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SCOTUS Low Approval & NFL Antitrust Exemption · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
• 0:08
  Speaker 2: In recent years, the Supreme Court has gotten what you
• 0:11
  Speaker 2: might call bad grades from the public, and it's gotten
• 0:15
  Speaker 2: worse since the last term. Americans are now more displeased
• 0:20
  Speaker 2: with the Court than at any time in the last
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  Speaker 2: twenty six years. According to the latest Gallup Pole, only
• 0:26
  Speaker 2: thirty three percent of the public approves of the job.
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  Speaker 2: The Supreme Court is doing a record low. Joining me
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  Speaker 2: is Bloomberg, Supreme Court reporter Greg store Greig tell us
• 0:38
  Speaker 2: about the latest polls.
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  Speaker 3: There were several new polls that came out after the
• 0:42
  Speaker 3: Court's term ended, and by far the worst of them
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  Speaker 3: was the Gallup Pole that showed the Supreme Court's approval
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  Speaker 3: rating plummeting to thirty three percent. That is easily the
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  Speaker 3: lowest since Gallup started surveying about the Court in two
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  Speaker 3: thousand and one. The number went down nine percentage points
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  Speaker 3: from forty two percent when they took it in September,
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  Speaker 3: so really a big decline there. The other polls were
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  Speaker 3: not as stark, but for example, a Marquette Law School
• 1:12
  Speaker 3: polls showed the Court down two percentage points from a
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  Speaker 3: year earlier, or so consistent with the notion that at best,
• 1:19
  Speaker 3: the Supreme Court is treading water.
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  Speaker 2: In the Gallup poll, was it a slide among Republicans
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  Speaker 2: that brought that number down?
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  Speaker 3: It was a slide mostly among Republicans. The Court's approval
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  Speaker 3: ratings were already really low among Democrats and independents, but
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  Speaker 3: among Republicans support dropped twenty one percentage points since September.
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  Speaker 3: It was seventy nine percent in September, fell to fifty
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  Speaker 3: eight percent, and with a plus or mige margin of
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  Speaker 3: era four percentage points, that's definitely a big, big drop.
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  Speaker 2: A huge drop. And you would think that the way
• 1:53
  Speaker 2: the Supreme Court rule this term on Republican priorities like
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  Speaker 2: narrowing agency power, enhancing gun rights, eliminating campaign spending restrictions,
• 2:07
  Speaker 2: that Republicans would be happy with the Court.
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  Speaker 3: Well, one big reason sure seems to be Donald Trump
• 2:12
  Speaker 3: and the way he's reacted. The Court, of course ruled
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  Speaker 3: against him on a couple of big issues, including tariffs
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  Speaker 3: and his ability to fire Lisa Cook and his birthright
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  Speaker 3: citizenship restrictions, and Donald Trump was extremely aggressive, lashing out
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  Speaker 3: at even those justices he appointed, like Amy Cony Barrett
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  Speaker 3: and Neil Gorsich. If you recall after the tariff decision,
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  Speaker 3: he said, among other things, that they are an embarrassment
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  Speaker 3: to their families. So Republicans, of course, do respond very
• 2:40
  Speaker 3: strongly across the board to things Donald Trump says, and
• 2:44
  Speaker 3: sure seems like his criticisms of the Supreme Court dragged
• 2:48
  Speaker 3: the court down with Republicans.
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  Speaker 2: Tell us about some of the factors that have made
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  Speaker 2: this Supreme Court so unpopular with Democrats and independence.
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  Speaker 3: There have been a lot of forces over the years
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  Speaker 3: that have been dragging the court down. This is not
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  Speaker 3: just a one year thing.
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  Speaker 4: This has been happening over the course of a couple
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  Speaker 4: of decades.
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  Speaker 3: And of course we're seeing institutions in general have their
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  Speaker 3: approval ratings falling. But you have a combination of a
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  Speaker 3: court that seems more partisan, and indeed they are more
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  Speaker 3: partisan in the sense that it's the Republican justices who
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  Speaker 3: are now the most conservative and the Democratic justices who
• 3:24
  Speaker 3: are the most liberal. You have things like the ethical
• 3:27
  Speaker 3: controversies that we had a few years ago that were
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  Speaker 3: very much in the news, Clarence Thomas accepting trips paid
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  Speaker 3: for by a Republican mega donor. You have the way
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  Speaker 3: the Court acquired this conservative supermajority, with Republicans holding one
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  Speaker 3: seat open after Antonin Scalia died and then rushing to
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  Speaker 3: Ville another one when Ruth Pader Ginsburg died. So there's
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  Speaker 3: kind of a perfect storm. Well, I haven't even mentioned
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  Speaker 3: overturning Roe v. Wade, which obviously was a decision that
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  Speaker 3: was a high profile and among many people, extremely unpopular.
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  Speaker 3: So a combination no factors have kind of gotten us
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  Speaker 3: to this point.
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  Speaker 2: So there were two decisions where the Supreme Court went
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  Speaker 2: against President Trump on the tariffs and birthright citizenship, in
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  Speaker 2: the sea of decisions where they helped move forward his
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  Speaker 2: agenda on the regular docket and on the shadow docket.
