# Preview of Supreme Court 2026-2027 Term

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 4 Oct 2026, 42 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/681ba9ef-f03d-4aa5-a350-b4d90183ce80/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Former US Solicitor General Gregory Garre, a partner at Latham & Watkins, discusses the cases coming up at the Supreme Court’s new term starting on October 5th from climate change to asylum, and from parental rights to gun rights. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio. Honorable,
[0:20] Speaker 1: the Chief Justice and the Associate Justices of the Supreme
[0:24] Speaker 1: Court of the United States.
[0:26] Speaker 2: Oh, yay.
[0:26] Speaker 1: Oh, yay.
[0:27] Speaker 2: Oh, yay.
[0:29] Speaker 1: When the gavel bangs down on Monday, the first Monday
[0:33] Speaker 1: in October, the Supreme Court will begin its new term.
[0:37] Speaker 1: The justices will consider cases that deal with hot-button social issues,
[0:42] Speaker 1: from gun rights to parental rights, and from climate change
[0:46] Speaker 1: to asylum. They'll also consider cases that deal with fundamental
[0:50] Speaker 1: legal issues. Can you have a six-person jury under the
[0:54] Speaker 1: Sixth Amendment? And just what is an excessive fine under
[0:58] Speaker 1: the Eighth Amendment? The facts in some of the cases
[1:01] Speaker 1: are quirky, like the case of the Alaskan pilot, a
[1:05] Speaker 1: six-pack of beer, and the Constitution. The facts in other
[1:09] Speaker 1: cases are sobering. Undocumented immigrants being deported to countries they
[1:14] Speaker 1: have no connection with. My guest is former U.S. Solicitor
[1:18] Speaker 1: General Gregory Garr, a partner at Latham & Watkins. Greg,
[1:23] Speaker 1: the first case on Monday is one with far-reaching implications,
[1:28] Speaker 1: and billions of dollars are at stake as Colorado tries
[1:32] Speaker 1: to hold the oil industry accountable for climate change.
[1:36] Speaker 3: Yeah, so this is a really big case.
[1:37] Speaker 2: The question is whether a city can hold oil companies
[1:40] Speaker 2: responsible under state nuisance law for billions of dollars in
[1:44] Speaker 2: property damage allegedly caused by global climate change. So in 2018,
[1:50] Speaker 2: the city of Boulder, Colorado, sued Suncor Energy and ExxonMobil
[1:54] Speaker 2: and Colorado State Court, alleging that the company's manufacture, sale,
[1:58] Speaker 2: and distribution of fossil fuels have contributed to global climate change,
[2:03] Speaker 2: which in turn has resulted in forest fires and the
[2:06] Speaker 2: like in the Boulder area, which the city alleges violates
[2:10] Speaker 2: public nuisance.
[2:11] Speaker 3: Doctrine and other state tort laws.
[2:14] Speaker 2: So the defendant oil companies moved to dismiss this on
[2:16] Speaker 2: a host of grounds, including that the city's claims were
[2:20] Speaker 2: preempted by the United States Constitution and the federal Clean
[2:24] Speaker 2: Air Act. The Colorado courts rejected that preemption argument and
[2:28] Speaker 2: the U.S. Supreme Court granted review. And there are really
[2:31] Speaker 2: two issues before the court. The first is whether the U.S.
[2:35] Speaker 2: Supreme Court has jurisdiction to hear the case at all.
[2:38] Speaker 2: And the second is whether the Colorado Supreme Court was
[2:41] Speaker 2: right that there's no federal preemption defense. The jurisdictional argument
[2:45] Speaker 2: is based on the fact that the Supreme Court ordinarily
[2:47] Speaker 2: can only hear final judgments issued by state Supreme Courts.
[2:52] Speaker 2: And here, the Colorado Supreme Court just decided the availability
[2:56] Speaker 2: of one defense, the preemption defense. So lots of litigation remains.
[3:00] Speaker 2: And then on the merits that the courts get there,
[3:02] Speaker 2: the defendants say that allowing Boulder's claims to proceed would
[3:06] Speaker 2: mean that any city in America could saddle oil companies
[3:09] Speaker 2: with crippling liability for an inherently global phenomenon.
[3:13] Speaker 3: Climate change.
[3:14] Speaker 2: And defendants say that this would violate the structure of
[3:17] Speaker 2: the Constitution, under which they say federal law, and only
[3:21] Speaker 2: federal law, governs the regulation of this sort of national
[3:24] Speaker 2: or global phenomenon, like the way that air combines with
[3:27] Speaker 2: the climate to create climate change. Defendants also claim that
[3:31] Speaker 2: the city's claims are actually preempted by the Clean Air Act,
[3:35] Speaker 2: arguing that the act displays state efforts to regulate emissions
[3:39] Speaker 2: through litigation and And the city in turn argues that
[3:42] Speaker 2: the defendants really haven't pointed to anything specific in the
[3:45] Speaker 2: Constitution or the specific statute. And so therefore, they haven't
[3:50] Speaker 2: shown that the state claims are preempted in any specific
[3:53] Speaker 2: way by federal law.
[3:54] Speaker 1: Do you think we'll see a familiar lineup of justices
[3:58] Speaker 1: down ideological lines?
[4:00] Speaker 2: I think what's really interesting about this case is that
[4:02] Speaker 2: the usual roles of conservative and liberal justices may be flipped.
[4:07] Speaker 2: Here it may be the conservatives who are drawing principles
[4:09] Speaker 2: from the penumbras and emanations of constitutional provisions, while liberal
[4:14] Speaker 2: justices may insist on following the text of the Constitution
[4:17] Speaker 2: and statutes, or lack thereof here. And the case got
[4:20] Speaker 2: a lot more interesting earlier this week when Justice Alito
[4:24] Speaker 2: announced that he was recusing himself. And so that creates
[4:27] Speaker 2: an eight-justice court, meaning that Boulder likely just has to
[4:30] Speaker 2: pick up one conservative vote on either jurisdiction or the
[4:34] Speaker 2: merits to get a win by way of a 4-4 tie.
[4:37] Speaker 3: So this is definitely an interesting case to watch.
[4:40] Speaker 1: Tell us more about the jurisdictional argument, which obviously could
[4:45] Speaker 1: stop the case in its tracks.
[4:47] Speaker 2: Well, so Colorado says that there's no jurisdiction because there
[4:50] Speaker 2: was no final judgment by the state Supreme Court. It
[4:54] Speaker 2: was like a purely interlocutory proceeding over one issue. And
[4:57] Speaker 2: what the oil companies claim is that, well, if you
[5:01] Speaker 2: look at the U.S. Supreme Court precedent, They have found
[5:04] Speaker 2: exceptions where there's sort of a special proceeding before a
[5:07] Speaker 2: state Supreme Court involving the resolution of a federal issue,
[5:12] Speaker 2: and that that exception applies to this situation.
