# Etan Patz Murder Conviction Reinstated & Upcoming SCOTUS Cases

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 23 Jun 2026, 35 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/2d524ae7-24f2-4449-ad5f-b47200341be3/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Former Manhattan prosecutor and criminal defense attorney Paul Callan, of counsel at Edelman & Edelman, discusses the Supreme Court reinstating the murder conviction of Pedro Hernandez for the murder of 6-year-old Etan Patz who became the poster child for missing children. Then constitutional law expert Harold Krent, a professor at the Chicago-Kent College of Law, discusses the high profile cases the Supreme Court has yet to decide this term including cases on birthright citizenship and the firing of a Federal Reserve Governor. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law, with June Grossel from Bloomberg Radio.
[0:08] Speaker 2: Six year old Eton Pates was the first missing child
[0:12] Speaker 2: to appear on Milk Carton's. His disappearance in nineteen seventy
[0:16] Speaker 2: nine sparked a nationwide campaign to find missing children, but
[0:21] Speaker 2: Pates was never found and his case went unsolved for
[0:25] Speaker 2: more than a decade. It wasn't until twenty seventeen that
[0:29] Speaker 2: Pedro Hernandez was convicted of his murder and kidnapping and
[0:34] Speaker 2: sentenced to twenty five years to life in prison.
[0:37] Speaker 1: But the case didn't end there.
[0:39] Speaker 2: New York Capella courts affirmed his conviction, but last year
[0:43] Speaker 2: the Second Circuit Federal Appeals Court reversed and ordered a
[0:48] Speaker 2: new trial for Hernandez because of the way the trial
[0:51] Speaker 2: judge had answered a question from jurors. But today the
[0:55] Speaker 2: Supreme Court reversed the Second Circuit and reinstated the murder
[0:59] Speaker 2: can against Hernandez, finding federal courts shouldn't second guess state courts.
[1:06] Speaker 2: My guest is former Manhattan prosecutor and criminal defense attorney
[1:10] Speaker 2: Paul Callen of counsel at Adelman and Adelman. Paul tell
[1:14] Speaker 2: us about the disappearance of Eton Pates, the six year
[1:18] Speaker 2: old was kidnapped off the streets of New York in
[1:22] Speaker 2: nineteen seventy nine, and he became the poster child for
[1:26] Speaker 2: missing children.
[1:27] Speaker 3: I think to this day you're absolutely right about that.
[1:30] Speaker 3: As a matter of fact, I think this case has
[1:33] Speaker 3: altered child rearing in the United States permanently. You know,
[1:37] Speaker 3: it used to be mom would send kids out the
[1:40] Speaker 3: back door and say go play, come back for supper.
[1:42] Speaker 3: Now the parents follow them around, follow them to the
[1:45] Speaker 3: bus stop. They're all terrified the kids are going to
[1:48] Speaker 3: be kidnapped. And it all started with Eton Pates, who
[1:51] Speaker 3: was going to catch a bus to his school in
[1:55] Speaker 3: Soho in New York, and he was kidnapped and apparently murdered.
[2:00] Speaker 3: And only recently have we had a final resolution of
[2:03] Speaker 3: the case in terms of who committed the murder. An
[2:06] Speaker 3: individual named Hernandez, whose conviction was now reaffirmed by the
[2:11] Speaker 3: Supreme Court.
[2:12] Speaker 2: Tell us about the confession, because there were some troubling
[2:14] Speaker 2: things about the confession.
[2:16] Speaker 3: Yes there were. His brother in law reported to the
[2:20] Speaker 3: police that Hernandez had confessed to the murder of Eton Pates.
[2:25] Speaker 3: And of course Eton pates murder has been a very,
[2:28] Speaker 3: very famous case throughout the United States ever since it
[2:31] Speaker 3: happened back in nineteen seventy nine, long time ago. In
[2:34] Speaker 3: any event, the brother in law reports to the police
[2:37] Speaker 3: that his quote low IQ relative has confessed to the murder,
[2:43] Speaker 3: and Camden County, New Jersey, police pick him up and
[2:47] Speaker 3: they start questioning him, but they don't give him as
[2:49] Speaker 3: Miranda warnings. He confesses that he was working in a
[2:53] Speaker 3: bodega in Soho when Eton Pates came in to buy
[2:57] Speaker 3: a drink as he was on his way to the stop,
[3:00] Speaker 3: and that he murdered Eton Pates and disposed of the body,
[3:05] Speaker 3: presumably throwing the body into a dumpster behind the deli.
[3:09] Speaker 3: Full confession to the murder. The police, then, who have
[3:13] Speaker 3: not given him his Miranda warnings, now say we should
[3:16] Speaker 3: give him the Miranda warnings and videotape this confession. And
[3:20] Speaker 3: that's exactly what they do. They give him Miranda warnings,
[3:23] Speaker 3: videotape the confession, and then they call the District Attorney's
[3:27] Speaker 3: office in New York and say, you better come out here.