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  Speaker 2: Some people are pointing to that, even Justice Kagan are
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  Speaker 2: pointing to those two as well. We're holding the line here.
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  Speaker 4: Well.
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  Speaker 3: I did think that Justice Kagan's remarks this summer were
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  Speaker 3: very interesting because after the ruling that overturned Ruby Wade
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  Speaker 3: three years ago, she pretty much called in to question
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  Speaker 3: the Court's legitimacy in a couple of public appearances, saying
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  Speaker 3: that when the Court is overturning cases, isn't being consistent
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  Speaker 3: that it can call in the question its own legitimacy.
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  Speaker 3: So the fact that she was in at least in
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  Speaker 3: some sense standing up for the court this summer, I
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  Speaker 3: did think was notable. Having said that, she was very
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  Speaker 3: strongly in descent from a number of the decisions you
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  Speaker 3: mentioned where the conservative majority moved the law in a
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  Speaker 3: particular direction, in a way that conservatives have been hoping
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  Speaker 3: for for quite a long time.
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  Speaker 2: Is anybody else buying that argument that, you know, oh, well,
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  Speaker 2: we held the line on these two cases, where if
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  Speaker 2: they hadn't held the line, it would have been shocking.
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  Speaker 4: You know, dude.
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  Speaker 3: I hate to say this as somebody who covers the
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  Speaker 3: Supreme Court spends all my waking hours, or at least
• 5:23
  Speaker 3: my work hours, thinking about how to communicate what the
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  Speaker 3: Supreme Court is doing. But the truth is a lot
• 5:28
  Speaker 3: of Americans don't pay attention to what the Supreme Court
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  Speaker 3: is doing unless it's one of these mega cases like
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  Speaker 3: overturning Roe v. Wade, or deciding a presidential election or
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  Speaker 3: something like that. So, you know, people often have impressions
• 5:41
  Speaker 3: of the court they've heard a little bit. If you
• 5:44
  Speaker 3: look at these polls, it's kind of remarkable how little
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  Speaker 3: people have heard about some cases that I think everybody's
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  Speaker 3: heard about for a great citizenship terrorist things that you mentioned,
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  Speaker 3: So you know what people think of the Court. Maybe
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  Speaker 3: in a lot of cases more impression is stick then
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  Speaker 3: something that is really tied to particular decisions that came out.
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  Speaker 2: And in your story you write that the justices have
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  Speaker 2: said in public that they don't consider polls.
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  Speaker 3: Yeah, they've said that over and over in a variety
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  Speaker 3: of different contexts. So one thing I mentioned in the
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  Speaker 3: story was in the Dobbs rulanguage overturned Roe v. Wade,
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  Speaker 3: Justice Alito mentioned that he put it, the judicial branch
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  Speaker 3: derives its legitimacy not from following public opinion, but from
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  Speaker 3: deciding by its best lives whether legislative enactments of the
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  Speaker 3: popular branches of government comport with the Constitution. Other justices
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  Speaker 3: have said similar things. On the other hand, we discussed
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  Speaker 3: Justice Kagan talking about the Court's legitimacy the court, and
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  Speaker 3: I would venture to say all the justices understand that
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  Speaker 3: their legitimacy is really important as a country, as a republic,
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  Speaker 3: we need people, both average people and other members of
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  Speaker 3: the government to accept Supreme Court decisions even if they
• 7:00
  Speaker 3: don't agree with them. We need people to be like
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  Speaker 3: al Gore, who can say, after the bushby Gored decision,
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  Speaker 3: I disagree strongly, but I accept it. Otherwise, you know,
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  Speaker 3: we run the risk of chaos where despite what the
• 7:13
  Speaker 3: Supreme Court says, people say, we are going to go
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  Speaker 3: off in our own direction, interpret the Constitution our own way.
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  Speaker 2: I know they say that they don't care about the
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  Speaker 2: polls in public, but I have this feeling like some
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  Speaker 2: of them must be a little bit upset about the
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  Speaker 2: fact that they're at record lows and that, you know,
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  Speaker 2: the public is seeing them as politicians in robes. I mean,
• 7:34
  Speaker 2: they come out and defend themselves, and you see, you know,
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  Speaker 2: Justice Roberts trying to emphasize the number of unanimous decisions
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  Speaker 2: and also talk about we don't overturn precedent as much
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  Speaker 2: as some past justices. I mean, it seems like they're
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  Speaker 2: doing a lot of explaining.
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  Speaker 3: It is certainly the case that if you went to
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  Speaker 3: any of the nine of them and said you're acting
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  Speaker 3: like a politician, they would tell you, in very strongly
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  Speaker 3: worded terms, why they don't think they're a politician, why
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  Speaker 3: they are just interpreting statutes and interpreting the Constitution the
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  Speaker 3: way they think they should be interpreted.
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  Speaker 2: I am puzzled by one of the polls that found
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  Speaker 2: that a majority approved of the decisions the Court made
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  Speaker 2: while not approving of the Court itself.