[5:14] Speaker 3: So the U.S.
[5:15] Speaker 2: Supreme Court actually can go ahead and decide the case.
[5:18] Speaker 3: And the merits.
[5:20] Speaker 2: But there's no question that the jurisdictional issue here is tricky,
[5:23] Speaker 2: and it provides an off-ramp for the court if it
[5:25] Speaker 2: decides it doesn't want to wade into the.
[5:27] Speaker 3: Case on the merits.
[5:29] Speaker 1: It's been said that this will determine the fate of
[5:32] Speaker 1: dozens of climate-related lawsuits by state and local governments against
[5:38] Speaker 1: fossil fuel companies, which could cost the companies billions of dollars.
[5:43] Speaker 2: Yeah, I think that's right. And that's probably the reason
[5:45] Speaker 2: why the court agreed to hear the case. There are
[5:47] Speaker 2: scores of cases like this brought by other cities and
[5:50] Speaker 2: municipalities seeking to hold the oil companies liable in connection
[5:55] Speaker 2: with global climate change. And so if the Supreme Court
[5:58] Speaker 2: holds that state law, state nuisance actions is actually displaced
[6:04] Speaker 2: by the Constitution or the Clean Air Act, then we'll
[6:07] Speaker 2: be back essentially to Congress and federal law in terms
[6:10] Speaker 2: of the regulation of these emissions.
[6:13] Speaker 1: Would you say that energy and trade groups have had
[6:16] Speaker 1: a good record before the court?
[6:18] Speaker 2: I think they've had a good record before the court. Now,
[6:20] Speaker 2: they've been trying to get these cases out of state
[6:23] Speaker 2: court into federal court, and they haven't always succeeded in that.
[6:26] Speaker 2: And that's why this case comes from the state court.
[6:29] Speaker 2: But the Supreme Court has been challenging on preemption issues
[6:34] Speaker 2: for businesses. There was a big win last term in
[6:37] Speaker 2: the Monsanto case. But generally speaking, the more conservative justices
[6:41] Speaker 2: more recently have been skeptical of preempting state law. And
[6:46] Speaker 2: so the oil companies here might face some headwinds on that.
[6:50] Speaker 2: But I think the concern would be that if you
[6:52] Speaker 2: could have a single city in America that basically could
[6:56] Speaker 2: saddle oil companies with crippling liability.
[6:59] Speaker 3: For a global phenomenon where it.
[7:01] Speaker 2: Would be, you know, extremely difficult to show that any
[7:04] Speaker 2: particular emissions resulted in any particular damage in a particular municipality.
[7:09] Speaker 3: So, you know, I think the.
[7:10] Speaker 2: Theory of liability is really sweeping and is one that's
[7:13] Speaker 2: probably going to trouble, you know, really all the justices,
[7:16] Speaker 2: although they might come to different conclusions in terms of
[7:18] Speaker 2: how the case.
[7:18] Speaker 3: Should be resolved.
[7:19] Speaker 1: But do you think that it would likely result in
[7:23] Speaker 1: a liberal conservative split?
[7:25] Speaker 2: You know, I think that that's likely in this case.
[7:28] Speaker 2: And I think that the more liberal justices are going
[7:30] Speaker 2: to be extremely reluctant to find that these actions are preempted.
[7:35] Speaker 2: But I also think that the arguments are going to
[7:37] Speaker 2: be ones that, you know, could give some of the conservative.
[7:40] Speaker 3: Justices some pause.
[7:42] Speaker 2: And that's why the fact that you've got this eight
[7:44] Speaker 2: justice court with Justice Alito recused makes the case so
[7:48] Speaker 2: interesting because The city here may only have to pick
[7:52] Speaker 2: off one of the conservative justices, and that makes it
[7:56] Speaker 2: a whole heck of a lot easier for them than
[7:58] Speaker 2: having to pick off two of the conservative justices to
[8:01] Speaker 2: get to a 4-4 split.
[8:03] Speaker 1: And if there's a 4-4 split, the Colorado Supreme Court
[8:07] Speaker 1: decision stays in place, and so the case goes forward
[8:11] Speaker 1: without setting a nationwide precedent. Now, the court will be
[8:14] Speaker 1: considering a few cases that concern religious rights. And the
[8:18] Speaker 1: first one they'll be hearing on November 3rd concerns a
[8:22] Speaker 1: fight between St. Mary Catholic Parish and the state of Colorado.
[8:27] Speaker 3: So the St.
[8:28] Speaker 2: Mary's case checks two boxes for the current court. One,
[8:32] Speaker 2: it involves a claim of religious discrimination. And two, it's
[8:35] Speaker 2: directed against Colorado officials who have not fared well before
[8:38] Speaker 2: the court in First Amendment cases. And so this case
[8:41] Speaker 2: arises because Colorado passed a universal preschool program making funding
[8:47] Speaker 2: available to families to send their children to a public
[8:49] Speaker 2: or private preschool of the family's choice, including a private
[8:53] Speaker 2: school that would provide a religious education. But while the
[8:56] Speaker 2: program is open to all, Colorado requires participating schools to
[9:01] Speaker 2: agree to a non-discrimination mandate that prohibits the exclusion of
[9:05] Speaker 2: students on the basis of religion, sexual orientation, or other factors.
[9:10] Speaker 2: In this case, the Catholic parishes, preschools, and parents agreed
[9:14] Speaker 2: sued the state claiming that the program's non-discrimination requirement violated
[9:19] Speaker 2: their First Amendment and religious rights because it would require
[9:22] Speaker 2: them to violate the Catholic Church's teachings on same-sex marriage
[9:27] Speaker 2: and gender and the like. And in particular, they alleged
[9:29] Speaker 2: that even though the non-discrimination requirement is categorical on its face, Colorado,
[9:34] Speaker 2: in fact, has granted exemptions to schools that serve only
[9:37] Speaker 2: particular groups, including families from the LGBTQ community. while refusing
[9:43] Speaker 2: similar exemptions to religious schools. And in a case called
[9:46] Speaker 2: Employment Division v. Smith, the Supreme Court held decades ago
[9:50] Speaker 2: that a neutral and generally applicable rule need not give
[9:54] Speaker 2: way to religious exemptions, but several justices on the court
[9:57] Speaker 2: have criticized the Smith case. and this case will test
[10:01] Speaker 2: the application of that principle. And here the challengers argue
[10:04] Speaker 2: that the Smith principle should at least give way where
[10:07] Speaker 2: a state has granted exemptions to a law that is
[10:09] Speaker 2: generally applicable on its face. Religion is really an area
[10:13] Speaker 2: where the conservative justices have flexed their muscles on the court,
[10:17] Speaker 2: So the real question in this case may be how
[10:19] Speaker 2: far the court decides to go.
