More or less, yes, they did maintain that this had
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  Speaker 2: been done pursuant to the 2019 cultural landscape report.
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  Speaker 1: You had the third highest official of the Justice Department
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  Speaker 1: coming to this hearing. I mean, is there a reason
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  Speaker 1: why he was there, Stanley Woodward?
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  Speaker 2: That's a great question, and it's something that we've been
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  Speaker 2: really seeing as a bit of a trend under this
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  Speaker 2: administration's Justice Department that I've done some reporting on as well,
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  Speaker 2: where we're seeing politically appointed lawyers who are in the
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  Speaker 2: Justice Department's so-called front office making arguments and sometimes signing
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  Speaker 2: briefs without career attorneys. It's not unusual at all for
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  Speaker 2: political lawyers to be very involved in court cases.
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  Speaker 3: Of course.
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  Speaker 2: They might have a role in shaping arguments. Certainly, their
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  Speaker 2: names always appear on the briefs, but it's less typical
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  Speaker 2: that we would see career lawyers not being involved at all.
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  Speaker 2: In this case, of course, there is at least one
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  Speaker 2: career lawyer who was present in court today, but she
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  Speaker 2: didn't sign her name on one of the briefs that
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  Speaker 2: was submitted on Sunday night. That's something that Judge Reyes
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  Speaker 2: immediately took issue with. Hey, I received a brief last
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  Speaker 2: night with one political appointee and a very high ranking one,
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  Speaker 2: as you mentioned, Stanley Woodward, third in command of the
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  Speaker 2: Justice Department, associate attorney general. And she asked if there'd
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  Speaker 2: be any government lawyers at counsel's table willing to put
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  Speaker 2: their name on that filing as well. And literally asked
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  Speaker 2: for a show of hands. It caused quite a tense
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  Speaker 2: back and forth between her and Mr. Woodward, who said
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  Speaker 2: that that was not an appropriate ask. The man actually
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  Speaker 2: instructed his attorneys not to respond to the judge. The
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  Speaker 2: judge then said, I'm giving them a direct order, ultimately
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  Speaker 2: said that she would initially request briefing on this question,
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  Speaker 2: but then later toward the end of the hearing said
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  Speaker 2: that she'd be withdrawing that request and would not require
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  Speaker 2: the government to refile its brief with more career attorneys'
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  Speaker 2: names who were willing to put their names on it.
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  Speaker 2: But she did still lament that the brief had been filed.
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  Speaker 2: by one political appointee and said that, generally speaking, these
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  Speaker 2: briefs should be filed by the attorneys who appear in
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  Speaker 2: the case.
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  Speaker 1: Was it hostile, the exchange between Judge Reyes and Woodward?
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  Speaker 2: Hostile is a strong word. I think I would say
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  Speaker 2: that it was testy. I mean, I think the judge
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  Speaker 2: is fairly no-nonsense when it comes to these things. And
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  Speaker 2: has appeared frustrated at times with the way the Justice
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  Speaker 2: Department has handled itself in this case when it comes
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  Speaker 2: to that and other issues, including changing arguments. At one point,
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  Speaker 2: she criticized another Justice Department lawyer, also a political hire,
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  Speaker 2: Robert Stander, Environmental Division, for advancing a different argument that
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  Speaker 2: had been advanced in the past and essentially told him,
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  Speaker 2: you can't just advance a different argument when the one
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  Speaker 2: you advanced previously is no longer convenient to you. So
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  Speaker 2: we're just seeing her, I think, Judge Reyes, just be
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  Speaker 2: very direct with the government. And certainly Mr. Woodward seemed
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  Speaker 2: frustrated at times as well with those exchanges.
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  Speaker 1: The Justice Department had asked the judge to recuse herself.
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  Speaker 1: Tell us why.
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  Speaker 2: Yes, there is quite a history between Judge Reyes and
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  Speaker 2: counsel in the case at this point. On Friday night,
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  Speaker 2: Stanley Woodward had asked Judge Reyes to recuse herself from
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  Speaker 2: the case, arguing that she had demonstrated bias against the
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  Speaker 2: government based on her remarks to them during that hearing
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  Speaker 2: we discussed earlier about them cutting down trees without enough
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  Speaker 2: notice to the court. She denied that request over the
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  Speaker 2: weekend as well, late Sunday night, less than 12 hours
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  Speaker 2: before the start of the hearing, and said no, she
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  Speaker 2: would not be recusing herself. And she refuted point by
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  Speaker 2: point some of the government's claims with other remarks she
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  Speaker 2: made during the case, praising the government's work or showing
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  Speaker 2: respect for government attorneys to show that she did not
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  Speaker 2: see herself as biased in this case.
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  Speaker 1: I suppose that it didn't come up in court that
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  Speaker 1: Trump has attacked her as, quote, a crazed lunatic whose
• 10:32
  Speaker 1: courthouse tapes will reveal may be insane.