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  Speaker 3: One thing that to me is fascinating about these polls
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  Speaker 3: is that even as the Court is becoming less popular,
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  Speaker 3: it's decisions, at least in this last term, were actually
• 8:28
  Speaker 3: quite popular. So if you look at the Marquette poll,
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  Speaker 3: they asked about thirteen recent Supreme Court decisions, and a
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  Speaker 3: majority of people said the justices had made the right
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  Speaker 3: decision in eleven of those cases. So there is when
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  Speaker 3: you ask people about the particular issues the Supreme Court
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  Speaker 3: is deciding, there is some support for what the Supreme
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  Speaker 3: Court is doing, even as the Court as a whole,
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  Speaker 3: as an institution, goes down in the public mind.
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  Speaker 2: And there have been calls for a long time from
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  Speaker 2: liberal groups to either add members to the court, packing
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  Speaker 2: the court, or set term limits. Do you think that
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  Speaker 2: come twenty twenty eight in the presidential election, we're going
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  Speaker 2: to be hearing more about making changes to the court
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  Speaker 2: in some way.
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  Speaker 3: I expect very much we will hear a lot about this.
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  Speaker 3: On the Democratic side. We already have pee foota Judge
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  Speaker 3: and Kamala Harris as to prospective candidates who are pushing
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  Speaker 3: the idea of adding seats to the Supreme Court. Others
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  Speaker 3: are talking about things like term limits, and of course
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  Speaker 3: right now it's just talked because Democrats are not in
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  Speaker 3: a position to do that. But you don't have to
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  Speaker 3: squit too hard into the future to imagine a world
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  Speaker 3: where Democrats might have control of both Congress and the
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  Speaker 3: White House, and then the question would be will they
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  Speaker 3: do something about the Supreme.
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  Speaker 4: Court now that they have that power.
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  Speaker 3: And you know, we may see a dividing line among Democrats.
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  Speaker 3: Some who will say, we need to do something now,
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  Speaker 3: this is.
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  Speaker 4: The thing that will you know, make an instant.
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  Speaker 3: Change adding seats to the Supreme Court, and others who say, look,
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  Speaker 3: if we do it when we have the power to
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  Speaker 3: do it, as soon as Republicans get back in power,
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  Speaker 3: they're going to do it.
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  Speaker 4: And that's not good for anybody.
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  Speaker 2: You talk to Jesse Wegman of the Brennan Center and
• 10:12
  Speaker 2: he said, this court is not going to change its behavior.
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  Speaker 2: It was instituted precisely for this behavior. And the way
• 10:19
  Speaker 2: I think you saw this is structurally, which is what
• 10:22
  Speaker 2: we've been talking about I mean last term, the conservative
• 10:25
  Speaker 2: majority certainly changed the law. Are any cases coming up
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  Speaker 2: next term that might give them the same kind of opportunities.
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  Speaker 3: We don't yet have the boundary pushing cases that we
• 10:37
  Speaker 3: had last term, So I would say birthright, citizenship, Tariff's,
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  Speaker 3: Lisa Cook. All of those were Donald Trump doing something
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  Speaker 3: that a couple of years ago nobody was really thinking
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  Speaker 3: a president might be able to do. And we don't
• 10:52
  Speaker 3: yet have those cases, but we might. You know, so
• 10:55
  Speaker 3: many of these cases at the lower court level get
• 10:58
  Speaker 3: up to the Supreme Court through the emergency or shadow
• 11:02
  Speaker 3: docket and can present that sort of issue. That's what
• 11:05
  Speaker 3: happened with Lisa Cook. So it is certainly possible. For
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  Speaker 3: the most part, we have seen the way I think
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  Speaker 3: about it is, we have seen this court do most
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  Speaker 3: or all of the things that Ronald Reagan would have wanted,
• 11:20
  Speaker 3: that the kind of Reagan Revolution, the notion of let's
• 11:24
  Speaker 3: you know, get back to our originalist interpretation of the Constitution,
• 11:28
  Speaker 3: let's bolster the power of the presidency, and you know,
• 11:31
  Speaker 3: reduce the role of race in our in our governments.
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  Speaker 3: All those things that are long standing Conservative priorities. The
• 11:38
  Speaker 3: Court has been willing to do those things. It's where
• 11:40
  Speaker 3: Donald Trump has sort of created his own priorities that
• 11:44
  Speaker 3: maybe aren't things that the Reagan.
• 11:45
  Speaker 4: Folks would have thought of. That's where the Court is
• 11:48
  Speaker 4: sometimes drawing that line.
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  Speaker 2: Finally, there was a rumor that Justice Alito was going
• 11:54
  Speaker 2: to retire last term, and he has said that he
• 11:58
  Speaker 2: is not retiring this term.
• 12:00
  Speaker 5: At least he.