[10:22] Speaker 1: So how much would the case from 2022, Carson v. Macon,
[10:27] Speaker 1: where the court ruled 6-3 that Maine's exclusion of religious
[10:32] Speaker 1: private schools from its public tuition assistance program violates the
[10:37] Speaker 1: First Amendment, I mean, how much does that play in here?
[10:40] Speaker 3: Well, both sides talk about the Macon case differently.
[10:43] Speaker 2: But here, the Colorado program allows funding to private schools
[10:48] Speaker 2: that wish to teach a religious education. So the problem
[10:52] Speaker 2: isn't the exclusion of religious schools from the funding program.
[10:57] Speaker 2: The problem is, the challengers would say, the haphazard enforcement
[11:02] Speaker 2: of the non-discrimination principle, which, the way they see it,
[11:06] Speaker 2: allows for exemptions with respect to some schools that want
[11:10] Speaker 2: to have a tight community. but wouldn't allow for an
[11:12] Speaker 2: exemption to a religious school that wanted to pursue its
[11:16] Speaker 2: teaching and exclude people with certain beliefs. And they say
[11:20] Speaker 2: that that has a sort of unique kind of discriminatory
[11:23] Speaker 2: effect on religion. And in prior cases where the Supreme
[11:27] Speaker 2: Court has seen situations in which it has concluded that
[11:30] Speaker 2: religion is really being singled out and discriminated against, this
[11:34] Speaker 2: court has acted very strongly against that.
[11:37] Speaker 1: I feel like if religion is a factor at the
[11:39] Speaker 1: court these days, religion wins. And I count five conservative
[11:43] Speaker 1: justices that have explicitly or implicitly called for overturning Smith.
[11:50] Speaker 3: You're right.
[11:50] Speaker 2: The plaintiffs in religious cases have had quite a run
[11:53] Speaker 2: at the Supreme Court. And so I think, you know,
[11:55] Speaker 2: in these sorts of cases, the defenders are facing real headwinds.
[12:00] Speaker 1: In fact, I think the only time in recent years
[12:03] Speaker 1: when religious rights lost, Greg, was the case you argued
[12:07] Speaker 1: and won last year. that left in place a state
[12:11] Speaker 1: ruling blocking the nation's first religious charter school. So your
[12:16] Speaker 1: win there was the exception. Stay with me. Coming up next,
[12:20] Speaker 1: 12 Angry Men is a classic film. How do six
[12:24] Speaker 1: angry men sound? I'm June Grosso, and you're listening to Bloomberg.
[12:28] Speaker 2: I mean, you're asking us to believe that somebody else
[12:30] Speaker 2: did the stabbing with exactly the.
[12:32] Speaker 3: Same kind of knife. The odds are a million to one.
[12:34] Speaker 3: It's possible. There are still 11 of us here who
[12:37] Speaker 3: think he's guilty. Right. What do you think you're going
[12:40] Speaker 3: to accomplish? You're not going to change anybody's mind. So
[12:42] Speaker 3: if you want to be stubborn and hang this jury,
[12:44] Speaker 3: go ahead. The kid will be tried again and found
[12:46] Speaker 3: guilty as sure as he's born. Probably right.
[12:49] Speaker 1: 12 Angry Men is a classic film. But would a
[12:54] Speaker 1: film entitled Six Angry Men still be a classic? The
[12:58] Speaker 1: 12-person jury has been commonplace since the founding. But does
[13:02] Speaker 1: the Constitution actually require that number to sit in criminal cases?
[13:08] Speaker 1: In fact, six states currently use juries with just six
[13:12] Speaker 1: members in certain criminal cases. And now the Supreme Court
[13:16] Speaker 1: will decide whether the Sixth Amendment right to a fair
[13:19] Speaker 1: trial requires a 12-person jury. I've been talking to Gregory Garr,
[13:24] Speaker 1: former U.S. Solicitor General and a partner at Latham & Watkins. Greg,
[13:29] Speaker 1: tell us about this case that comes out of Florida.
[13:32] Speaker 2: So this case involves a Florida chiropractor, Hamed Kayan, who
[13:35] Speaker 2: was convicted by a unanimous six-person jury for practicing with
[13:39] Speaker 2: a suspended license and sentenced to over a year in prison.
[13:43] Speaker 2: So Florida, like several other states, has used a six-person
[13:46] Speaker 2: jury in non-death penalty cases since 1877. And in a
[13:51] Speaker 2: 1970 case called Williams v.
[13:53] Speaker 3: Florida, the U.S.
[13:54] Speaker 2: Supreme Court upheld the constitutionality of Florida's six-person jury by
[14:00] Speaker 2: a lopsided vote. Kahn, after his conviction, took his case
[14:04] Speaker 2: to the Supreme Court and asked the court to overrule
[14:07] Speaker 2: the Williams decision. In doing that, he relies on a
[14:10] Speaker 2: 2020 case called Ramos v. Louisiana, in which the court
[14:13] Speaker 2: held that the Sixth Amendment protects the jury as it
[14:16] Speaker 2: was understood when the amendment was adopted in 1791. In Ramos,
[14:21] Speaker 2: the court held that jury verdicts must be unanimous because
[14:24] Speaker 2: that was the rule in 1791. And in this case,
[14:28] Speaker 2: Kahn argues that the juries must include 12 members because
[14:31] Speaker 2: that was the practice in 1791. Florida responds that the
[14:35] Speaker 2: Sixth Amendment preserves only the jury's essential function and not
[14:39] Speaker 2: every detail of common law practice. And the stakes of
[14:43] Speaker 2: this case are really huge. If the court does overturn
[14:46] Speaker 2: the Williams decision, as it may, Florida says that there
[14:50] Speaker 2: are 5,006 juror convictions pending on appeal right now, and
[14:55] Speaker 2: five other states use six-person juries, so there are countless
[14:58] Speaker 2: other convictions that could be impacted by this. But this
[15:02] Speaker 2: is an issue that some justices have written about separately.
[15:05] Speaker 2: And so I think that the court was looking for
[15:07] Speaker 2: the right case to reconsider this issue.
[15:10] Speaker 1: Yeah, Justice Gorsuch wrote that Williams was wrong the day
[15:13] Speaker 1: it was decided. Florida does what the Constitution forbids because
[15:17] Speaker 1: of us. So they would have to overrule Williams.