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  Speaker 2: She did not directly address that remark. She focused on
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  Speaker 2: the parts of his post that were pertinent to the
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  Speaker 2: case about when the park was closing, where this plan was,
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  Speaker 2: the status of those plans. As to the final agency
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  Speaker 2: action question and whether this could be challenged, she didn't
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  Speaker 2: make it personal.
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  Speaker 1: Where do things stand right now?
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  Speaker 2: As of now, we are waiting for the judge's decision
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  Speaker 2: and whether she's going to be blocking tree removal or
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  Speaker 2: any other activities for the duration of litigation at the
• 11:02
  Speaker 2: lower quarter while it progresses. That would be a preliminary
• 11:04
  Speaker 2: injunction in early-ish order in the case. She indicated during
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  Speaker 2: the hearing that she's not inclined to issue a very
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  Speaker 2: expansive order that blocks, I guess, an expansive array of
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  Speaker 2: activities at the East Potomac Park. But I think it's
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  Speaker 2: possible we'll see her extend her order, barring the government
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  Speaker 2: from continuing to cut down more healthy trees. We also,
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  Speaker 2: I think, are likely, as I mentioned earlier, to see
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  Speaker 2: her requiring there to be a certain number of days
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  Speaker 2: notice before any major changes they may be considering in
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  Speaker 2: the park.
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  Speaker 1: Normally, a judge wouldn't have to ask, are you going
• 11:32
  Speaker 1: to obey my order? But in this case, did she
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  Speaker 1: get any assurances from the Justice Department?
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  Speaker 2: I don't recall an exact exchange like that, but she
• 11:43
  Speaker 2: didn't go so far as to suggest the government would
• 11:45
  Speaker 2: violate her order. But certainly what happened earlier this month
• 11:49
  Speaker 2: was raised multiple times during this hearing as something that
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  Speaker 2: Judge Reyes would not like to see again.
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  Speaker 1: Thanks so much, Suzanne, for taking the time in this
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  Speaker 1: busy day to talk to me. That's Bloomberg Law reporter
• 12:00
  Speaker 1: Suzanne Moniak. The six-member, super-conservative majority on the Supreme Court
• 12:07
  Speaker 1: has moved the law farther to the right, Whether it
• 12:10
  Speaker 1: be in the area of abortion rights, religious rights, LGBTQ rights,
• 12:15
  Speaker 1: civil rights, civil liberties, the list goes on and on.
• 12:20
  Speaker 1: So it may come as a surprise that in criminal
• 12:22
  Speaker 1: cases over the last two years, the majority of the
• 12:26
  Speaker 1: court's decisions, 70%, have been in favor of the defendant
• 12:31
  Speaker 1: or the defense position. Joining me is Rory Little, a
• 12:34
  Speaker 1: professor of constitutional and criminal law at UC Los San Francisco. Rory,
• 12:40
  Speaker 1: you've crunched the numbers, so tell us what you found.
• 12:43
  Speaker 3: The Supreme Court does not categorize its decisions or its
• 12:47
  Speaker 3: cases as criminal versus not criminal. So this is my
• 12:51
  Speaker 3: own analysis. I call anything related to criminal law, criminal
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  Speaker 3: law related. But then I call certain cases pure criminal law,
• 13:00
  Speaker 3: which are really the center of criminal law issues, including
• 13:04
  Speaker 3: Bill of Rights, constitutional criminal procedure, etc., Okay, there were
• 13:08
  Speaker 3: 21 out of 30 pure criminal law cases that came
• 13:13
  Speaker 3: out in favor of the defendant or the defense position
• 13:16
  Speaker 3: over the last two terms. So that's a pretty healthy percentage.
• 13:19
  Speaker 3: That's 70% of the cases came out in favor of
• 13:23
  Speaker 3: the defense position. I think that's a little surprising to
• 13:26
  Speaker 3: people who see the court as a conservative court. And
• 13:29
  Speaker 3: certainly there are conservative justices on the court. But some
• 13:33
  Speaker 3: of the justices are what I call wild cards. And
• 13:36
  Speaker 3: in different types of cases, they go with the three
• 13:38
  Speaker 3: liberal justices, and they create a five-justice majority. So 70%
• 13:43
  Speaker 3: of the pure criminal law cases went for the defense position,
• 13:48
  Speaker 3: and Justice Kagan ended up writing about a third of them.
• 13:51
  Speaker 3: So she's become the sort of go-to justice for criminal
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  Speaker 3: law cases.
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  Speaker 1: So explain how you look at the court with the
• 13:59
  Speaker 1: two conservative solid votes and the three liberal solid votes.
• 14:04
  Speaker 1: Sort of solid.