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  Speaker 3: Did say that, I can only tell you what words
• 12:03
  Speaker 3: he used. This was in an interview with the editorial
• 12:05
  Speaker 3: features editor of the Wall Street Journal, so sort of
• 12:07
  Speaker 3: a friendly audience. Justice Alito told them, obviously, I'm here
• 12:13
  Speaker 3: for another term. And the reason that we're talking about
• 12:15
  Speaker 3: this now is normally, if a Supreme Court justice is
• 12:19
  Speaker 3: going to retire, he or she does that at the
• 12:22
  Speaker 3: end of a term. It's the least disruptive for the court.
• 12:25
  Speaker 3: You know, if you leave in the middle of the term,
• 12:27
  Speaker 3: then you end up with, you know, maybe only an
• 12:29
  Speaker 3: eight justice court. And so when Justice Alito didn't retire
• 12:33
  Speaker 3: at the end of this last term, normally, when with
• 12:36
  Speaker 3: thak Okay, he's going to stick around for another term.
• 12:38
  Speaker 3: But because there is at least the prospect that Democrats
• 12:42
  Speaker 3: could take over the Senate in the November midterm election.
• 12:47
  Speaker 3: There has been some talk that if that happened, maybe
• 12:51
  Speaker 3: Justice Alito, who's very conservative, might say, or at least
• 12:54
  Speaker 3: come under pressure to say, I'm going to retire now
• 12:57
  Speaker 3: so that the lame duck Congress with the republic controled
• 13:00
  Speaker 3: Senate can confirm my successor These comments seem to preclude that,
• 13:06
  Speaker 3: obviously things can change, But he at least sounded, from
• 13:09
  Speaker 3: what I can read in this story, as somebody who's
• 13:12
  Speaker 3: not at all planning on leaving in November.
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  Speaker 2: Thanks so much for taking the time, Greg, That's Bloomberg,
• 13:17
  Speaker 2: Supreme Court reporter Greg Store. Coming up next is the
• 13:21
  Speaker 2: NFL breaking anti trust law in its negotiations with streaming services.
• 13:27
  Speaker 2: This is Bloomberg. It's a tough time for football fans
• 13:33
  Speaker 2: who live outside their favorite teams home market. The rise
• 13:38
  Speaker 2: of streaming services has ended the era when sports fans
• 13:42
  Speaker 2: could easily follow their favorite teams on a handful of
• 13:46
  Speaker 2: broadcasts and cable channels without buying special subscriptions. But the
• 13:51
  Speaker 2: NFL has signed deals with multiple services, creating a bewildering
• 13:56
  Speaker 2: schedule and a steep cost to watch games at home
• 14:00
  Speaker 2: as fans have to subscribe to multiple streaming services in
• 14:04
  Speaker 2: addition to a traditional cable or satellite bundle. During a
• 14:08
  Speaker 2: Judiciary subcommittee hearing in June, Republican Congressman Jim Jordan described
• 14:14
  Speaker 2: the challenge football fans face trying to watch their favorite team.
• 14:19
  Speaker 1: Here's what the fan deals with today.
• 14:21
  Speaker 5: In our report, a green Bay Packers fan who lives
• 14:25
  Speaker 5: in Dallas, Texas, grew up in green Bay, loves the Packers,
• 14:27
  Speaker 5: wants to watch Packers grew up in Dallas, Texas. For
• 14:29
  Speaker 5: the twenty twenty six season, the Packers are scheduled to
• 14:32
  Speaker 5: play eight games on Fox, two games on Amazon Prime Video,
• 14:35
  Speaker 5: two games on Netflix, two games on NBC, one game
• 14:37
  Speaker 5: on ESPN, one game on CBS, and one on schedule
• 14:40
  Speaker 5: game that is left to be determined by the NFL.
• 14:43
  Speaker 5: The fan will need access to Amazon Prime Video, Netflix, NBC,
• 14:46
  Speaker 5: and ESPN to see the seven game schedule for those services.
• 14:49
  Speaker 5: For the nine games schedule for Fox and CBS, the
• 14:52
  Speaker 5: fan will likely need Fox and CBS because some of
• 14:54
  Speaker 5: the games will be on broadcast television in Dallas. The
• 14:57
  Speaker 5: fan will also likely need Sunday ticket just to watch
• 14:59
  Speaker 5: some subset of the nine Fox CBS games, because the
• 15:02
  Speaker 5: fan will not know which games will and will not
• 15:04
  Speaker 5: be on broadcast until the NFL and relevant networks released
• 15:07
  Speaker 5: the broadcast maps the week of the games. That's what
• 15:10
  Speaker 5: they got to navigate. That's what they got to navigate.
• 15:13
  Speaker 2: The Justice Department has opened an anti trust investigation into
• 15:17
  Speaker 2: whether the NFL is breaking anti trust law in its
• 15:21
  Speaker 2: negotiations with streamers and driving up the costs for consumers.