[15:21] Speaker 2: Yeah, they would have to overrule Williams, you know, looking
[15:24] Speaker 2: at the traditional stare decisis factors. And one thing that
[15:27] Speaker 2: may be interesting in this case is to see whether
[15:30] Speaker 2: or not the more liberal justices, who might be very
[15:33] Speaker 2: sympathetic to Gant's claim as a criminal procedure matter, would
[15:38] Speaker 2: go along with overruling precedents, since they are generally very
[15:41] Speaker 2: reluctant to have this court overrule precedent. But this case
[15:45] Speaker 2: also illustrates that the shift on the court compared to
[15:49] Speaker 2: the court decades ago, where the current court is much
[15:53] Speaker 2: more interested in and sympathetic to originalism-type arguments. And here,
[15:59] Speaker 2: the argument is sort of a classic originalism argument that
[16:02] Speaker 2: we're going to interpret the Sixth Amendment today as it
[16:04] Speaker 2: would have been interpreted in 1791 when it was adopted.
[16:08] Speaker 1: You know, this case made me curious about the significance
[16:11] Speaker 1: of the number 12 for juries, where that number came from.
[16:15] Speaker 1: And the Williams Court said that number was a historical accident,
[16:20] Speaker 1: wholly without significance, except to mystics. Do you know where
[16:24] Speaker 1: the 12 came from?
[16:26] Speaker 2: I do not know where the 12 came from, and
[16:28] Speaker 2: that's no doubt going to be one of the issues
[16:30] Speaker 2: discussed in the brief. I do know that one of
[16:33] Speaker 2: the most famous movies about juries was The Twelve Angry Men,
[16:37] Speaker 2: so I think it's had some historical significance for some time.
[16:40] Speaker 2: Whether or not that movie will fit into the analysis,
[16:42] Speaker 2: I doubt it, but it'll be fun to see where
[16:45] Speaker 2: the court ends up on this one.
[16:47] Speaker 1: I'd love to see 12 angry men mentioned in the
[16:49] Speaker 1: majority opinion in the case. I'm also curious if a
[16:53] Speaker 1: defendant fares better with a 12-person jury as opposed to
[16:57] Speaker 1: a 6-person jury because there are more diverse viewpoints and
[17:02] Speaker 1: more chances to get at least one juror to agree
[17:05] Speaker 1: with them.
[17:05] Speaker 2: I bet there are studies into that, and I would
[17:09] Speaker 2: not be surprised if it were the case that a
[17:12] Speaker 2: 12-person jury was more favorable for the defense. If for
[17:16] Speaker 2: no other reason, then it's harder to get 12 people
[17:18] Speaker 2: to agree on something than six people.
[17:20] Speaker 3: And if you're the defendant, you just need one person
[17:22] Speaker 3: to go the other way.
[17:23] Speaker 1: The arguments in this case are going to be so interesting. Now,
[17:26] Speaker 1: turning to the Second Amendment, the Supreme Court has been
[17:29] Speaker 1: expanding Second Amendment rights and decided two cases last term.
[17:34] Speaker 1: This term on December 2nd, they're going to consider bans
[17:38] Speaker 1: on semi-automatic weapons, including the AR-15 weapon.
[17:43] Speaker 2: The Second Amendment in guns has definitely been one of
[17:46] Speaker 2: the areas where the Supreme Court has been more active
[17:49] Speaker 2: in recent years. Last year, the court ruled in favor
[17:52] Speaker 2: of gun owners in two Second Amendment cases, and this
[17:54] Speaker 2: term is going to revisit the area again. And considering
[17:58] Speaker 2: the constitutionality of bans on AR-15 or similar assault rifles.
[18:04] Speaker 2: So this is actually two different cases arises from laws
[18:07] Speaker 2: in two different jurisdictions, including the Connecticut law passed in
[18:11] Speaker 2: the wake of the tragic Sandy Hook school shooting that
[18:14] Speaker 2: barred individuals from owning, buying, or transferring assault rifles, including AR-15s.
[18:20] Speaker 2: And this really comes down to an application of this
[18:23] Speaker 2: new jurisprudence that the Supreme Court has created under the
[18:26] Speaker 2: Second Amendment, where it looks to the history and tradition
[18:30] Speaker 2: of the particular gun regulation going back in the country's history.
[18:36] Speaker 2: And the state argues that AR-15s and similar assault rifles
[18:40] Speaker 2: fall within the historical tradition of regulating dangerous and unusual weapons.
[18:45] Speaker 2: But the challengers, pointing to a different strain in the
[18:47] Speaker 2: court's cases, argue that the AR-15 must be protected under
[18:51] Speaker 2: the Second Amendment because the AR-15 is in common use
[18:55] Speaker 2: today and indeed has become one of the most popular
[18:57] Speaker 2: guns in America. The state and local governments have been
[19:00] Speaker 2: unsuccessful in defending gun laws at the Supreme Court in
[19:03] Speaker 2: recent years, and some justices have already signaled that they're
[19:07] Speaker 2: sympathetic to the argument that assault weapons bans violate the
[19:10] Speaker 2: Second Amendment, even notwithstanding some of the tragic circumstances, such
[19:15] Speaker 2: as the Sandy Hook shooting that surround these weapons. But
[19:20] Speaker 2: one thing that may be important is that this case
[19:22] Speaker 2: does not involve a challenge to laws banning or restricting
[19:26] Speaker 2: high-capacity magazines that can be used with AR-15s. So no
[19:31] Speaker 2: matter how this case comes out, that might be the
[19:33] Speaker 2: next one.
[19:34] Speaker 1: And the lower courts have generally been upholding these assault
[19:38] Speaker 1: weapon bans?
[19:39] Speaker 3: That's right.
[19:39] Speaker 2: The lower courts have largely upheld them. You know, applying
[19:43] Speaker 2: the Supreme Court's precedent, which many of them have found
[19:45] Speaker 2: somewhat difficult to apply, but there's no question that the
[19:49] Speaker 2: Morkans justices in the Supreme Court have been more receptive
[19:54] Speaker 2: to Second Amendment arguments in recent years. And as I mentioned,
[19:59] Speaker 2: some of them in particular have singled these bans out
[20:02] Speaker 2: as being problematic.
[20:03] Speaker 1: Yeah. So when the court turned away two challenges to
[20:06] Speaker 1: assault weapons bans last year, Justices Clarence Thomas, Samuel Alito,
[20:10] Speaker 1: and Neil Gorsuch all said they would have taken up
[20:12] Speaker 1: the issue. Brett Kavanaugh said that the challengers had a
[20:16] Speaker 1: strong argument that the ban was unconstitutional. So do you
[20:20] Speaker 1: think it's going to fall on Chief Justice John Roberts
[20:24] Speaker 1: and Justice Amy Coney Barrett?
[20:26] Speaker 3: I think that's right.