[3:29] Speaker 3: We have somebody confessing to the murder of Eton Pates. Now,
[3:33] Speaker 3: this was a case that had gone cold for a
[3:35] Speaker 3: long time, so obviously the Manhattan DIA's Office was very
[3:39] Speaker 3: interested in that. Apparently, while all of this is going on,
[3:43] Speaker 3: Hernandez also talks to his wife and his daughter Rosemary
[3:47] Speaker 3: and Becky, and he confesses to both of them that
[3:50] Speaker 3: he's in fact the person who killed Eton Pates. He's
[3:54] Speaker 3: then picked up by the Manhattan DIA's Office taken back
[3:57] Speaker 3: into New York, where he confesses again to the murder,
[4:01] Speaker 3: this time again on videotape, so we now have two
[4:04] Speaker 3: videotaped confessions. Later on, during pre trial proceedings, he meets
[4:09] Speaker 3: with a psychiatrist. He confesses to the psychiatrist that he's
[4:13] Speaker 3: the murderer, and while giving that confession, he also tells
[4:16] Speaker 3: the psychiatrist that he admitted this to a prayer group
[4:20] Speaker 3: at one point over the last twenty years. So by
[4:22] Speaker 3: my count, I think he's confessed now seven times to
[4:27] Speaker 3: the murder. All right, So the case goes to trial
[4:31] Speaker 3: in New York. The first trial, by the way, ends
[4:33] Speaker 3: in a hung jury. He's retried, and the second jury
[4:38] Speaker 3: comes back with a jury question. And the jury question
[4:42] Speaker 3: is this, if he was not given his Miranda warnings
[4:47] Speaker 3: properly and therefore did not voluntarily confess, is it okay
[4:54] Speaker 3: for us to consider the other confessions that occurred after this.
[4:57] Speaker 3: In substance, that was the question that was asked by
[5:00] Speaker 3: the jury. The way they phrased it was, the jury said,
[5:03] Speaker 3: do we have to disregard the subsequent confessions if the
[5:08] Speaker 3: first confession was not voluntary? The judge says one word, no, okay, no,
[5:15] Speaker 3: you don't have to disregard the subsequent confessions. And after that,
[5:21] Speaker 3: the jury deliberates for another week and they find Hernandez
[5:25] Speaker 3: guilty of the kidnapping and murder of Eton Pates. So
[5:29] Speaker 3: that's the story in a nutshell up until we get
[5:32] Speaker 3: to subsequent court decisions.
[5:34] Speaker 2: And I want to note it was a five month
[5:36] Speaker 2: long trial with sixty six witnesses, so it wasn't just
[5:40] Speaker 2: based on that confession. So through the state, the state
[5:44] Speaker 2: appellate courts affirmed the conviction, and then the federal appellate Court,
[5:49] Speaker 2: the Second Circuit, in one hundred page opinion last year,
[5:52] Speaker 2: reversed and ordered that he get a new trial. So
[5:56] Speaker 2: what was their reversal based on.
[5:58] Speaker 3: The decision was based on the judge's instructions to the
[6:03] Speaker 3: jury when they came back with a question, that question
[6:07] Speaker 3: that I just repeated, do we have to disregard the
[6:09] Speaker 3: subsequent confessions, where the judge just said no. That was
[6:13] Speaker 3: the focus. It was a petition for habeas corpus, which
[6:17] Speaker 3: you know is an elaborate procedure that happens in most
[6:20] Speaker 3: serious criminal cases where an appeal has gone through the
[6:23] Speaker 3: whole state system and the defendant is still in jailed.
[6:27] Speaker 3: He keeps losing, and then he finally goes to federal
[6:30] Speaker 3: court and says, my constitutional rights were violated. You the
[6:34] Speaker 3: federal courts should order my release. And it's called a
[6:37] Speaker 3: habeas corpus action. And there's been a law that's been
[6:40] Speaker 3: passed making it very difficult to bring a habeas action
[6:45] Speaker 3: because what was happening was every criminal case the United
[6:47] Speaker 3: States is winding up in federal court, and the Supreme
[6:50] Speaker 3: Court now in this case, makes specific reference to that
[6:54] Speaker 3: particular law. It's called the Adeeper law that places limitations
[6:59] Speaker 3: on habeas corpus. So when the Second Circuit, which is
[7:03] Speaker 3: a federal court, and our bear in mind, this went
[7:05] Speaker 3: to the Appellate Division in New York, the state court,
[7:08] Speaker 3: they looked at it and they said, you know something,
[7:10] Speaker 3: it's all right. The question of whether a confession is
[7:14] Speaker 3: voluntary or involuntariory, by the way, is generally decided by
[7:17] Speaker 3: a judge. It's not usually decided by a jury. And
[7:20] Speaker 3: so the Appellate Division said, under New York law, the
[7:24] Speaker 3: way this confession was evaluated was perfectly proper, okay. So
[7:29] Speaker 3: then they go went to federal court with this, and
[7:31] Speaker 3: the second circuit looks at it, which is the appellate
[7:34] Speaker 3: court on the federal side, after the district court looks
[7:38] Speaker 3: at it first, and they say, well, we think there's
[7:41] Speaker 3: a problem here. The judge should have explained in more detail,
[7:46] Speaker 3: other than saying no to the jury, that there could
[7:49] Speaker 3: be a problem with the confession, that there was insufficient
[7:53] Speaker 3: what we call attenuation between the initial confession and the
[7:58] Speaker 3: subsequent confession, which also gets us back to another rule,
[8:03] Speaker 3: which is the Mitchell versus Siebert rule that came about
[8:08] Speaker 3: when the cops were misusing Miranda warnings, and what they
[8:12] Speaker 3: would do is they would bring you into the station,
[8:15] Speaker 3: get you to confess to a crime, and after you
[8:18] Speaker 3: gave the complete detailed confession, they'd walk out of the
[8:22] Speaker 3: room and then they'd come back in and give you
[8:24] Speaker 3: your Miranda warnings and say, by the way, that confession.
[8:27] Speaker 3: Can you repeat that police for the record, and now
[8:30] Speaker 3: they videotape your confession all right. Now, when the federal
[8:33] Speaker 3: courts looked at this, they said, this is completely improper.
