# New SCOTUS Term & Thomas Disses Precedent

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 4 Oct 2025, 38 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/45e071d5-d46e-4737-9d25-b36c000a79b6/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Former United States Solicitor General Gregory Garre, a partner at Latham & Watkins, discusses the upcoming Supreme Court term. Constitutional law professor David Super, of Georgetown Law, discusses Justice Clarence Thomas’ comments downplaying the importance of precedent. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Brossel from Bloomberg Radio.
[0:10] Speaker 2: Honorable the Chief Justice and the Associate Justices of the
[0:14] Speaker 2: Supreme Court of the United States. Oh yay, oh yay,
[0:18] Speaker 2: Oh yay.
[0:20] Speaker 1: The new Supreme Court term begins on Monday, and it
[0:23] Speaker 1: promises to lead to several blockbuster decisions on the docket tariffs,
[0:29] Speaker 1: voting rights, religion, transgender rights, copyright and capital punishment, and
[0:36] Speaker 1: looming over it all, several tests of President Trump's attempts
[0:40] Speaker 1: to expand executive power. My guest is former United States
[0:44] Speaker 1: Solicitor General Gregory Garr, a partner at Latham and Watkins.
[0:49] Speaker 1: Greg let's start with one of the biggest cases of
[0:52] Speaker 1: the term, where trillions of dollars in trade are at stake,
[0:56] Speaker 1: as well as the extent of the president's authority away tariffs.
[1:01] Speaker 2: We could end up being a third World country.
[1:04] Speaker 1: Lower courts have ruled that Trump overstepped his authority in
[1:08] Speaker 1: imposing the tariffs, but now it will be up to
[1:12] Speaker 1: the Supreme Court to decide.
[1:14] Speaker 3: It's a very important decision, and frankly, if they make
[1:19] Speaker 3: the wrong decision, it would be a devastation for our country.
[1:22] Speaker 3: We've taken in trillions of dollars.
[1:25] Speaker 1: Greig, what are the issues here?
[1:27] Speaker 4: So this case involves a challenge brought by small businesses
[1:31] Speaker 4: to President Trump's tariff policy imposing tariffs on products from
[1:36] Speaker 4: companies around the world. Importantly, in this case, the president
[1:39] Speaker 4: doesn't assert inherent executive power to impose the tariffs, and
[1:43] Speaker 4: said he claims that Congress granted him the power under
[1:46] Speaker 4: a fifty year old statute called the International Emergency Economic
[1:50] Speaker 4: Powers Act, or AEPA, and Section seventeen oh two of
[1:53] Speaker 4: AEPA has a long list of things that the president
[1:57] Speaker 4: can do if he declares an emergency, as President Trump
[2:01] Speaker 4: did here on the basis of foreign trade deficits and
[2:05] Speaker 4: the Futonol crisis as to certain countries. So when the
[2:08] Speaker 4: president declares such an emergency, Congress authorized him to do
[2:12] Speaker 4: a number of things, including to quote unquote regulate the
[2:16] Speaker 4: importation of goods. So this statue doesn't mention tariffs expressly.