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  Speaker 3: Yeah. I use an analogy to, you know, poker. The
• 14:09
  Speaker 3: Supreme Court is not a game. It's not a poker game.
• 14:13
  Speaker 3: But the analogy is relatively clear, which is you got
• 14:16
  Speaker 3: to have five cards to win in a nine justice court.
• 14:21
  Speaker 3: You got to have five votes. Justice Brennan used to
• 14:23
  Speaker 3: hold his hand up with his fingers spread out wide.
• 14:26
  Speaker 3: And he'd say with five votes, you can do anything here.
• 14:29
  Speaker 3: He was a little cynical about that. So when you
• 14:32
  Speaker 3: need five votes and you have three pretty consistent liberal votes,
• 14:36
  Speaker 3: which is justices Kagan, Sotomayor, and Jackson, and on the
• 14:40
  Speaker 3: other end, you got two very consistent conservative votes, Alito
• 14:45
  Speaker 3: and Thomas. So you got four justices in the middle.
• 14:48
  Speaker 3: They're kind of your wild cards. And you got to attract,
• 14:51
  Speaker 3: if you want to be on the liberal side, you
• 14:53
  Speaker 3: got to attract at least two of them to get five.
• 14:56
  Speaker 3: So that's the way I look at the court. When
• 14:58
  Speaker 3: you go into a case, where are the liberals going
• 15:01
  Speaker 3: to get their two wildcard votes for whatever result they
• 15:05
  Speaker 3: think is the liberal result. And who are those people
• 15:08
  Speaker 3: going to be? It's a gambling game in that you
• 15:11
  Speaker 3: don't know until the result is in what justice is
• 15:14
  Speaker 3: going to go which way in any particular case. But
• 15:17
  Speaker 3: you can make some general predictions as to whether a
• 15:20
  Speaker 3: case goes in a certain direction to attract, say, Justice
• 15:23
  Speaker 3: Gorsuch or Justice Kavanaugh or the Chief Justice or, in
• 15:27
  Speaker 3: some cases, Justice Barrett. Those are your four wildcard justices.
• 15:31
  Speaker 1: And as far as the, we'll call them wildcard justices,
• 15:35
  Speaker 1: is there anything you can say for certain about how
• 15:38
  Speaker 1: they would lean on certain criminal issues, for example?
• 15:42
  Speaker 3: Well, I don't know that you can say anything for certain,
• 15:44
  Speaker 3: but you can make sort of general observations. So Justice
• 15:48
  Speaker 3: Gorsuch has made it clear he has a book, which
• 15:51
  Speaker 3: is called Overruled. which talks about when the government treats
• 15:55
  Speaker 3: people unfairly, and he likes to vote for the little guy, quote-unquote.
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  Speaker 3: So if you can picture a criminal case as the
• 16:03
  Speaker 3: defendant here was really treated badly by the government, not just,
• 16:08
  Speaker 3: you know, they may have committed a criminal offense, they
• 16:11
  Speaker 3: may have broken the criminal law, but they were treated
• 16:14
  Speaker 3: badly by the government, then you can hope at least
• 16:18
  Speaker 3: that Justice Gorsuch is going to go your way. There's
• 16:21
  Speaker 3: a case called Tamani last year. It was a gun case,
• 16:25
  Speaker 3: but the defendant was an occasional marijuana user. Federal law
• 16:29
  Speaker 3: says you can't have a gun if you are a
• 16:32
  Speaker 3: user of any controlled substance. Marijuana is still federally a
• 16:37
  Speaker 3: controlled substance. This person was prosecuted. It's a pretty heavy penalty.
• 16:41
  Speaker 3: And Justice Gorsuch seemed to have no trouble voting for
• 16:44
  Speaker 3: the defendant in that case. And he wrote an opinion
• 16:47
  Speaker 3: describing very sympathetically how the government had treated this person.
• 16:52
  Speaker 3: So you can say things like Justice Gorsuch likes to
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  Speaker 3: find a case or he'll be attracted to a case
• 16:58
  Speaker 3: if the defendant looks like they were treated unfairly, even
• 17:02
  Speaker 3: if they broke the law. Justice Kavanaugh has a particular
• 17:06
  Speaker 3: attraction in capital cases, death penalty cases, to procedural fairness.
• 17:11
  Speaker 3: He clerked for Justice Kennedy When Justice Kennedy was on
• 17:15
  Speaker 3: the court, he was a big fan of fairness in
• 17:18
  Speaker 3: death penalty cases, even though he supported the death penalty.
• 17:21
  Speaker 3: Justice Kavanaugh seems to have the same point of view.
• 17:23
  Speaker 3: So if you can pitch a case in a capital
• 17:26
  Speaker 3: case to make it look like somebody's been treated unfairly
• 17:29
  Speaker 3: by the system and they've been exposed to the death penalty,
• 17:31
  Speaker 3: you can attract Justice Kavanaugh. Sometimes, not every time, the
• 17:35
  Speaker 3: chief justice, he doesn't actually care much about criminal law.