[8:37] Speaker 3: It's an attempt to get around the Miranda warnings. And
[8:40] Speaker 3: once somebody has been possibly coerced into giving a confession
[8:44] Speaker 3: because they haven't heard the Miranda warnings, of course they're
[8:47] Speaker 3: going to repeat the confession. So this Missouri Versus Sebert
[8:50] Speaker 3: case said, basically, this is an improper method of administering
[8:55] Speaker 3: the Miranda warnings and if it's done deliberately by the police,
[8:58] Speaker 3: the confession has to be thrown out. So this comes
[9:01] Speaker 3: up now in the Hernandez case, because does that violate
[9:04] Speaker 3: the Missouri Versus Sebert rule. Well, the court in New
[9:09] Speaker 3: York said no, there was no violation of that in
[9:12] Speaker 3: our opinion. But when it goes over to the federal court,
[9:15] Speaker 3: the federal court says, yes, there was a violation of that.
[9:19] Speaker 2: So the Second Circuit reversed the conviction and ordered a
[9:23] Speaker 2: new trial for Hernandez. But the Manhattan District Attorney's office
[9:28] Speaker 2: took that decision to the highest court.
[9:31] Speaker 3: The state, and this is very unusual. Now goes to
[9:34] Speaker 3: the Supreme Court to try to get a conviction reinstated.
[9:37] Speaker 3: You know, usually you see a defendant has been convicted
[9:40] Speaker 3: going to the Supreme Court to get his case thrown out.
[9:42] Speaker 3: This is the opposite. The prosecutor's looking for justice now.
[9:45] Speaker 3: So now when they go to the Supreme Court, the
[9:48] Speaker 3: Supreme Court says, no, there was no violation here because
[9:52] Speaker 3: the state looked at it under state law. The administration
[9:57] Speaker 3: of miranda warnings was done proper. There was proper attenuation,
[10:02] Speaker 3: and that's a question for the judge, not the jury.
[10:05] Speaker 3: The Seber case never said anything about jury instruction. So
[10:10] Speaker 3: this is an overreach by the Second Circuit and there
[10:13] Speaker 3: was no right for a habeas corpus to be brought here.
[10:15] Speaker 3: So we're reinstating the conviction.
[10:18] Speaker 2: Paul, Did the Supreme Court reverse because the Second Circuit
[10:22] Speaker 2: didn't properly follow federal law or because state law should
[10:26] Speaker 2: have applied here.
[10:27] Speaker 3: Well, it's a complex question because they're saying that in
[10:31] Speaker 3: this situation, the state had the right to evaluate whether
[10:38] Speaker 3: there was a proper attenuation of the confession. In other words,
[10:42] Speaker 3: whether the secondary administration of miranda warnings by the Manhattan
[10:48] Speaker 3: DA and by the police violated New York law, and
[10:53] Speaker 3: New York said, no, that doesn't violate our law. And
[10:56] Speaker 3: in New York a jury can sometimes decide whether a
[11:00] Speaker 3: confession is voluntary or not. Under federal law, that's generally
[11:04] Speaker 3: a judge determination that's been made. So the Supreme Court,
[11:09] Speaker 3: looking at this overall, said, well, we've looked at this,
[11:14] Speaker 3: and there's no violation of federal law as it exists.
[11:18] Speaker 3: And if there was a violation of state law, the
[11:22] Speaker 3: state has already made a decision here that there was
[11:25] Speaker 3: no violation of New York state law. So the federal
[11:28] Speaker 3: government has no business interfering in how the State of
[11:32] Speaker 3: New York interprets the administration of the Miranda warnings. And
[11:36] Speaker 3: the confession is a voluntary confession. So it's kind of
[11:40] Speaker 3: a question of how you evaluate due process under state
[11:43] Speaker 3: and federal law on whether there's a conflict between the
[11:47] Speaker 3: sovereign entities. And here the Supreme Court was saying, you know,
[11:50] Speaker 3: there are certain things that we leave to the state,
[11:52] Speaker 3: and the federal Habeas Corpus Act says we should leave
[11:56] Speaker 3: most of those things alone unless it's absolutely egregious violation
[12:02] Speaker 3: of somebody's constitutional rights. And let's step back and look
[12:06] Speaker 3: at this case. Tune. The guy confessed seven times to
[12:10] Speaker 3: the murder, all right, So I think the Supreme Court
[12:13] Speaker 3: was looking at it saying, well, you know, we're not
[12:16] Speaker 3: worried about whether we have the right guy or not.
[12:18] Speaker 3: We're just looking at some technicalities here. And the New
[12:22] Speaker 3: York courts looked at those technicalities and said, there's no
[12:25] Speaker 3: violation of New York law here, so we're not going
[12:28] Speaker 3: to set it aside because there's no violation of federal law.
[12:31] Speaker 2: I mean, the Second Circuit basically wanted the judge to
[12:34] Speaker 2: start explaining to the jury a concurring opinion by Justice
[12:39] Speaker 2: Kennedy in a case from more than twenty years ago.
[12:41] Speaker 2: I mean, it just seemed ridiculous to put in legal terms.
[12:44] Speaker 3: That's exactly what the Second Circuit said. And by the way,
[12:49] Speaker 3: people should know this is what's called a per curiam
[12:52] Speaker 3: decision by the Supreme Court, which means a decision by
[12:56] Speaker 3: the court. We don't know who authored this opinion, but
[12:58] Speaker 3: we do know that the three liberal justices on the
[13:02] Speaker 3: Court voted against. So it was a six' to three
[13:04] Speaker 3: decision by the.