[20:27] Speaker 2: And, you know, we've seen this time and again in
[20:30] Speaker 2: the higher profile cases where it often comes down to
[20:34] Speaker 2: those justices in the middle. Sometimes it includes Justice Kavanaugh. Here,
[20:39] Speaker 2: Justice Kavanaugh has already signaled that he's sympathetic to the
[20:43] Speaker 2: claim that these bans are unconstitutional. So looking at the
[20:46] Speaker 2: Chief Justice and Justice Barrett is probably going to tell
[20:49] Speaker 2: a lot about how the court resolves this case.
[20:52] Speaker 1: And I don't know if it factors into some of
[20:55] Speaker 1: the justices' thinking, but AR-15-style rifles are frequently involved in
[21:01] Speaker 1: the deadliest cases. high-casualty mass shootings.
[21:06] Speaker 2: Yeah, I think that's right. And obviously, you know, horrifically
[21:09] Speaker 2: tragic circumstances. I would say that often in these sorts
[21:14] Speaker 2: of mass shootings, they're also using the high-capacity magazines. And
[21:18] Speaker 2: so it may be that the court draws a distinction
[21:20] Speaker 2: between the two and, you know, conceivably could look at
[21:24] Speaker 2: laws regulating high-capacity magazines as different. But then again, the
[21:28] Speaker 2: resolution of this case could, you know, have something to
[21:31] Speaker 2: say about that as well.
[21:33] Speaker 1: More controversial social issues are going to come up in
[21:35] Speaker 1: a case that'll be argued on December 7th. Washington state
[21:40] Speaker 1: laws allow youth shelters to withhold notification from parents if
[21:45] Speaker 1: a runaway minor seeks gender-affirming care. So this involves LGBTQ rights,
[21:51] Speaker 1: parental rights. Religious rights are also involved, I think.
[21:55] Speaker 3: A little bit of everything.
[21:57] Speaker 2: And this is another area where we've seen the court
[21:59] Speaker 2: take cases in recent years that I mean, what's important
[22:02] Speaker 2: about this case, though, is it only involves the question
[22:05] Speaker 2: of legal standing, and that is of the parents, whether
[22:08] Speaker 2: or not they have a standing to challenge a Washington
[22:11] Speaker 2: state law that makes it easier for runaway minors to
[22:14] Speaker 2: get gender treatment without parental notice or consent. The case
[22:19] Speaker 2: involves a challenge to a Washington law under which a
[22:21] Speaker 2: shelter may contact the state's Department of Children, Youth, and
[22:24] Speaker 2: Families when a child runs away to get gender treatment,
[22:27] Speaker 2: but is not required to contact the child's parents. The
[22:31] Speaker 2: plaintiffs here are five sets of Washington parents. They say
[22:34] Speaker 2: their children experience gender confusion of various types, and they
[22:38] Speaker 2: allege present harms from that. For example, one mother says
[22:42] Speaker 2: she stopped disciplining her daughter for fear that she'll run away,
[22:47] Speaker 2: and others have stopped discussing gender at home. The parents
[22:51] Speaker 2: argue that the laws violate their constitutional rights. the rights
[22:55] Speaker 2: to direct their child's upbringing, to refuse medical treatment for them,
[22:58] Speaker 2: to raise them in their faith, and to speak freely
[23:01] Speaker 2: about gender. The district court nevertheless dismissed the action, saying
[23:05] Speaker 2: that parents didn't have Article III standing, not enough of
[23:08] Speaker 2: a concrete injury to challenge the Washington law, and the
[23:12] Speaker 2: Ninth Circuit affirmed. The fact that the Supreme Court granted
[23:16] Speaker 2: review here, and given the underlying policies, may make it
[23:20] Speaker 2: more challenging before this court, Standing also has become a
[23:24] Speaker 2: really important issue in the wave of parental rights challenges
[23:28] Speaker 2: to school and state gender identity policies and the like.
[23:32] Speaker 2: And here, as in some of the other cases we've discussed,
[23:35] Speaker 2: some of the justices have already expressed concern about this issue.
[23:39] Speaker 2: So this may be another one that the state is
[23:41] Speaker 2: fighting an uphill battle.
[23:43] Speaker 1: And like religious rights always win, it seems to me
[23:47] Speaker 1: that LGBTQ rights always lose, whether it's reading LGBTQ-friendly storybooks
[23:54] Speaker 1: in schools or bans on gender-affirming care for minors. But
[23:59] Speaker 1: has the court addressed the standing of parents in any
[24:02] Speaker 1: of these cases?
[24:03] Speaker 2: That standing issue, I don't recall coming up in those cases.
[24:06] Speaker 2: This is something that has, I think, come up more
[24:09] Speaker 2: in some of the lower court cases. But, you know,
[24:11] Speaker 2: as we've seen, I mean, even with the ballroom case
[24:14] Speaker 2: earlier last month, you know, standing, the ability to get
[24:18] Speaker 2: into court to bring your challenge is oftentimes the whole ballgame.
[24:22] Speaker 2: And so the standing issue in this case, in similar cases,
[24:26] Speaker 2: is critical to parents and plaintiff's groups bringing these challenges.
[24:30] Speaker 1: And standing is often an off-ramp for the justices so
[24:34] Speaker 1: they don't have to reach the merits of the case.
[24:36] Speaker 1: Coming up next, we'll continue the conversation on the Supreme
[24:39] Speaker 1: Court's upcoming term with the case of the Alaskan pilot,
[24:43] Speaker 1: the six-pack of beer, and the Constitution. Is seizing a
[24:47] Speaker 1: plane over a six-pack an excessive fine? Alaska's Supreme Court
[24:53] Speaker 1: said no. A note, Michael Bloomberg, the founder and majority
[24:57] Speaker 1: owner of Bloomberg LP, the parent company of Bloomberg Radio,
[25:01] Speaker 1: is a donor to groups that support gun control, including
[25:05] Speaker 1: Everytown for Gun Safety. I'm June Grosso, and you're listening
[25:09] Speaker 1: to Bloomberg. It doesn't seem like a case that should
[25:14] Speaker 1: be at the Supreme Court. It involves an 82-year-old Alaskan
[25:18] Speaker 1: bush pilot, a six-pack of beer, and a misdemeanor conviction
[25:23] Speaker 1: for flying alcohol into a dry village back in 2012.
[25:26] Speaker 1: The twist is that the state of Alaska wants to
[25:31] Speaker 1: seize the pilot Ken Juppie's plane over the misdemeanor of
[25:35] Speaker 1: transporting alcohol to a dry community. And Juppie says he
[25:39] Speaker 1: didn't even know his passenger was carrying beer in her luggage.
[25:43] Speaker 2: And there was one six-pack in a shopping bag that I.
[25:48] Speaker 3: Just did not see.