• 15:26
  Speaker 2: My guest is an expert in anti trust, Harry First,
• 15:30
  Speaker 2: a professor at NYU Law School. Harry, some of our
• 15:33
  Speaker 2: Bloomberg reporters looked into this, and so for a Philadelphia
• 15:37
  Speaker 2: Eagles fan living outside of Pennsylvania to get all the
• 15:42
  Speaker 2: games the Eagles are in, they would need Sunday Ticket
• 15:46
  Speaker 2: at three hundred and seventy eight dollars, YouTube at eighty
• 15:50
  Speaker 2: three dollars, Peacock at thirty three dollars, Fox Won at
• 15:54
  Speaker 2: twenty dollars, and Prime Video at nine dollars, for a
• 15:59
  Speaker 2: grand total of five hundred and twenty three dollars. Yet,
• 16:03
  Speaker 2: the NFL claims that eighty seven percent of its games
• 16:06
  Speaker 2: are primarily shown on free over the air broadcast TV.
• 16:12
  Speaker 1: I mean, I assume that that's true, you know. Yeah,
• 16:16
  Speaker 1: So if you want to just want to watch the Eagles.
• 16:18
  Speaker 1: I mean, you know it's going to be on free
• 16:20
  Speaker 1: over the air television. But if you want to watch
• 16:23
  Speaker 1: away games, you know, if you want to just sit
• 16:25
  Speaker 1: there on a Sunday and watch every game out of
• 16:28
  Speaker 1: your market, you're gonna have to pay for it. If
• 16:30
  Speaker 1: you want to watch every time the Eagles play, you
• 16:34
  Speaker 1: know in LA, it's not going to be on Channel
• 16:37
  Speaker 1: ten in Philadelphia. So yes, if you fly to LA,
• 16:42
  Speaker 1: it'll be there for free too, but not exactly free.
• 16:45
  Speaker 1: So I don't know the number. It's one of those
• 16:49
  Speaker 1: numbers that will convince no one. Obviously, a lot of
• 16:52
  Speaker 1: people are buying the Sunday ticket to watch out of
• 16:55
  Speaker 1: market football games because they just love sitting there watching
• 16:59
  Speaker 1: their team wherever they are and other teams, you know,
• 17:01
  Speaker 1: because there are teams all around the country that you
• 17:04
  Speaker 1: can't see on over the AIRTV unless you pay extra
• 17:08
  Speaker 1: for it.
• 17:09
  Speaker 2: The investigation is reportedly focused on this antitrust loophole in
• 17:13
  Speaker 2: the Sports Broadcasting Act that allows the NFL and other
• 17:18
  Speaker 2: leagues to negotiate media deals collectively on behalf of their teams.
• 17:24
  Speaker 2: And that's the same loophole that the Congressional Subcommittee was
• 17:27
  Speaker 2: looking into in June.
• 17:29
  Speaker 1: So the lawyer in me doesn't like to call them loopholes,
• 17:33
  Speaker 1: likes to call them exemptions, you know, in nineteen sixty one. Yes,
• 17:38
  Speaker 1: it's interesting to try to think about it, and I'm
• 17:40
  Speaker 1: not certain I fully understand why the over the air
• 17:45
  Speaker 1: broadcasters went along with this because they were I think
• 17:49
  Speaker 1: relatively more powerful than the NFL in nineteen sixty one,
• 17:52
  Speaker 1: which was, you know, not the juggernaut we know today.
• 17:57
  Speaker 1: So they allowed the NFL well to pool all their
• 18:02
  Speaker 1: TV rights free of any anti trust issues. The laws
• 18:07
  Speaker 1: in some ways less settled then, and you know, maybe
• 18:11
  Speaker 1: it was a little less clear, but they really would
• 18:13
  Speaker 1: have had some problems, and there had been litigation, and
• 18:16
  Speaker 1: I think everyone thought it was in their best interest
• 18:18
  Speaker 1: to negotiate with a single source have this brand NFL football,
• 18:24
  Speaker 1: which then I guess the TV networks could sell to
• 18:28
  Speaker 1: advertisers because you know, that's that's third game. So in
• 18:33
  Speaker 1: that sense, it was a good deal for those two
• 18:36
  Speaker 1: powerful sides, you know, who then got this through Congress.
• 18:40
  Speaker 1: I doubt that the fans showed up for legislative fearings,
• 18:44
  Speaker 1: and you know, in the end, the fans didn't pay
• 18:47
  Speaker 1: directly because those are over the air quote unquote free broadcasts,
• 18:53
  Speaker 1: but you know, someone picks up the tab for the advertising,
• 18:56
  Speaker 1: so consumers do pay.
• 18:59
  Speaker 2: You had the Congress hearing in June, and of course
• 19:02
  Speaker 2: politicians on both sides question whether the deals now violate
• 19:08
  Speaker 2: that law. Do you think they violate that law?
• 19:12
  Speaker 1: Well, in a technical sense, the question is whether the
• 19:15
  Speaker 1: exemption applies to some of the current deals. So if
• 19:20
  Speaker 1: it's a deal that involves broadcasting rights where the broadcast
• 19:25
  Speaker 1: is paid for by sponsors in otherwise advertisers supported, then
• 19:31
  Speaker 1: that comes within the Sports Broadcasting Act. But the current
• 19:34
  Speaker 1: deals that the NFL's negotiating are with you know platforms
• 19:39
  Speaker 1: are with streaming platforms, pretty hard to see how they're
• 19:44
  Speaker 1: within the wording of the exemption from the Sports Broadcasting Act.