• 17:38
  Speaker 3: He is much more interested in the civil cases, you know,
• 17:41
  Speaker 3: birthright citizenship, the tariffs, things like that. So he has
• 17:45
  Speaker 3: to vote together with Kavanaugh. If you can attract Kavanaugh,
• 17:49
  Speaker 3: chances are you're going to attract the chief justice, who
• 17:51
  Speaker 3: is content in some sense to let the criminal law
• 17:54
  Speaker 3: side of the docket go the way that the justices
• 17:57
  Speaker 3: want to go. That's not his focus. Justice Barrett, maybe
• 18:01
  Speaker 3: what you can say about Justice Barrett is she's very conservative,
• 18:03
  Speaker 3: but she is a former law professor, a pretty long time,
• 18:07
  Speaker 3: a couple of decades of law professor. So she gets
• 18:10
  Speaker 3: very concerned about procedural detail. You better dot your I's
• 18:15
  Speaker 3: and cross your T's if you want to win with
• 18:17
  Speaker 3: Justice Barrett. If you can show a case where the
• 18:20
  Speaker 3: procedural side has really been badly done by the government,
• 18:25
  Speaker 3: you might attract her vote in a criminal case. And again,
• 18:29
  Speaker 3: the liberal justices only need to attract two. They don't
• 18:32
  Speaker 3: have to attract all four. Although sometimes, you know, everybody,
• 18:35
  Speaker 3: I mean, some of these cases out of the 21,
• 18:38
  Speaker 3: some of them are unanimous. That is to say, in
• 18:41
  Speaker 3: the criminal law, It's not hard to find cases where
• 18:45
  Speaker 3: the lower courts have made a mistake that seems kind
• 18:49
  Speaker 3: of obvious to the Supreme Court because we have, you know,
• 18:52
  Speaker 3: 50 states feeding into the criminal justice system, plus the
• 18:56
  Speaker 3: federal circuits, 12 or 13 circuits. So it's not surprising
• 18:59
  Speaker 3: that every year there's a few cases that seem sort
• 19:01
  Speaker 3: of obviously wrong. And in those cases, the Supreme Court
• 19:05
  Speaker 3: has no problem voting for the defense position when it
• 19:09
  Speaker 3: seems obvious. clearly wrong under prior precedent cases.
• 19:14
  Speaker 1: So Justice Kagan doesn't have a criminal law background like
• 19:18
  Speaker 1: some of the justices do, particularly Justice Jackson, right? And
• 19:23
  Speaker 1: Justice Sotomayor. Why do you think the chief is giving
• 19:27
  Speaker 1: Justice Kagan so many decisions to write in criminal cases?
• 19:31
  Speaker 3: Well, there were 16 cases, which I call pure criminal law,
• 19:36
  Speaker 3: where Justice Kagan wrote five of the 16. So she
• 19:39
  Speaker 3: wrote a third of them this past term. And they
• 19:42
  Speaker 3: weren't all pro-defense. Two of them were not in favor
• 19:45
  Speaker 3: of the defense. Three of them were pro-defense. But she
• 19:48
  Speaker 3: got a third of them When you have eight justices
• 19:51
  Speaker 3: to choose from, you're the chief justice. You get to
• 19:54
  Speaker 3: assign decisions. And the chief justice did not write an
• 19:57
  Speaker 3: opinion in any of the criminal law cases. Again, it's
• 20:00
  Speaker 3: just not his focus. So he's going to assign them.
• 20:03
  Speaker 3: And he assigned a third of them to Justice Kagan.
• 20:05
  Speaker 3: That's a big percentage. Why does he assign to Justice Kagan?
• 20:08
  Speaker 3: I think it's because Justice Kagan is good at two
• 20:11
  Speaker 3: different things. First, she's a really good writer. She is
• 20:14
  Speaker 3: the most stylish writer, maybe, on the court. Certainly one
• 20:18
  Speaker 3: of the top writers on the court. And the other
• 20:20
  Speaker 3: thing is she is really good at assembling majorities. She
• 20:24
  Speaker 3: is really good at finding consensus among complicated, difficult, tricky precedents.
• 20:30
  Speaker 3: So when you have a case that you want to
• 20:32
  Speaker 3: preserve the majority, the Chief Justice is assigning, he's looking for,
• 20:35
  Speaker 3: who am I going to give this to? I need
• 20:37
  Speaker 3: to preserve the majority here. It's a tricky case. There's
• 20:40
  Speaker 3: a lot of precedents that are pulling in different directions.
• 20:42
  Speaker 3: I'm going to give it to Kagan because she's more
• 20:44
  Speaker 3: likely to write an opinion that isn't polarizing on both ends.