[13:05] Speaker 2: Court nothing from the liberals about why they were dissenting on.
[13:09] Speaker 3: This very, unusual because you, know these procurium decisions are
[13:14] Speaker 3: usually very very, short but this WAS i think an eleven, page,
[13:17] Speaker 3: yeah very very detailed decision by the. Court and you
[13:20] Speaker 3: would think that the three justices who were dissenting would
[13:24] Speaker 3: have weighed in as to why they disagreed with the
[13:27] Speaker 3: other six members of the. Court but, no they said.
[13:29] Speaker 3: Nothing they just said we. Dissent SO i don't know
[13:32] Speaker 3: what the basis of their descent would, be and we'll
[13:34] Speaker 3: never know because this case is for all practical purposes.
[13:38] Speaker 3: OVER i, mean it'll go back to The State court
[13:40] Speaker 3: and the sentence will be reimposed and that'll be the
[13:43] Speaker 3: end of it.
[13:44] Speaker 2: For all practical. Purposes if The Manhattan District attorney's officers
[13:48] Speaker 2: had to retry this, CASE i, mean would they have
[13:51] Speaker 2: been able to put together a case after all these.
[13:54] Speaker 3: Years, well that was one of the things they raised
[13:58] Speaker 3: in their. Briefs it's patently unfair to try to force
[14:02] Speaker 3: us to retry a case as old as this case
[14:06] Speaker 3: and to try to put it all. Together SO i
[14:08] Speaker 3: think they would have had. Trouble but of, course on
[14:10] Speaker 3: the other, hand the case primarily depends upon these, confessions
[14:14] Speaker 3: and it's easy enough to put the confessions into, evidence you,
[14:19] Speaker 3: know through the psychiatrist and through The camden police and
[14:22] Speaker 3: through The MANHATTAN. Das, now if he's going to offer
[14:26] Speaker 3: an insanity, defense, yeah that could take a lot of
[14:29] Speaker 3: time to put In and you, know we don't know
[14:31] Speaker 3: what would happen on a. RETRIAL i, mean the defense
[14:34] Speaker 3: would reassess and figure out a new way to approach the,
[14:36] Speaker 3: case to try to put an effective defense in. Play
[14:39] Speaker 3: AND i will say, this defense attorneys were, very very
[14:42] Speaker 3: adamant in saying he's innocent and this is a really
[14:46] Speaker 3: terrible decision to reinstate this.
[14:48] Speaker 2: Conviction, WELL i Remember Eton pates's parents were very unhappy
[14:53] Speaker 2: when the Second circuit reversed the. Conviction as you might,
[14:57] Speaker 2: expect it's been great having you on, Again.
[14:59] Speaker 1: Paul thanks so.
[15:00] Speaker 2: Much that's Former manhattan prosecutor and criminal defense Attorney Paul,
[15:04] Speaker 2: callen turning now to upcoming decisions at The Supreme. Court
[15:09] Speaker 2: tomorrow's starting at ten. Am The court is going to
[15:11] Speaker 2: announce decisions in cases that have been. Argued the justices
[15:16] Speaker 2: have seventeen cases left to decide before the term, ends
[15:20] Speaker 2: which is usually at the end Of. June seven are
[15:23] Speaker 2: high profile cases and four of them Involve President trump
[15:28] Speaker 2: joining me is an expert in constitutional, Law Harold, krant
[15:31] Speaker 2: a professor at The Chicago Kent college Of. Law how
[15:35] Speaker 2: so many cases left in the last about week and
[15:40] Speaker 2: a half of the, term among them the most high
[15:43] Speaker 2: profile cases of the, term including for, example the birthright
[15:47] Speaker 2: citizenship case Or trump's effort to fire a federal reserve.
[15:51] Speaker 2: GOVERNOR i always hear, that, well these are complicated, cases
[15:56] Speaker 2: and it takes, longer and there are more, concurrences and.
[16:00] Speaker 1: But some of these cases date back To.
[16:02] Speaker 2: December so my question, is are they waiting to issue
[16:09] Speaker 2: all these important decisions together to try to diffuse the
[16:13] Speaker 2: impact of any one.
[16:14] Speaker 1: DECISION i think that's.
[16:17] Speaker 4: PLAUSIBLE i, mean, obviously the springboard does tend to hold
[16:20] Speaker 4: cases of great national importance towards the end so they
[16:23] Speaker 4: can make their way into the. Night so that has
[16:26] Speaker 4: been a. Tendency but, again if they want to mute
[16:30] Speaker 4: some kind of reaction to their decisions being both Rogue
[16:35] Speaker 4: trump administration Anti trump, administration bothering them together is not
[16:39] Speaker 4: a bad. Strategy AND i think the way these cases
[16:42] Speaker 4: lay out is very likely that don't be a.
[16:44] Speaker 2: Split, Yeah so let's start with some of the most
[16:47] Speaker 2: high profile birthright. Citizenship President trump's bid to roll back
[16:52] Speaker 2: automatic birthright citizenship to babies with at least one parent
[16:57] Speaker 2: who's A us citizen Or green.