[25:49] Speaker 1: He argues that seizing his $ 95, 000 plane would violate the
[25:54] Speaker 1: Eighth Amendment's ban on excessive fines. I've been discussing the
[25:58] Speaker 1: Supreme Court's upcoming term with former U.S. Solicitor General Gregory
[26:03] Speaker 1: Garr of Latham & Watkins. Greg, the facts in this
[26:06] Speaker 1: case are just wild. So tell us more about the plane,
[26:09] Speaker 1: the six-pack. Budweiser, by the way, and the Eighth Amendment.
[26:14] Speaker 3: It's got it all.
[26:15] Speaker 2: So the question in this case is the standard for
[26:17] Speaker 2: whether a fine or forfeiture violates the Eighth Amendment's excessive
[26:21] Speaker 2: fine clause. And in this case, the Alaska State Police
[26:24] Speaker 2: arrested a Bush pilot, Ken Jopie, and his only passenger
[26:28] Speaker 2: on his air taxi plane after the plane flew a
[26:30] Speaker 2: six-pack of beer from Fairbanks, Alaska into Beaver, Alaska, an
[26:35] Speaker 2: Alaska native village where alcohol is strictly prohibited. The state
[26:40] Speaker 2: convicted Jupe, the pilot of a misdemeanor, sentenced him to
[26:43] Speaker 2: three days in jail, ordered him to pay a $ 1, 500 fine,
[26:47] Speaker 2: and then on top of all that, forfeited his airplane
[26:51] Speaker 2: because it contained the contraband. The trial court found this
[26:54] Speaker 2: forfeiture excessive under the Constitution, but the Alaska Supreme Court
[26:59] Speaker 2: upheld the forfeiture and the Supreme Court granted review. So Jopi,
[27:03] Speaker 2: the pilot, claims that the courts below erred by focusing
[27:06] Speaker 2: on the harms created by alcohol in these communities in
[27:08] Speaker 2: the abstract. And there's no question that alcohol has been
[27:12] Speaker 2: very harmful, especially to Alaska Native villages. What Jopi claims
[27:16] Speaker 2: is that instead, for the constitutional forfeiture analysis, they should
[27:20] Speaker 2: have looked at whether or not the forfeiture of the
[27:22] Speaker 2: plane was proportional in relation to the specific wrongdoing here,
[27:27] Speaker 2: carrying a six-pack on the plane into the Alaskan villages.
[27:31] Speaker 2: And this is one of those cases where I think
[27:32] Speaker 2: the colorful facts put the state in a really difficult position.
[27:36] Speaker 2: In the meantime, a number of civil liberty groups have
[27:39] Speaker 2: lined up as amici, seeing this case as a chance
[27:42] Speaker 2: to strengthen the Eighth Amendment's limits on civil forfeitures and
[27:46] Speaker 2: the like at a time when governments collect billions of
[27:49] Speaker 2: dollars through their forfeiture efforts.
[27:52] Speaker 1: And the trial judge in the case twice refused to
[27:56] Speaker 1: take Juppie's plane. And, you know, standing before him is
[28:00] Speaker 1: this Air Force veteran in his 80s whose only income
[28:04] Speaker 1: besides Social Security is flying passengers to villages in Alaska,
[28:10] Speaker 1: basically like a taxi cab driver in the air. So,
[28:13] Speaker 1: as you said, the facts are compelling. But is there
[28:16] Speaker 1: relevant Supreme Court precedent?
[28:18] Speaker 2: There have been some recent cases, but I think a
[28:20] Speaker 2: number of the justices have written separately to suggest that
[28:24] Speaker 2: this is an area where they would like to weigh
[28:27] Speaker 2: in on. And so this, from their perspective, may be
[28:30] Speaker 2: the perfect case at the perfect time. It's really quite amazing,
[28:35] Speaker 2: given the facts here, that this case has gone all
[28:37] Speaker 2: the way to the U.S.
[28:38] Speaker 3: Supreme Court.
[28:39] Speaker 2: And I think at the end of the day, the
[28:41] Speaker 2: state may regret that it didn't find a way to
[28:44] Speaker 2: resolve it beforehand.
[28:45] Speaker 1: And this dispute's been going on for 14 years. Will
[28:49] Speaker 1: the state's arguments about the difficulties of combating alcohol abuse
[28:54] Speaker 1: play a role in the justices' decision here?
[28:57] Speaker 2: You know, I think it's going to be an important
[28:59] Speaker 2: part of the arguments before the court. And this is really,
[29:03] Speaker 2: truly a serious issue that the state is dealing with
[29:06] Speaker 2: and Alaska Native communities are dealing with. And I don't
[29:09] Speaker 2: think any of the justices will doubt that. But at
[29:11] Speaker 2: the end of the day, I think they are going
[29:12] Speaker 2: to require a you know, more narrowly tailored analysis to
[29:16] Speaker 2: determine whether or not taking someone's plane away from him
[29:20] Speaker 2: for carrying a six-pack into the village is actually proportional
[29:23] Speaker 2: to the offense.
[29:24] Speaker 1: It's hard to see it as proportional, but let's turn
[29:27] Speaker 1: to a case coming up on November 30th that could
[29:30] Speaker 1: expand Title IX, which prohibits sex discrimination by federally funded
[29:35] Speaker 1: educational institutions. So an art professor and a women's basketball
[29:40] Speaker 1: coach at two public universities in Georgia sued their schools
[29:44] Speaker 1: for sex discrimination under Title IX, and the cases were consolidated.
[29:50] Speaker 2: As you mentioned, Title IX prohibits sex discrimination against students,
[29:56] Speaker 2: and the question in this case is whether it also
[29:58] Speaker 2: creates a private right of action. for employment discrimination by
[30:02] Speaker 2: the employees of educational institutions. The lower court in this
[30:06] Speaker 2: case held that Title IX does not give school employees
[30:09] Speaker 2: a private right to sue for employment discrimination, instead that
[30:12] Speaker 2: it's an action limited to sex-based discrimination. But the Supreme
[30:16] Speaker 2: Court granted review. Now here I think the plaintiffs are
[30:19] Speaker 2: going to face two obstacles. The first is that the
[30:22] Speaker 2: Supreme Court has been increasingly reluctant to infer private rights
[30:25] Speaker 2: of actions not expressly created by Congress. And the second
[30:30] Speaker 2: is that Congress created an express right of action for
[30:33] Speaker 2: employment discrimination in Title VII just months before it enacted
[30:37] Speaker 2: Title IX. So it's pretty hard to argue that Congress
[30:40] Speaker 2: intended Title IX to extend to employment discrimination claims when
[30:45] Speaker 2: it didn't say so. The practical stakes of this case
[30:48] Speaker 2: are big for both sides, and especially for universities and
[30:52] Speaker 2: all educational institutions receiving federal funds. Because if employees can
[30:57] Speaker 2: sue under Title IX, then they can bypass the limits
[31:00] Speaker 2: that Congress has placed on Title VII employment discrimination actions,
[31:05] Speaker 2: which would put more stress and burdens on educational institutions.