• 20:50
  Speaker 3: She's going to write an opinion that goes kind of
• 20:52
  Speaker 3: down the middle. in a pro-defense way, focus on precedent,
• 20:56
  Speaker 3: and not deviate too extremely. So I think that the
• 21:00
  Speaker 3: chief assigns to her because she's a really good writer,
• 21:02
  Speaker 3: and she's going to preserve the majority.
• 21:05
  Speaker 1: What would you say are the most important criminal decisions
• 21:08
  Speaker 1: from last term?
• 21:09
  Speaker 3: Well, there are two cases that were, I would say,
• 21:11
  Speaker 3: the most important on the criminal side. One of them
• 21:14
  Speaker 3: is in easily identifiable. It's one of the top two
• 21:17
  Speaker 3: cases of the term, the other one being birthright citizenship.
• 21:20
  Speaker 3: In the Chattree case, the court had to decide whether
• 21:24
  Speaker 3: your location information that your cell phone records while you're
• 21:28
  Speaker 3: going about your daily business, whether that information is private
• 21:32
  Speaker 3: so that if the government is going to demand it
• 21:35
  Speaker 3: from a third-party cell-providing company, a company that stores your data,
• 21:41
  Speaker 3: you don't store it yourself. You set it up to
• 21:42
  Speaker 3: the cloud. They put it in a databank. Is that
• 21:45
  Speaker 3: information private enough to attract Fourth Amendment protection? Is it
• 21:50
  Speaker 3: a search subject to the Fourth Amendment? Chachi was a
• 21:53
  Speaker 3: very important case, and it came out in the liberal direction,
• 21:56
  Speaker 3: and Justice Kagan was assigned to write it. It wasn't surprising,
• 22:00
  Speaker 3: I hope, but it was certainly very important, and it
• 22:03
  Speaker 3: was a difficult case to write. I mean, Justice Gorsuch
• 22:06
  Speaker 3: wrote a separate opinion disagreeing with fellow Justice Kagan's analysis.
• 22:10
  Speaker 3: Justice Alito wrote a dissent where he really disagreed with
• 22:13
  Speaker 3: her analysis. but she preserved a majority for a very
• 22:15
  Speaker 3: important result for everybody who uses a cell phone and
• 22:19
  Speaker 3: cares about the privacy of their data, not just their
• 22:22
  Speaker 3: location data, but all the data that you have on
• 22:24
  Speaker 3: your cell phone, which might include bank accounts and health
• 22:27
  Speaker 3: information and all sorts of other things that we think
• 22:30
  Speaker 3: of as private. Even though we send it to a
• 22:32
  Speaker 3: third party, we agree, quote unquote, when we sign on,
• 22:36
  Speaker 3: the court said, look, the government's got to turn Fourth
• 22:38
  Speaker 3: Amendment corners to get that information. So Chaffee was very important.
• 22:42
  Speaker 3: The Hunter case, In the other case that Justice Kagan wrote,
• 22:46
  Speaker 3: it was decided by an 8-1 vote saying that there
• 22:50
  Speaker 3: is a miscarriage of justice exception that allows the Court
• 22:54
  Speaker 3: of Appeals to review somebody's guilty plea and sentence, even
• 22:57
  Speaker 3: though they've waived the appeal. In their guilty plea agreement,
• 23:01
  Speaker 3: they said, I waive the right to appeal. There's still
• 23:04
  Speaker 3: a miscarriage of justice exception to that. Justice Kagan had
• 23:08
  Speaker 3: to write a very careful opinion to get through a
• 23:11
  Speaker 3: lot of tricky precedents. And after she circulated her majority,
• 23:15
  Speaker 3: three of the justices, two liberals plus Gorsuch, wrote a
• 23:18
  Speaker 3: concurring opinion basically saying, hey, this should go a lot
• 23:21
  Speaker 3: further than what Justice Kagan has written. And meanwhile, three
• 23:24
  Speaker 3: other justices, you know, Kavanaugh and Barrett, and I think Alito,
• 23:29
  Speaker 3: wrote a separate opinion saying, whoa, we really disagree with
• 23:32
  Speaker 3: what Gorsuch has written. But all those justices, those three
• 23:36
  Speaker 3: in one direction, three in the other direction, they all
• 23:38
  Speaker 3: agreed with Kagan's opinion ultimately. Eight to one, she won
• 23:42
  Speaker 3: that case. That was maybe the most important decision of
• 23:45
  Speaker 3: the term because it throws into doubt all sorts of
• 23:49
  Speaker 3: questions about the guilty plea system in criminal law. And
• 23:53
  Speaker 3: Justice Gorsuch wrote a very liberal opinion, and Sotomayor and
• 23:57
  Speaker 3: Jackson had no trouble agreeing with, even though it was
• 24:01
  Speaker 3: disputing some of what Kagan said. because it went even
• 24:04
  Speaker 3: further than what Kagan had to write to keep that majority.