• 19:50
  Speaker 1: So the Sports Broadcasting Act wouldn't give the NFL an exemption.
• 19:55
  Speaker 1: They'd have to go straight under the any Trust laws
• 19:57
  Speaker 1: and then the questions whether violates the any trust laws
• 20:01
  Speaker 1: And they got pretty much socked in the Sunday ticket
• 20:05
  Speaker 1: litigation with a pretty clear binding from a jury. So
• 20:09
  Speaker 1: the pulling of rights apparently keeps some of the teams
• 20:13
  Speaker 1: from negotiating separately to sell their broadcasting rights to you know,
• 20:19
  Speaker 1: maybe other streaming platforms, or put them on YouTube where
• 20:23
  Speaker 1: you know you would just if you didn't want to
• 20:25
  Speaker 1: get a whole package, all you wanted to do was
• 20:28
  Speaker 1: follow the Eagles. You would want to get a package
• 20:31
  Speaker 1: just of Eagles games. But that can't happen now. So
• 20:35
  Speaker 1: they would be in for some litigation if they don't
• 20:38
  Speaker 1: fall within that exemption.
• 20:40
  Speaker 2: And why did the judge toss out that almost five
• 20:44
  Speaker 2: billion dollar jury verdict against the NFL in the Sunday
• 20:48
  Speaker 2: Ticket class action lawsuit?
• 20:51
  Speaker 1: So there are two answers to this. The first answer
• 20:54
  Speaker 1: that I often would give in class was it's the zeros.
• 20:59
  Speaker 1: I get that. That's not a legal answer, but this
• 21:03
  Speaker 1: was probably the largest plane of verdict, certainly an anti
• 21:07
  Speaker 1: trust maybe in any plane of verdict, but four point
• 21:11
  Speaker 1: seven billion dollars before trebling is a lot of money. Now,
• 21:16
  Speaker 1: that can be a reason for knocking down the amount,
• 21:21
  Speaker 1: but that's not what the judge did. He disqualified two
• 21:26
  Speaker 1: of their experts on damages that he had actually qualified
• 21:31
  Speaker 1: at the trial. So it seems a little like, well,
• 21:35
  Speaker 1: let me find a problem with this trial. And interestingly,
• 21:39
  Speaker 1: he did not find a problem with liability in itself.
• 21:43
  Speaker 1: It was on the damages I think. So that case
• 21:45
  Speaker 1: has sort of has been sitting before the Court of
• 21:48
  Speaker 1: Appeals now for a while waiting for a decision.
• 21:52
  Speaker 2: So what so the Justice Department is launching an investigation
• 21:59
  Speaker 2: into whether the NFL and the leagues are breaking antitrust
• 22:03
  Speaker 2: law in their negotiations with streamers. Is that different from
• 22:07
  Speaker 2: the Sunday Ticket.
• 22:09
  Speaker 1: I don't know exactly what negotiations they have in mind.
• 22:13
  Speaker 1: I mean the Sunday Ticket litigation involves an agreement to
• 22:17
  Speaker 1: distribute and also they add it with direct TV first
• 22:21
  Speaker 1: and then with YouTube that if you wanted access to
• 22:24
  Speaker 1: these games, you would buy it and it would be
• 22:28
  Speaker 1: streamed on YouTube. Now there are other they're licensing Netflix, Amazon,
• 22:34
  Speaker 1: so they're licensing a bunch of different platforms. But the
• 22:38
  Speaker 1: problem is the same without regard to which platform it is.
• 22:44
  Speaker 1: It's the question of, you know, is the NFL a
• 22:47
  Speaker 1: single entity or are they a group of however, many teams,
• 22:52
  Speaker 1: thirty two teams all coming together and agreeing that they're
• 22:57
  Speaker 1: going to sell their rights jointly, their rights because each
• 23:01
  Speaker 1: one has the right, you know, the legal right the
• 23:04
  Speaker 1: copyright to the games that they're involved with. So they're
• 23:08
  Speaker 1: pooling all the rights to make a single product called
• 23:12
  Speaker 1: NFL football. So is that coming together is an agreement?
• 23:18
  Speaker 1: And that section one of the Sherman Act, Now, whether
• 23:21
  Speaker 1: that's lawful or not, is something that the NFL presumably
• 23:24
  Speaker 1: would fight. These sports leagues haven't had a great track
• 23:28
  Speaker 1: record in saying, gee, we're coming together for your good.
• 23:31
  Speaker 1: So I don't know. Now when you say the Justice
• 23:35
  Speaker 1: Department is investigating, the careful approach that I would suggest
• 23:40
  Speaker 1: is there are reports that the Justice Department is investigating,
• 23:44
  Speaker 1: we really don't know what they're doing. And frankly, I'm
• 23:47
  Speaker 1: not sure you know. And looking back at the anti
• 23:50
  Speaker 1: trust history here, I don't think the government has necessarily
• 23:55
  Speaker 1: spent its prosecutorial resources worrying about competition in professional sports.