[31:10] Speaker 1: I think the circuit split here is eight to three.
[31:13] Speaker 1: Do the justices consider the numbers on each side of
[31:17] Speaker 1: the split? Does that have any bearing?
[31:19] Speaker 3: It really doesn't.
[31:20] Speaker 2: I mean, the existence of the circuit split is the
[31:22] Speaker 2: primary reason why the Supreme Court grants review. But once
[31:26] Speaker 2: it grants review, it really doesn't tally up which position
[31:30] Speaker 2: has more support in the circuits. There are cases where
[31:34] Speaker 2: the conflicts go eight to one, and the Supreme Court
[31:37] Speaker 2: will decide with the one. They're not going to defer
[31:41] Speaker 2: to how the lower courts think about an issue.
[31:43] Speaker 3: They're going to think about it themselves.
[31:45] Speaker 2: And so here, I think it's the circuit split is
[31:47] Speaker 2: the reason why the case is in the U.S. Supreme Court.
[31:50] Speaker 2: But I don't think the justices will pay much attention
[31:52] Speaker 2: to that.
[31:53] Speaker 1: In writing the 11th Circuit's decision, which found that Title
[31:57] Speaker 1: IX doesn't give employees a private right of action for
[32:00] Speaker 1: sex discrimination, the Chief Judge William Pryor pointed to the
[32:04] Speaker 1: text of the statute. I mean, do you think this
[32:07] Speaker 1: is going to be a textual reading of the statute
[32:09] Speaker 1: for the justices as well?
[32:11] Speaker 3: Absolutely.
[32:12] Speaker 2: So Title IX doesn't actually create an express cause of action.
[32:16] Speaker 2: The private right of action was implied by the Supreme
[32:18] Speaker 2: Court back in the 1970s and in a completely different
[32:22] Speaker 2: era where the court was more apt to sort of
[32:25] Speaker 2: infer things in terms of what Congress intended. This Supreme
[32:29] Speaker 2: Court is much more focused on the actual text of
[32:34] Speaker 2: the statute. And here, the problem for the plaintiffs is
[32:38] Speaker 2: that the statute does not refer to employment discrimination. And again,
[32:43] Speaker 2: I mean, just before Congress enacted Title IX, it enacted
[32:47] Speaker 2: Title VII, which is the federal statute dealing with employment discrimination.
[32:51] Speaker 2: So it's just really hard to believe that Congress impliedly
[32:55] Speaker 2: intended Title IX to address employment discrimination when it didn't
[32:58] Speaker 2: say anything about that in the actual statute.
[33:01] Speaker 1: When the employees appealed to the Supreme Court, The court
[33:04] Speaker 1: asked the Trump administration to weigh in, and the U.S.
[33:08] Speaker 1: Solicitor General said he thought the Court of Appeals decision
[33:12] Speaker 1: was correct, but that the justices should take the case
[33:15] Speaker 1: because the lower courts are divided. I've always wondered, so
[33:19] Speaker 1: I'm going to ask you as a former Solicitor General,
[33:22] Speaker 1: how much weight do the justices give to the opinions
[33:25] Speaker 1: of the Solicitor General?
[33:26] Speaker 3: Well, I have to say they weigh it very carefully,
[33:28] Speaker 3: and I think that they do.
[33:29] Speaker 2: I mean, first of all, they often ask the Solicitor
[33:31] Speaker 2: General to weigh in on whether or not to take
[33:33] Speaker 2: a case. And they do take the SG's views very
[33:37] Speaker 2: seriously on that.
[33:38] Speaker 3: In that respect, the SG is really, in a way,
[33:40] Speaker 3: trying to help the court out.
[33:41] Speaker 2: On the merits, too, the government briefs are taken very
[33:45] Speaker 2: carefully because they're extremely well written and well thought out.
[33:49] Speaker 2: But the court's going to read all the briefs, and
[33:51] Speaker 2: it's not going to give any added deference to the
[33:54] Speaker 2: SG or the lawyers from the SG's office.
[33:57] Speaker 3: But it's certainly going to read their brief.
[33:59] Speaker 1: I've lost track of how many immigration-related cases the court
[34:02] Speaker 1: has taken on the emergency or shadow docket. They're also
[34:06] Speaker 1: taking a few on the regular docket this term, and
[34:10] Speaker 1: one has implications for the growing number of asylum seekers. Basically,
[34:15] Speaker 1: can you still get a green card if you lose
[34:18] Speaker 1: your asylum status?
[34:20] Speaker 2: Recently, we've seen a number of immigration cases at the U.S.
[34:24] Speaker 2: Supreme Court, really in response to the Trump administration's aggressive
[34:28] Speaker 2: efforts immigration and removal policies. And the question in this
[34:32] Speaker 2: case is whether non-citizens in the United States who obtained
[34:36] Speaker 2: asylum status in the past because of a legitimate fear
[34:40] Speaker 2: of persecution on account of their race, religion, or other
[34:43] Speaker 2: factors in their home country.
[34:45] Speaker 3: But then lost that asylum status.
[34:47] Speaker 2: Over time, are eligible still to apply to be a
[34:50] Speaker 2: lawful permanent resident in order to remain in the United States.
[34:54] Speaker 2: This case involves non-citizens from Egypt and Guatemala who who
[34:58] Speaker 2: obtained asylum status but then lost it after they were
[35:01] Speaker 2: convicted of certain criminal offenses. They then sought lawful permanent
[35:06] Speaker 2: resident status so they could remain in the United States,
[35:09] Speaker 2: but the courts held that they were categorically ineligible for
[35:11] Speaker 2: such status because they no longer had asylum status at
[35:15] Speaker 2: the time that they applied for lawful permanent resident status.
[35:19] Speaker 2: And legally, this issue boils down to a technical statutory
[35:23] Speaker 2: question of whether the phrase, quote, any alien granted asylum
[35:28] Speaker 2: end quote, in the Immigration and Naturalization Act applies to
[35:31] Speaker 2: anyone who has ever been granted asylum or only those
[35:35] Speaker 2: who currently have asylum status. The issue is critical for
[35:39] Speaker 2: many individuals in the immigration system because individuals who cannot
[35:43] Speaker 2: obtain lawful permanent resident status can be removed by the government,
[35:47] Speaker 2: even if they've lived here for decades. And the same
[35:50] Speaker 2: is true for wholly innocent spouses and children whose own
[35:54] Speaker 2: immigration status is often derivative of a spouse's or parent's status.
[35:59] Speaker 1: How have the lower courts stood on this?
[36:01] Speaker 2: So this is another one of those areas where the
[36:03] Speaker 2: lower courts have split, and that's why the Supreme Court
[36:05] Speaker 2: agreed to hear it. But some of the courts have
[36:07] Speaker 2: sided with the aliens challenging their removal, and other courts
[36:11] Speaker 2: have sided with the government.