• 24:07
  Speaker 3: She kept an eight-justice majority in a case that was
• 24:10
  Speaker 3: very difficult to write. So these are two cases where
• 24:13
  Speaker 3: Justice Kagan really showed her skill at handling tricky writing,
• 24:18
  Speaker 3: doing it kind of with flourish. She doesn't write really long.
• 24:21
  Speaker 3: She's a succinct writer, and she reached results that are
• 24:25
  Speaker 3: very important for the criminal law system in the future.
• 24:28
  Speaker 1: Coming up next on the Bloomberg Law Show, I'll continue
• 24:30
  Speaker 1: this conversation with Professor Rory Little. We'll talk about the
• 24:34
  Speaker 1: criminal cases coming up this term. This is Bloomberg. I've
• 24:41
  Speaker 1: been talking to Professor Rory Little of UC Los San
• 24:45
  Speaker 1: Francisco about decisions in criminal cases that the Supreme Court
• 24:50
  Speaker 1: has made over the last two terms, where perhaps surprisingly... 70%
• 24:55
  Speaker 1: have been in favor of the defendant or the defense position. Rory,
• 24:59
  Speaker 1: for those who don't follow the Supreme Court closely, explain
• 25:02
  Speaker 1: the process of making a decision and putting out the opinions.
• 25:08
  Speaker 3: Sure. So when a case is argued, the justices do
• 25:12
  Speaker 3: not discuss the case before oral argument. They might circulate
• 25:16
  Speaker 3: a memo or two, but for the most part, they
• 25:18
  Speaker 3: go into oral argument not having discussed the case. When
• 25:21
  Speaker 3: they come out of oral argument, within a couple of days,
• 25:23
  Speaker 3: they take a vote at a secret meeting, just the
• 25:26
  Speaker 3: nine of them, nobody else in the room. We call
• 25:29
  Speaker 3: that the conference. They meet together at the conference and
• 25:32
  Speaker 3: they take a vote. And then after the vote comes in,
• 25:35
  Speaker 3: if the chief justice is in the majority, he gets
• 25:38
  Speaker 3: to assign the opinion to whoever he wants to assign
• 25:40
  Speaker 3: it to, including he could keep it himself, but in
• 25:42
  Speaker 3: criminal law cases, he tends not to do that. And
• 25:45
  Speaker 3: then the person it's assigned to has to circulate a
• 25:49
  Speaker 3: majority opinion. That is an opinion that reflects the views
• 25:52
  Speaker 3: of all the people that voted in the majority position,
• 25:55
  Speaker 3: whether it was five justices or eight justices or nine justices.
• 25:59
  Speaker 3: And that's an important responsibility because what you don't want
• 26:02
  Speaker 3: to have happen is people, when they see your majority draft,
• 26:05
  Speaker 3: which circulates internally... and nobody sees it on the external side,
• 26:09
  Speaker 3: nobody sees it in public, you don't want to lose people.
• 26:11
  Speaker 3: You went in with five votes and then somebody says, oh,
• 26:14
  Speaker 3: wait a minute, I'm not so sure now that I've
• 26:16
  Speaker 3: seen your opinion. So writing your majority opinion is very
• 26:19
  Speaker 3: important because you don't want to lose votes. If you
• 26:21
  Speaker 3: don't have five votes at the end, your position doesn't win.
• 26:25
  Speaker 3: So the majority opinion writer has to write carefully enough
• 26:29
  Speaker 3: to keep the other preliminary votes at the conference, to
• 26:33
  Speaker 3: keep those votes in line And you don't want to
• 26:36
  Speaker 3: lose a case. Every now and then, everybody believes, and
• 26:39
  Speaker 3: I clerked at the Supreme Court, so I saw this
• 26:41
  Speaker 3: happen in a couple of cases. The majority opinion circulates,
• 26:44
  Speaker 3: and enough justices aren't happy with it so that the
• 26:47
  Speaker 3: votes flip, and the case actually goes in the other direction.
• 26:51
  Speaker 3: It becomes five in the other direction as opposed to
• 26:53
  Speaker 3: five in your direction. So it's a very important and
• 26:56
  Speaker 3: tricky thing. And I think the most embarrassing thing for
• 27:00
  Speaker 3: a justice internally is to lose a majority opinion. or
• 27:04
  Speaker 3: even just to lose votes. I mean, if you had
• 27:06
  Speaker 3: an eight to one court and you end up only
• 27:08
  Speaker 3: five to four, that's internally, it's very embarrassing. So this
• 27:12
  Speaker 3: majority assignment thing, which happens after the argument, and then
• 27:17
  Speaker 3: everybody else gets to vote on it. And some people
• 27:19
  Speaker 3: will write separate opinions, the dissenting opinions, lots of other
• 27:23
  Speaker 3: opinions can come in. In the end, you want to
• 27:25
  Speaker 3: make sure you have your majority after everybody's voted finally
• 27:29
  Speaker 3: on all the written product. So it's a long process
• 27:32
  Speaker 3: from oral argument to issuing the opinion. It usually takes
• 27:35
  Speaker 3: at least a couple of months.