[16:59] Speaker 4: Card, well the issue is there is The Fourteenth amendment
[17:04] Speaker 4: suggests that there is ciszenship to anybody born within the
[17:08] Speaker 4: jurisdiction of The United, States and the question is what
[17:10] Speaker 4: does jurisdiction. Mean but in terms of the, history in
[17:13] Speaker 4: terms of helping interpreted The Fourteenth, amendment and in terms
[17:16] Speaker 4: of a congressional statute that uses similar, language and The
[17:20] Speaker 4: Supreme court precedent in The Long King arc decision of
[17:24] Speaker 4: one hundred years ago or, so they all point to
[17:27] Speaker 4: the direction that The trump administration is going to, lose
[17:30] Speaker 4: and that we believe that anybody born within the territory
[17:33] Speaker 4: of The United, states with certain defined exceptions such as
[17:37] Speaker 4: The indian, tribes are. Citizens AND i can't believe The
[17:41] Speaker 4: Supreme court is great from that in this.
[17:43] Speaker 2: Case, well as you, say there's A Supreme court case
[17:46] Speaker 2: directly on. Point all the federal courts who ruled on
[17:49] Speaker 2: this found that the executive order runs against the citizenship
[17:54] Speaker 2: clause as well as federal immigration. Law Supreme court, precedent
[17:58] Speaker 2: and when this case was, argued to seem like justices
[18:01] Speaker 2: across the ideological spectrum were dubious About trump's. Order so
[18:06] Speaker 2: why didn't this decision come out?
[18:08] Speaker 1: Fast?
[18:08] Speaker 2: Then are we expecting some kind of narrowing or limited.
[18:13] Speaker 5: INTERPRETATION i can't imagine it in this.
[18:17] Speaker 4: Case so many other, CASES i can imagine a very
[18:19] Speaker 4: limiting perspective that the court will. Take but this seems
[18:22] Speaker 4: to be teed up as a Big trump. Loss AND
[18:25] Speaker 4: i could be deceiving, myself but it seems like that's
[18:28] Speaker 4: going to. Happen and, again as you pointed, out maybe
[18:30] Speaker 4: the court decides it'll try to temper the, sting if you,
[18:34] Speaker 4: will to The trump administration by combining this case with
[18:37] Speaker 4: the one in which it looks more favorably upon What
[18:40] Speaker 4: President trump was.
[18:41] Speaker 2: Done, Okay so now another one that appears from the oral.
[18:44] Speaker 2: Arguments we knew the answer To trump's effort to Fire
[18:48] Speaker 2: Federal Reserve Governor Lisa cook over unproven mortgage fraud. Allegations
[18:54] Speaker 2: so again oral, arguments it seemed like the justices, were you,
[18:57] Speaker 2: know of one mind that he couldn't. Do tell us
[19:01] Speaker 2: about the constitutional issue, Here.
[19:03] Speaker 4: Well the constitutional issue is really two Full the first
[19:08] Speaker 4: is if the president does not have the right to
[19:11] Speaker 4: Remove Lisa kokuho's a federalizer, governor oft will then he
[19:16] Speaker 4: has to find. Cause and The Supreme court has never
[19:18] Speaker 4: defined what cause. Is and the cause in this case
[19:23] Speaker 4: was the allegation of a mortgage fraud from seventy eight
[19:27] Speaker 4: years ago something like, that Before Alisa cooke was a.
[19:30] Speaker 4: Governor so there's really two three parts of this in
[19:35] Speaker 4: which The court is not going to tackle all. Three
[19:37] Speaker 4: one is what does cause? Mean we don't. Know does
[19:40] Speaker 4: cause extend to conduct pre? Appointment we don't. Know my
[19:45] Speaker 4: guess is it. DOES i agree with The trump administration in,
[19:47] Speaker 4: that but also what kind of process is? Due and
[19:52] Speaker 4: can it be? Reviewable so those are the three, issues
[19:54] Speaker 4: AND i think The court will probably rule against The
[19:58] Speaker 4: trump administration on the ground that at least there has
[20:01] Speaker 4: to be an informal opportunity for the officer to give.
[20:07] Speaker 4: First in this, case her side of the story that
[20:10] Speaker 4: she did not engage in any kind of mortgage, fire
[20:13] Speaker 4: she was not given that. Opportunity SO i think a
[20:15] Speaker 4: narrow due process ruling can leave the officer in place
[20:19] Speaker 4: and then leave for another. Day the very important decision
[20:23] Speaker 4: about if we can only remove an officer for a,
[20:25] Speaker 4: cause what is? Caused is it neglective? Duties is it wrong?
[20:30] Speaker 4: Doing you, know what does it?
[20:31] Speaker 2: Constitute so that case was argued In, january and now
[20:35] Speaker 2: another case related though not the, same that was argued
[20:40] Speaker 2: at the beginning Of, december is Where trump wants to
[20:44] Speaker 2: Remove Rebecca Kelly, slaughter who's A Federal trade, commissioner despite
[20:50] Speaker 2: a law that says commissioners can only be fired for specific.
[20:54] Speaker 4: Reasons, yeah and this has been in the crosshairs of
[20:56] Speaker 4: The trump. Administration this is part of the whole unitary
[20:59] Speaker 4: executive movement saying that the president must be able to
[21:02] Speaker 4: closely manage his subordinates in the executive, branch and the
[21:07] Speaker 4: administration as several ball before him as, well has Attacked Humpery's,
[21:11] Speaker 4: executor which Protected congress's decision to infect shield the some
[21:16] Speaker 4: officers From matt will renewbal. Authority and so that's been
[21:20] Speaker 4: a target for many. Administrations he picked the exact, target
[21:24] Speaker 4: the Same Federal Trade commission that was in The Humphrey's executor.