[36:13] Speaker 1: In immigration-related cases on the emergency docket, the Trump administration
[36:17] Speaker 1: has won overwhelmingly. Do you think that will hold true
[36:21] Speaker 1: here as well?
[36:23] Speaker 2: So I don't think that the Trump administration's win record
[36:26] Speaker 2: in the other immigration cases necessarily will translate here, because
[36:30] Speaker 2: oftentimes in this area, the administration has the benefit of
[36:34] Speaker 2: deference to the president's role under Article II in the
[36:38] Speaker 2: immigration area. And what's different about this case is it
[36:41] Speaker 2: really presents a technical question of statutory interpretation. So I
[36:46] Speaker 2: think this is going to be one of the cases
[36:48] Speaker 2: where the justices just roll up their sleeves and try
[36:50] Speaker 2: to figure out what this language means. you know, even
[36:53] Speaker 2: the more conservative justices are textualists. And if they conclude
[36:57] Speaker 2: that the language refers to anyone who's held asylum status
[37:02] Speaker 2: at any point, even if they don't hold it currently,
[37:04] Speaker 2: I think they'll give effect to that language.
[37:06] Speaker 1: Now, just this week on Tuesday, the Supreme Court on
[37:11] Speaker 1: the emergency docket decided to allow the Trump administration to
[37:15] Speaker 1: resume deporting undocumented immigrants to countries that they have no
[37:21] Speaker 1: connection to. They're going to hear arguments in the case
[37:25] Speaker 1: in December. What are the issues here?
[37:28] Speaker 2: So this is a challenge to the Trump administration's policy
[37:31] Speaker 2: that aliens with a final removal order may be promptly
[37:34] Speaker 2: removed to a third country, not listed in the removal order,
[37:38] Speaker 2: a country that was not their home country without any
[37:41] Speaker 2: prior notice to the alien or opportunity to be heard.
[37:45] Speaker 2: As long as the country is credibly assured the Secretary
[37:48] Speaker 2: of State, that it will not persecute or torture anyone.
[37:51] Speaker 3: And the case.
[37:52] Speaker 2: Involves a class action brought by aliens subject to removal
[37:55] Speaker 2: who claim they fear removal to countries not listed in
[37:58] Speaker 2: their removal order because they may be persecuted or tortured there,
[38:02] Speaker 2: and that they could be sent there even without prior
[38:04] Speaker 2: notice or an opportunity to be heard before they're removed. Now,
[38:08] Speaker 2: the government relies on federal immigration law. They argue that
[38:11] Speaker 2: the law strips courts of jurisdiction altogether from to enjoin
[38:15] Speaker 2: the operation of the Act's removal provisions. And in response,
[38:18] Speaker 2: the plaintiffs argue that constitutional due process and other provisions
[38:22] Speaker 2: of the Immigration Act entitle them at least to notice
[38:25] Speaker 2: an opportunity to be heard before they're removed to a
[38:28] Speaker 2: third country. The fact that the court granted the government's
[38:33] Speaker 2: request for a stay of a lower court ruling, which
[38:36] Speaker 2: it enjoined this practice, at the same time it granted certiorari,
[38:41] Speaker 2: suggests that the government may already have a majority of
[38:44] Speaker 2: the court for its position. But we'll have to wait
[38:47] Speaker 2: and see. We'll have full briefing and oral argument before
[38:50] Speaker 2: the court reaches a result.
[38:52] Speaker 1: Also, in two other instances when this came before the justices,
[38:56] Speaker 1: the conservatives sided with the Trump administration over the dissents
[39:01] Speaker 1: of the three liberals. Is there anything new that could
[39:03] Speaker 1: come up that would have them change what they've decided
[39:07] Speaker 1: basically three times?
[39:10] Speaker 3: Yeah, it's hard to know what that would be.
[39:12] Speaker 2: And we've seen this pattern play out a number of
[39:14] Speaker 2: times in recent years where the justices make rulings on
[39:18] Speaker 2: the emergency docket granting or denying stays, which are basically
[39:24] Speaker 2: many merits rulings. They're not actual merits rulings. They're only
[39:28] Speaker 2: talking about the likelihood of success. But those rulings, you know,
[39:31] Speaker 2: invariably line up with how the justices end up after
[39:35] Speaker 2: hearing the case following oral argument and full briefing.
[39:39] Speaker 1: Reportedly, some of these flights have turned into violent situations
[39:44] Speaker 1: with deportees who resist getting on the plane, being hit
[39:48] Speaker 1: with pepper balls and being tightly restrained and carried onto
[39:53] Speaker 1: the plane, will that have any bearing on the decision?
[39:56] Speaker 1: It seems so brutal.
[39:58] Speaker 2: From a human standpoint, it seems very difficult. And no
[40:02] Speaker 2: doubt the challengers here will make those circumstances front and
[40:06] Speaker 2: center in their briefs. But, you know, the justices, and
[40:09] Speaker 2: particularly the more conservative justices, are going to look carefully
[40:13] Speaker 2: to what the immigration statute says. And if they conclude
[40:16] Speaker 2: that Congress actually stripped courts of jurisdiction to enjoin these practices,
[40:22] Speaker 2: then they likely would give effect to that as several
[40:24] Speaker 2: of the justices have already signaled. And as you indicated earlier,
[40:28] Speaker 2: I mean, the Trump administration, generally speaking, has had a
[40:31] Speaker 2: pretty favorable record in these cases. And so this may
[40:35] Speaker 2: be another one where the justices would be more inclined
[40:38] Speaker 2: to defer to the president on this.
[40:41] Speaker 1: Greg, I look forward to our Supreme Court preview every year.
[40:45] Speaker 1: Thanks so much for taking the time to do it again.
[40:47] Speaker 1: And I'll be watching, or rather listening, when you argue
[40:51] Speaker 1: in the Apple versus Epic Games case later this term.
[40:56] Speaker 1: Thanks again.
[40:56] Speaker 3: Always great to connect. I enjoyed it.
[40:58] Speaker 1: That's former U.S. Solicitor General Gregory Garr, a partner at
[41:02] Speaker 1: Latham & Watkins. And that's it for this edition of
[41:05] Speaker 1: the Bloomberg Law Show. Remember, you can always get the
[41:08] Speaker 1: latest legal news on our Bloomberg Law Podcast. You can
[41:11] Speaker 1: find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash
[41:17] Speaker 1: podcast slash law. And remember to tune into the Bloomberg
[41:21] Speaker 1: Law Show every weeknight at 10 p.m. Wall Street time.
[41:25] Speaker 1: I'm June Grosso, and you're listening to Bloomberg.

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