• 27:36
  Speaker 1: What's your take on the case, the Baird case, that
• 27:39
  Speaker 1: was heard last week on the sentencing guidelines?
• 27:43
  Speaker 3: Well, the Baird case is one of these interesting cases
• 27:45
  Speaker 3: that the court, it's very theoretical. The average person really
• 27:51
  Speaker 3: will pay no attention to the Baird case. It has
• 27:53
  Speaker 3: to do with how much deference should lower court judges
• 27:57
  Speaker 3: give to the sentencing commission, and the federal sentencing commission
• 28:02
  Speaker 3: issues guidelines, but after they issue their guidelines, then they
• 28:06
  Speaker 3: issue what are called commentary notes. So these commentary notes
• 28:12
  Speaker 3: basically say, here's how we think the guidelines should be
• 28:16
  Speaker 3: applied in specific cases. How much should a lower court
• 28:20
  Speaker 3: defer to the commentary? And the Baird case involves this
• 28:23
  Speaker 3: sort of theoretical issue of how do we semantically describe
• 28:27
  Speaker 3: the appropriate amount of deference, so that lower court judges
• 28:30
  Speaker 3: can get some kind of specific guidance out of this.
• 28:33
  Speaker 3: Lower courts, federal courts, are sentencing hundreds of federal offenders
• 28:38
  Speaker 3: every week, tens of thousands, by the end of the year.
• 28:41
  Speaker 3: And so they really need some specific guidance. So in
• 28:43
  Speaker 3: this case, Justice Kagan had written a prior opinion talking
• 28:47
  Speaker 3: about deference, and everybody agrees that the Baird case is
• 28:51
  Speaker 3: going to have to have some adjustment to these prior opinions.
• 28:54
  Speaker 3: It doesn't have a pro-defense position. That's, you know, deference
• 28:58
  Speaker 3: will sometimes favor the defense. Sometimes it'll favor the government.
• 29:01
  Speaker 3: So there's actually no politics, I think, involved in this case.
• 29:05
  Speaker 3: But they all have different points of view. And so
• 29:07
  Speaker 3: I say in this column that I published, you know,
• 29:09
  Speaker 3: I think Kagan is a likely author for this case
• 29:13
  Speaker 3: because after it's argued, and it was argued last week,
• 29:16
  Speaker 3: you know, we don't know what the vote was. Everybody
• 29:19
  Speaker 3: agreed that there's got to be some adjustments made. And
• 29:22
  Speaker 3: if they're going to keep a majority together... with both
• 29:24
  Speaker 3: conservative and liberal justices in the majority, Justice Kagan, at
• 29:29
  Speaker 3: least based on the last term results, looks like a
• 29:31
  Speaker 3: strong contender to be the majority writer because she's really
• 29:36
  Speaker 3: good at wending her way through tricky precedents and keeping
• 29:39
  Speaker 3: a majority.
• 29:39
  Speaker 1: And what other criminal cases coming up this term do
• 29:42
  Speaker 1: you think are going to be the most important?
• 29:46
  Speaker 3: The most important case related to criminal law is going
• 29:50
  Speaker 3: to be whether the Second Amendment gives people the right
• 29:54
  Speaker 3: to own an AR-15 semi-automatic rifle. Some people call them
• 30:00
  Speaker 3: assault weapons. I think 12 states have bans on assault weapons.
• 30:05
  Speaker 3: AR-15s are commonly used these days in mass shootings, sadly.
• 30:10
  Speaker 3: And so the question is, does the Second Amendment right
• 30:12
  Speaker 3: to keep and bear arms protect your right to have
• 30:16
  Speaker 3: this modern, technologically very superior rifle? And the question is
• 30:21
  Speaker 3: going to be, well, these rifles, they were not in
• 30:24
  Speaker 3: common use when the Second Amendment was written 250 years ago.
• 30:30
  Speaker 3: But they are sort of commonly used today, at least
• 30:32
  Speaker 3: by gun owners. Gun owners like this AR-15. Unfortunately, so
• 30:37
  Speaker 3: do mass killers. So that's probably the most important case.
• 30:40
  Speaker 3: That's going to be argued on December 2nd. So that's
• 30:42
  Speaker 3: probably the most important case. You have another case like,
• 30:45
  Speaker 3: does a criminal law jury have to be 12 people?
• 30:49
  Speaker 1: Yeah, that's interesting.
• 30:50
  Speaker 3: Yeah, there's still one or two states that allow six-person juries.