[21:27] Speaker 4: Decision AND i think the consensus is largely that The
[21:31] Speaker 4: Supreme court will Overrule humphrey's executor at least in part
[21:35] Speaker 4: of not in the hole and so giving The trump
[21:38] Speaker 4: administration a big. Victory but the question in my mind
[21:42] Speaker 4: is how far will the case. Go will they say
[21:45] Speaker 4: all executive branch? Officials will they say all superior executive branch?
[21:49] Speaker 4: Officials will they say only some with certain types of enforcement? Responsibilities,
[21:55] Speaker 4: so for, instance there are executive branch agencies that engage in,
[21:59] Speaker 4: acasion would their membership also have to be removable at
[22:04] Speaker 4: will by the. President so the skull of where the
[22:08] Speaker 4: president under The constitution Or article two must have this
[22:12] Speaker 4: close authority to supervise subordinates is at stake. HERE i
[22:16] Speaker 4: don't think the court will reach out to think about
[22:19] Speaker 4: all of those, contexts but it will at least contain
[22:22] Speaker 4: the decision will contain some hints about why The Federal
[22:27] Speaker 4: Trade commission heads must be removable at will and what
[22:31] Speaker 4: other similar agencies must be conformed in that same.
[22:34] Speaker 2: Structure do you think that they might announce these two decisions?
[22:39] Speaker 2: Together do you think that one is waiting on the.
[22:41] Speaker 1: Other they.
[22:43] Speaker 4: COULD i, mean there'll be a nice pair both because
[22:45] Speaker 4: it's really about the same issue in different forms of
[22:48] Speaker 4: the same, issue and one will probably go against the
[22:52] Speaker 4: administration and one will go for the.
[22:54] Speaker 2: Administration coming up more on the Upcoming Supreme court, decisions
[22:59] Speaker 2: including a seeming divide on election day ballot. Deadlines you're
[23:04] Speaker 2: listening To. Bloomberg tomorrow The Supreme court will be announcing
[23:09] Speaker 2: decisions in argued. Cases there are seventeen cases left to
[23:14] Speaker 2: decide before the justices leave for their summer. Vacations i've
[23:19] Speaker 2: been talking To Professor Harold krent of The Chicago Kent
[23:22] Speaker 2: college Of. Law how let's turn now to The court's
[23:26] Speaker 2: decision about A mississippi law that allows mail in ballots
[23:30] Speaker 2: to be counted as long as they arrive within five
[23:33] Speaker 2: business days of election. Day as many as twenty nine
[23:37] Speaker 2: states have similar.
[23:38] Speaker 4: Laws so the issue is When congress has designated election
[23:43] Speaker 4: day as the First tuesday after the Second, monday IF
[23:46] Speaker 4: i remember correctly In, november what does that? Mean can
[23:50] Speaker 4: you then count votes after election day? Itself unless all
[23:53] Speaker 4: the votes be tallied by election? Day and obviously In
[23:58] Speaker 4: mississippi and twenty twenty in The pandemic allowed for counting
[24:02] Speaker 4: ballots after election, day as does over half the. States
[24:07] Speaker 4: and so it's a really interesting vote Because mississippi is
[24:10] Speaker 4: A republican state and it's the one that's going against
[24:12] Speaker 4: The trump. Administration and it's interesting in addition because of
[24:17] Speaker 4: the fact that if you think of, federalism this is
[24:20] Speaker 4: a effort really to limit the rights of the states
[24:23] Speaker 4: visa via the federal. Government so it's some odd shiging
[24:26] Speaker 4: betfellows in this. Case BUT i think it's just a
[24:31] Speaker 4: kind of a more narrow focus on what does election
[24:33] Speaker 4: day mean and do we need to have decisions or
[24:37] Speaker 4: votes counted at least by election, day if not decisions
[24:41] Speaker 4: in order to conform to What congress had in mind
[24:44] Speaker 4: by saying there should be one election day in the.
[24:46] Speaker 2: Country during the oral, arguments The Chief justice And Justice
[24:51] Speaker 2: barrett raised some questions, about, well if we don't allow
[24:54] Speaker 2: these late arriving, ballots does that have an effect on early,
[24:58] Speaker 2: voting because early voting it's before the date That congress, said.
[25:03] Speaker 4: Yeah it. DEPENDS i think they could get around that
[25:05] Speaker 4: by saying that election day means votes have to be,
[25:08] Speaker 4: tallied as opposed to saying that it's not a prohibition
[25:12] Speaker 4: on votes being tallied, beforehand at least some. Votes SO
[25:17] Speaker 4: i think there is a distinction. There but you, know
[25:19] Speaker 4: you could say that a broad definition of election day
[25:23] Speaker 4: would really limit the discretion of the states to have
[25:27] Speaker 4: early voting and late. Voting and, again think about military,
[25:30] Speaker 4: voting voting during. Wars we've never been able to count
[25:34] Speaker 4: all the votes on election day because you, know individuals
[25:37] Speaker 4: in our country are dispersed for work for military reasons and.
[25:41] Speaker 4: Others so it's very it's a practical. Matter it's a
[25:44] Speaker 4: very important, decision but one in which it's right NOW
[25:47] Speaker 4: i think too close to.
[25:48] Speaker 2: Call, yeah maybe a division down ideological, lines Which i'm
[25:52] Speaker 2: expecting several of.
[25:54] Speaker 4: Those tradition in this case is it will not be
[25:57] Speaker 4: strictly on ideological, lines BECAUSE i think think the issues
[26:00] Speaker 4: really do cut across the ideological.
[26:02] Speaker 1: Spectrum, okay we shall, See, yes we.
[26:05] Speaker 3: Will.