• 24:02
  Speaker 1: They've usually left it to the people with money in
• 24:06
  Speaker 1: the game, the owners, fans, consumers, things like that. So
• 24:11
  Speaker 1: why are then interested in this? Why do you think? Well,
• 24:17
  Speaker 1: you know the answer. The staff report you just mentioned,
• 24:20
  Speaker 1: the House and HRUST Subcommittee staff report starts out with
• 24:25
  Speaker 1: the quote from the President there's something very sad when
• 24:29
  Speaker 1: they take football away from many, many people. He said
• 24:33
  Speaker 1: that in May. And I'm glad that he has empathy for,
• 24:37
  Speaker 1: you know, the cost of living.
• 24:40
  Speaker 2: I'm going to refrain from making a comment on that, Harry, Harry.
• 24:43
  Speaker 2: This Justice Department has not been shall we say, strong
• 24:47
  Speaker 2: on anti trust enforcement. They walked away from the Ticketmaster
• 24:52
  Speaker 2: Live Nation trial and left it to the States, who
• 24:55
  Speaker 2: then won. They also walked away from the Paramount Warner
• 24:59
  Speaker 2: Brothers Discovery merger, leaving it to the States to sue.
• 25:04
  Speaker 2: Do you think they would really sue the NFL.
• 25:07
  Speaker 1: I don't really see any government group doing anything here
• 25:11
  Speaker 1: because they're just going to rub some important economic interests
• 25:15
  Speaker 1: the wrong way. I mean, I don't see Congress doing anything.
• 25:18
  Speaker 1: The House report didn't say, oh my god, we have
• 25:22
  Speaker 1: to repeal this statute or oh my god, we have
• 25:25
  Speaker 1: to amend it, or oh my god, we have to
• 25:28
  Speaker 1: do something, and they said, oh my god, we've got
• 25:30
  Speaker 1: to stand here and look, we've got to keep watch
• 25:33
  Speaker 1: and thank you very much for going on recess. I mean,
• 25:36
  Speaker 1: I don't know. Maybe they've got a big investigation going,
• 25:39
  Speaker 1: but there are a lot of big mergers going on
• 25:43
  Speaker 1: in the economy, and although private parties get involved in those, occasionally,
• 25:48
  Speaker 1: that's really fall into the government to do something about,
• 25:52
  Speaker 1: not that they're doing a lot about them, but at
• 25:54
  Speaker 1: least they've got to review them and they're involved. So
• 25:57
  Speaker 1: they have important or stuff that demands government attention, maybe
• 26:02
  Speaker 1: more than this because we have private enforcement, and the
• 26:06
  Speaker 1: private enforcement's been.
• 26:07
  Speaker 2: At work, right, So there might be a private anti
• 26:11
  Speaker 2: trust suit.
• 26:12
  Speaker 1: Indeed, I mean that's you know, that's what Sunday Ticket
• 26:15
  Speaker 1: litigation was, and you know, would not be surprising if
• 26:19
  Speaker 1: there were.
• 26:19
  Speaker 2: So we shall see. Stay with me. Coming up next
• 26:23
  Speaker 2: on the Bloomberg Lawn Show, Paramount is trying an interesting
• 26:27
  Speaker 2: tactic to try to get a resolution of the anti
• 26:30
  Speaker 2: trust case filed by twelve states to block the Paramount
• 26:35
  Speaker 2: Warner Brothers Discovery merger. I'm June Grosso and you're listening
• 26:39
  Speaker 2: to Bloomberg. Let's turn now to the Paramount Warner Brothers
• 26:44
  Speaker 2: Discovery merger. So, twelve states Democratic led states, led by
• 26:52
  Speaker 2: California's Attorney General Rob Bonta, are suing to block the merger,
• 26:58
  Speaker 2: and David Ellison told Paramount senior executives last week that
• 27:04
  Speaker 2: he's prepared to relocate Paramount and Warner Brothers too if
• 27:09
  Speaker 2: the merger is successful, so exiting California. If the California
• 27:14
  Speaker 2: ag doesn't agree to negotiate a settlement in the case.
• 27:18
  Speaker 2: What do you think about a threat like that to
• 27:20
  Speaker 2: a state AG who's suing you.
• 27:23
  Speaker 1: I don't know how that helps him in any particular way.
• 27:27
  Speaker 1: First of all, it doesn't really do anything about the litigation.
• 27:30
  Speaker 1: So I assume that California and the other states whuper
• 27:34
  Speaker 1: filed would still have jurisdiction in one way or the
• 27:38
  Speaker 1: other over this merger because they've got movie theaters, So
• 27:43
  Speaker 1: I don't know how it affects that. So it seems
• 27:46
  Speaker 1: just like a political threat. I guess he's threatening to
• 27:50
  Speaker 1: destroy Hollywood in some ways. I feel like the discussion
• 27:54
  Speaker 1: of this is that Ellison and the I don't know
• 27:58
  Speaker 1: who's advising him, they just don't see to want to
• 28:00
  Speaker 1: see the anti trust issues, and they just don't want
• 28:03
  Speaker 1: to see this as a piece of real litigation. They're
• 28:07
  Speaker 1: entranced by Bonta standing in front of the Hollywood sign
• 28:10
  Speaker 1: and you know that's that's theater, but it's not the litigation.