• 30:54
  Speaker 3: Interestingly enough, every jurisdiction allows an 11-person jury... If you
• 31:00
  Speaker 3: start with 12 and then one of them gets sick
• 31:04
  Speaker 3: and has to be left off the jury at the end,
• 31:06
  Speaker 3: you can still have an 11-person jury. So this is
• 31:09
  Speaker 3: an important question because the Constitution simply says you're entitled
• 31:13
  Speaker 3: to a jury trial in a criminal case. It doesn't
• 31:15
  Speaker 3: say how many people have to be on the jury.
• 31:18
  Speaker 3: So are we going to say that 12 is a
• 31:21
  Speaker 3: magic number? What happens in these cases where some juror
• 31:23
  Speaker 3: gets sick and you get 11? That's an important case.
• 31:27
  Speaker 3: And then you have this funny case out of Alaska.
• 31:29
  Speaker 3: It's actually an important case. I mean, it's not an
• 31:32
  Speaker 3: unimportant case, but it's got funny. Because the idea here
• 31:36
  Speaker 3: is that a guy who runs a private plane service
• 31:40
  Speaker 3: in Alaska, that's the way people get around in Alaska.
• 31:42
  Speaker 3: They hire these little planes. He's delivering a passenger to
• 31:47
  Speaker 3: a native village that outlaws alcohol, which they're allowed to do.
• 31:53
  Speaker 3: And on the passenger seat right next to him is
• 31:56
  Speaker 3: a six-pack of beer. In the back of the plane
• 31:58
  Speaker 3: is like nine gallons of beer. The pilot is arrested
• 32:03
  Speaker 3: for illegally transporting liquor into this no-liquor jurisdiction. And he says, well,
• 32:09
  Speaker 3: I didn't know anything about the nine gallons in the back.
• 32:11
  Speaker 3: And they said, well, you certainly knew about the six-pack
• 32:13
  Speaker 3: sitting right next to you. So he pleads guilty to this.
• 32:17
  Speaker 3: I think he serves two days, maybe three days in
• 32:20
  Speaker 3: jail maybe. They fine him, you know, say $ 9, 000. But
• 32:25
  Speaker 3: then they seize his plane as a, you know, mechanical
• 32:29
  Speaker 3: facilitator of the crime. And forfeiture law allows jurisdictions to
• 32:35
  Speaker 3: forfeit things that are used to commit crime. You know,
• 32:39
  Speaker 3: if you're doing a drug deal, they can seize your car.
• 32:42
  Speaker 3: So can you see the plane for a six-pack of
• 32:44
  Speaker 3: beer is kind of the soundbite for this case. It's
• 32:47
  Speaker 3: called jupey. You know, it sounds like an excessive fine
• 32:51
  Speaker 3: under the Eighth Amendment, taking somebody's $ 95, 000 plane for a
• 32:55
  Speaker 3: six-pack of beer crime. Some people say, well, but he
• 32:58
  Speaker 3: had nine gallons in the back, but they didn't actually
• 33:00
  Speaker 3: prove that at the criminal case. So that's an important case.
• 33:03
  Speaker 1: So how much of the docket is criminal cases this
• 33:06
  Speaker 1: term so far?
• 33:08
  Speaker 3: You know, 11 cases out of the number that they've
• 33:11
  Speaker 3: already granted review for this term. That's about a third
• 33:13
  Speaker 3: of the docket. So, again, this surprises some people. A
• 33:16
  Speaker 3: third of the docket is criminal law. That's not surprising
• 33:19
  Speaker 3: when you think how many criminal cases there are in
• 33:21
  Speaker 3: this country every year. But a lot of people don't
• 33:24
  Speaker 3: focus on that. The media tends to focus on the
• 33:26
  Speaker 3: big civil cases, transgender rights, tariffs, birthright citizenship, things like that,
• 33:32
  Speaker 3: voting rights. Those are all very important. But the criminal
• 33:35
  Speaker 3: side of the docket is, you know, about a third
• 33:38
  Speaker 3: to sometimes half of what they do.
• 33:42
  Speaker 1: And the criminal cases are often very interesting, at least
• 33:45
  Speaker 1: to me, and I'm sure to you. Thanks so much, Rory.
• 33:48
  Speaker 1: That's Professor Rory Little of UC Law San Francisco. And
• 33:52
  Speaker 1: that's it for this edition of the Bloomberg Law Show. Remember,
• 33:55
  Speaker 1: you can always get the latest legal news on our
• 33:57
  Speaker 1: Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify,
• 34:01
  Speaker 1: and at www.bloomberg.com slash podcast slash law. And remember to
• 34:07
  Speaker 1: tune into the Bloomberg Law Show every weeknight at 10 p.m.
• 34:11
  Speaker 1: Wall Street time. I'm June Grosso, and you're listening to Bloomberg.