[26:06] Speaker 2: Won't we won't place a bed on, it but we'll.
[26:08] Speaker 2: See so, now there are federal caps that limit spending
[26:13] Speaker 2: by political parties in coordination with. Candidates have The conservatives
[26:17] Speaker 2: on The Supreme court ever found a restriction on campaign
[26:21] Speaker 2: contributions that they agreed.
[26:24] Speaker 4: WITH i think this one will be decided on ideological.
[26:27] Speaker 4: Grounds and obviously the idea that money is speech resonates
[26:34] Speaker 4: greatly with a certain ideological part of The Supreme, court
[26:37] Speaker 4: it is. United and here in this, case they're looking
[26:41] Speaker 4: at what's called political coordinated, spending whether the political parties
[26:45] Speaker 4: can coordinate with the campaigns of various individual candidates to
[26:49] Speaker 4: evade the limits set By. Congress and so this really
[26:53] Speaker 4: at the heart is Can congress limit at all the
[26:57] Speaker 4: types of expenditures that are made to influence Campaigns democrats
[27:00] Speaker 4: work For, republicans and obviously The democrats would benefit from
[27:05] Speaker 4: this as well if the caps are, sprinking though what
[27:07] Speaker 4: they have not attacked the theory in this particular.
[27:10] Speaker 2: Case why with campaign finance contributions is It republicans that
[27:15] Speaker 2: want to get rid of them And democrats that want
[27:17] Speaker 2: to keep.
[27:18] Speaker 4: THEM i think it's a sense that even Though democrats would,
[27:21] Speaker 4: benefit they know that they need to be sort of
[27:23] Speaker 4: consistent with their, base and their base tend to be smaller,
[27:29] Speaker 4: donors at least that's perceived to be the, case even
[27:32] Speaker 4: if it's not, true and so they want to be
[27:35] Speaker 4: seen as people not wanting big money to rule. Everything
[27:39] Speaker 4: and that's a message that resonates with at least a
[27:42] Speaker 4: large segment Of democratic.
[27:43] Speaker 2: Voters let's turn out to transgender issues in, sports state
[27:49] Speaker 2: laws In idaho And West virginia ban transgender girls and
[27:53] Speaker 2: women from competing on female athletic. Teams AND i mean
[27:57] Speaker 2: there are twenty seven states with similar laws. Us the
[28:00] Speaker 2: arguments on both sides of this, case.
[28:03] Speaker 4: SURE i, mean the apartments of the band say that
[28:05] Speaker 4: this is a violation both With title, nine which limits
[28:09] Speaker 4: the kinduct of any kind of school district that accepts
[28:12] Speaker 4: federal money and violates the Equal protection clause of The.
[28:16] Speaker 4: Constitution so it's an echo of the case that The
[28:19] Speaker 4: Supreme court decide just recently In, scrimmette when the case
[28:22] Speaker 4: rejected similar claims Against tennessee's ban on hormone treatment for.
[28:28] Speaker 4: Minors in this, case though it's participation in sporting events
[28:31] Speaker 4: in high, school people have more of a visceral reaction to,
[28:34] Speaker 4: IT i think than the, use for, instance of different.
[28:37] Speaker 4: Bathrooms AND i think that The conservatives will probably when
[28:43] Speaker 4: on this one on the theory that there's at least
[28:45] Speaker 4: a rational basis for school districts to, decide either because
[28:49] Speaker 4: of safety or because of, fairness not to allow trans
[28:54] Speaker 4: kids on women's, streams but to allow trans kids on men's.
[28:58] Speaker 4: Teams is obviously a lack of. Cemit but then the
[29:01] Speaker 4: only WAY i think for The challenges to win is
[29:04] Speaker 4: if they get some kind of increased protection due to
[29:07] Speaker 4: the claim either that this is masquerade of sex, discrimination
[29:12] Speaker 4: that this is like The title seven case in Boss,
[29:15] Speaker 4: stock because where The Supreme court held that any kind
[29:18] Speaker 4: of discrimination on the basis of appearance or gender or
[29:22] Speaker 4: being trans it was a violation Of title. Seven though you,
[29:26] Speaker 4: Know justice score such signal that he've Viewed title nine
[29:29] Speaker 4: differently The title seven that even though they were modeled
[29:31] Speaker 4: on the same. Thing so you, know the question really
[29:35] Speaker 4: IS i think most people have a consensus that this
[29:37] Speaker 4: would pass any kind of rational basis. Test but if
[29:41] Speaker 4: the scrutiny gets more, strict then it's more difficult to
[29:44] Speaker 4: justify the. Ban and we don't have good statistics on
[29:48] Speaker 4: what is the risk of having trans kids play on
[29:51] Speaker 4: high schools sports. Teams we don't know. Them then the
[29:54] Speaker 4: risks are more, theoretical and so of any kind of
[29:57] Speaker 4: heightened attention that is paid WOULD i think result in
[30:02] Speaker 4: a victory for the challengers not protecting. That but that
[30:06] Speaker 4: would be the case if the scrutiny is.
[30:09] Speaker 2: Raised the woman in The idaho case try to get
[30:12] Speaker 2: the case drop because she was no longer. Competing idaho
[30:16] Speaker 2: didn't want the case. Dropped in The West virginia, case
[30:19] Speaker 2: there was an argument that the young woman had puberty,
[30:24] Speaker 2: blockers so she never really had those hormones that would
[30:28] Speaker 2: have given her an edge male. Hormones you, KNOW i
[30:31] Speaker 2: wonder if that they're not going to get that deeply
[30:34] Speaker 2: into it and just base the decision on the plaintiffs being.