• 28:15
  Speaker 1: So it's just hard to know what he thinks is
• 28:18
  Speaker 1: going to move these attorneys general. But moving is not
• 28:23
  Speaker 1: going to be moving these attorneys general.
• 28:26
  Speaker 2: That only takes that one Attorney General. It doesn't take
• 28:28
  Speaker 2: any rest.
• 28:30
  Speaker 1: So that he's going to have James to negotiate with. Okay, Yeah.
• 28:36
  Speaker 1: The bottom line problem is this is a case that,
• 28:40
  Speaker 1: as it's written, is really hard to settle. I mean,
• 28:44
  Speaker 1: you either win or lose this litigation, and maybe he
• 28:47
  Speaker 1: doesn't want to acknowledge that of something, and to some
• 28:49
  Speaker 1: extent he's started talking past litigation. But either they're going
• 28:52
  Speaker 1: to win or lose this litigation. I don't see it settling.
• 28:56
  Speaker 1: You know, maybe in the end they'll just have to
• 28:57
  Speaker 1: restructure this deal.
• 28:59
  Speaker 2: What about the paramount has agreed to sign contracts with
• 29:02
  Speaker 2: the major theater chains guaranteeing they'll release thirty movies a
• 29:07
  Speaker 2: year in cinemas if they acquire Warner Brothers three year agreements.
• 29:13
  Speaker 1: Great. So, first of all, this is not the kind
• 29:16
  Speaker 1: of thing that convinces any legitimate, any trust enforcer of anything.
• 29:22
  Speaker 1: So any time you say it's a three year contract,
• 29:25
  Speaker 1: and any trust enforcer says, okay, what about the fourth year.
• 29:29
  Speaker 1: You want to merge forever and you're giving me something
• 29:32
  Speaker 1: for three years, it's not all that good. Second is, so,
• 29:37
  Speaker 1: what's the deal you're promising thirty movies? Doesn't say these
• 29:42
  Speaker 1: are thirty you would not have made. That was an
• 29:45
  Speaker 1: earlier claim. Thirty movies you promise to distribute in these
• 29:50
  Speaker 1: two major chains. Rate come look at my coalition and
• 29:56
  Speaker 1: ask whether they've got any movie theaters that are not
• 29:59
  Speaker 1: in these chains and are not part of this deal.
• 30:02
  Speaker 1: They'll love this so great. Now you've hooked up with
• 30:06
  Speaker 1: the two major distributors for exclusive distribution of your films.
• 30:10
  Speaker 1: I think I'll throw that in as another count of
• 30:14
  Speaker 1: any competitive behavior. I really don't get it. You know,
• 30:18
  Speaker 1: if he said we promised to make deals with all
• 30:21
  Speaker 1: of the movie theaters in the United States, you will
• 30:24
  Speaker 1: give a ninety day window that we won't put these
• 30:27
  Speaker 1: movies online anything we make that looks a little different.
• 30:31
  Speaker 1: I'm not sure what it gets in particularly, But again
• 30:35
  Speaker 1: this is I don't get it.
• 30:36
  Speaker 2: If you don't get it, then it's not gettable. So
• 30:41
  Speaker 2: does it matter that the UK Authority gave the deal
• 30:45
  Speaker 2: to go ahead, So.
• 30:46
  Speaker 1: I think that's a plus for the deal. The UK
• 30:49
  Speaker 1: Authority was worried about editorial controls, and that's not part
• 30:54
  Speaker 1: of this complaint. So in some ways, I mean, it's
• 30:58
  Speaker 1: sort of ironic. This is not what the States are
• 31:02
  Speaker 1: complaining about. They are not complaining about CNN being run
• 31:06
  Speaker 1: by CBS even Oh again, Ellison said, oh, that's what
• 31:11
  Speaker 1: you're upset about, and Bonta says, not us. You look
• 31:15
  Speaker 1: in the complaint, see it, and hasn't mentioned to me
• 31:19
  Speaker 1: that was one of the political things that was pushing
• 31:22
  Speaker 1: the merger. So it's really ironic that Ellison wants to
• 31:26
  Speaker 1: pen that on the States. The States want to say,
• 31:30
  Speaker 1: not me, We are so clever, we are not going there, folks.
• 31:35
  Speaker 2: Well, as you said last time we talked, it was
• 31:38
  Speaker 2: a well drawn complaint by a powerhouse antitrust lawyer that
• 31:43
  Speaker 2: the state of California hired, so they appeared to have
• 31:46
  Speaker 2: made the right choices. Always a pleasure, Harry, thanks so much.
• 31:50
  Speaker 2: That's Professor Harry First of NYU Law School. And that's
• 31:54
  Speaker 2: it for this edition of The Bloomberg Law Show. Remember
• 31:57
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• 31:59
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• 32:03
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• 32:09
  Speaker 2: and remember to tune into The Bloomberg Law Show every
• 32:11
  Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
• 32:15
  Speaker 2: and you're listening to Bloomberg