[30:38] Speaker 5: Transgender, yeah you, Know my sense from looking at the
[30:41] Speaker 5: transcript oral argument is that The court could get rid
[30:44] Speaker 5: of this case as you, suggest but unlikely to The
[30:47] Speaker 5: court seems to want to address these, issues just as
[30:51] Speaker 5: it Did inscrammtti last term and sort of widen the
[30:56] Speaker 5: areas in which states that they so choose can rule
[31:00] Speaker 5: against transkit.
[31:02] Speaker 4: Equality that's my. Sense but there are the seats there
[31:06] Speaker 4: that The court wants to. Ducket it can duck it,
[31:09] Speaker 4: in probably with a good face.
[31:12] Speaker 1: If it doesn't duck.
[31:13] Speaker 2: It this is one of the cases WHERE i, SAY
[31:15] Speaker 2: i will fall off my chair if they actually rule
[31:20] Speaker 2: in favor of transgender, rights because since the Boss stock,
[31:22] Speaker 2: case they have ruled consistently against transgender rights AND lgbtq.
[31:28] Speaker 1: RIGHTS i, mean it's just pretty.
[31:30] Speaker 4: Obvious, Yeah Boss stock was the high, point if you,
[31:34] Speaker 4: will a pinnacle of protection for people WERE lgbt and
[31:38] Speaker 4: trans and there has been a starting decline after, that
[31:43] Speaker 4: AND i predict that that trend will.
[31:46] Speaker 1: Continue so then we Have.
[31:48] Speaker 2: Bayer the company says that federal regulators didn't require a
[31:52] Speaker 2: cancer warning and so state regulators shouldn't have been allowed
[31:57] Speaker 2: to require a cancer warning. Either this is only about
[32:02] Speaker 2: one suit involving failure to, warn but there are so
[32:06] Speaker 2: many suits Against.
[32:07] Speaker 4: BAYER i think it's about sixty. Thousand so under The
[32:11] Speaker 4: Federal Regulation, statute it seems that THE fda, decides you,
[32:15] Speaker 4: know what is safe what is not, safe and has
[32:18] Speaker 4: only approved warnings or not warnings on. Labels of this, Case,
[32:22] Speaker 4: roundup which is a well known what's a well known
[32:25] Speaker 4: a bunch of side which obviously had bad repercussions and
[32:29] Speaker 4: it leads to. Cancer and so the question is that
[32:32] Speaker 4: could states or learn About roundup without any kind of federal.
[32:36] Speaker 4: Blessing and you, KNOW i think here the administration is
[32:41] Speaker 4: on a pretty strong ground to have some kind of
[32:43] Speaker 4: uniform regulation that you, know to have rather up being
[32:46] Speaker 4: okay in one state or have a warning in one
[32:49] Speaker 4: state and not in the. Other and what about, runoff you,
[32:51] Speaker 4: know in terms of the, environment is not a kind
[32:54] Speaker 4: of crazy way to think about regulation that seems to
[32:58] Speaker 4: need a uniform or. Approach so it's the federal regulation
[33:03] Speaker 4: From congress that's at least directed From, congress seems to
[33:07] Speaker 4: contemplate one size fits all regulation of any chemicals coming
[33:11] Speaker 4: within the purview of this particular regulatory. Scheme and SO
[33:16] Speaker 4: i think that on, average again we're going to have
[33:18] Speaker 4: to see a SPLIT i think in ideological leanings amongst the.
[33:22] Speaker 4: JUSTICES i think there'll be a coalition both of conservative
[33:26] Speaker 4: and liberal judges going both. Ways but IF i had to,
[33:29] Speaker 4: PREDICT i would predict that the federal government would win
[33:32] Speaker 4: as against the, states simply because it seems that this
[33:37] Speaker 4: regulatory scheme is focused on the need for, uniformity and
[33:41] Speaker 4: in this, case THE fda did not require any kind
[33:44] Speaker 4: of more stringent regulation around up despite what we unfortunately
[33:48] Speaker 4: have found out is about its true. Costs so the
[33:51] Speaker 4: interesting thing about these cases is we're not going to
[33:53] Speaker 4: see UNIFORM i think ideological bands of the court AND
[33:56] Speaker 4: i don't think we're going to see Uniform trump administrational.
[33:59] Speaker 4: Wins are they going to be a mixed, set and
[34:03] Speaker 4: then we'll have to see in each particular case on
[34:05] Speaker 4: how the court, resolves.
[34:07] Speaker 2: And we will see that starting tomorrow at. Ten thanks
[34:11] Speaker 2: so much for getting us ready for what's coming. Up
[34:14] Speaker 2: how That's Professor Harold crant of The Chicago Kent college Of.
[34:18] Speaker 2: Law and that's it for this edition Of The Bloomberg Law.
[34:20] Speaker 2: Show remember you can always get the latest legal news
[34:23] Speaker 2: on Our Bloomberg Law. Podcast you can find them On Apple, Podcasts,
[34:27] Speaker 2: spotify and at www Dot bloomberg dot com slash podcast Slash,
[34:32] Speaker 2: law and remember to tune Into The Bloomberg Law show
[34:35] Speaker 2: every weeknight at ten Pm Wall Street. Time I'm June
[34:39] Speaker 2: grosso and you're listening To bloomberg

Shows are listed from Apple Podcasts' charts and directory, and Podcast Index where it is used. Every show and episode belongs to its publisher and plays from the publisher's own feed; this site hosts none of them.