[2:22] Speaker 4: Before this year, no president in aiba's fifty year history
[2:25] Speaker 4: had ever invoked it to impose tariffs, and Congress has
[2:29] Speaker 4: always explicitly imposed limitations on the exercise of tariffs when
[2:33] Speaker 4: it's granted that power explicitly. But the President claims that
[2:37] Speaker 4: the broad reference to regulate in this statute does authorize
[2:41] Speaker 4: him to impose the tariffs. So far, he's lost that
[2:44] Speaker 4: argument in each of the lower courts that has considered it,
[2:47] Speaker 4: but the case is moving to the Supreme Court. And
[2:50] Speaker 4: one of the signature projects of the Roberts Court has
[2:54] Speaker 4: been the development of the so called major Questions doctrine,
[2:57] Speaker 4: which is built on the age old principle that Congress
[3:02] Speaker 4: does not hide elephants in mouseholes. So a couple of
[3:06] Speaker 4: years ago, the Supreme Court in Biden versus Nebraska held
[3:10] Speaker 4: the Department of Education lacked authority to institute sweeping student
[3:14] Speaker 4: loan forgiveness on the basis of a general emergency language
[3:18] Speaker 4: in the Hero's Act. And before then it held in
[3:21] Speaker 4: a different case that the EPA couldn't rely on a
[3:24] Speaker 4: general provision of the Clean Air Act to enforce sweeping
[3:27] Speaker 4: climate change regulation. And the challengers in this case essentially
[3:31] Speaker 4: argued that the same principle compels the conclusion that Ayapa's
[3:35] Speaker 4: general reference to regulate can't be interpreted to authorize the
[3:39] Speaker 4: President to impose what would amount to one of the
[3:42] Speaker 4: biggest text increases in US history, sort of the elephant
[3:46] Speaker 4: of all elephants. Now, in response, the administration claims that
[3:50] Speaker 4: the Court has never applied the major Questions doctrine to
[3:53] Speaker 4: the foreign affairs context, and that in that context, the
[3:56] Speaker 4: Court should presume that Congress would give the president more leeway,
[4:00] Speaker 4: which is actually something that Justice Kavanaugh suggested in a
[4:04] Speaker 4: concurring opinion last year. Nevertheless, it seems hard to square
[4:08] Speaker 4: the administration's position in this case with the application of
[4:12] Speaker 4: the major question doctrine in other cases, particularly given that
[4:15] Speaker 4: few presidential acts have had such a momentous economic sweep
[4:20] Speaker 4: as the president's tariff program has. So this is a
[4:23] Speaker 4: very big power he's asserting, and you know, we're all
[4:26] Speaker 4: waiting to see how the Court reacts to this particular assertion.
[4:30] Speaker 1: Well, the case is the Court is going to consider
[4:33] Speaker 1: this term. Do you think that this tariff's case presents
[4:37] Speaker 1: the most significant test of Trump's attempts to expand presidential power.
[4:44] Speaker 4: Well, this case is different, and that again, it really
[4:47] Speaker 4: just concerns the scope of the authority that Congress granted.
[4:51] Speaker 4: In other cases that I think we'll talk about the
[4:54] Speaker 4: question is the president's assertion of his own inherent constitutional authority.
[4:59] Speaker 4: But this case, it really just boils down to a
[5:01] Speaker 4: question of what Congress delegated. So I mean, even if
[5:04] Speaker 4: the administration did win this case, it would still lead
[5:08] Speaker 4: to Congress the prerogative to change the law. On the
[5:11] Speaker 4: other hand, the Court might hold, again, following its major
[5:14] Speaker 4: questions cases that Congress simply didn't delegate this elephant to
[5:18] Speaker 4: begin with.
[5:19] Speaker 1: Okay, So going on to a couple of other cases
[5:22] Speaker 1: that set up tests of presidential power over federal agencies
[5:26] Speaker 1: that have been independent. They involved Trump firing a member
[5:30] Speaker 1: of the Federal Trade Commission, Rebecca Slaughter, and a Federal
[5:32] Speaker 1: Reserve Board governor Lisa Cook, slightly different issues. So let's
[5:36] Speaker 1: start with the FTC commissioner and the law there that
[5:41] Speaker 1: says commissioners can only be removed for cause, right.
[5:44] Speaker 4: And this is one of the cases where the president
[5:46] Speaker 4: is asserting his own inherent authority and Congress has imposed
[5:51] Speaker 4: a limitation on the president's removal authority with respective heads
[5:54] Speaker 4: of the Federal Trade Commission and requires the President to
[5:58] Speaker 4: show cause things like malfeasance or neglect of duty or
[6:02] Speaker 4: the like before he can actually remove the official. And
[6:05] Speaker 4: in this case, the president removed the official Rebecca Slaughter
[6:09] Speaker 4: commissioner of the FTC simply because he disagreed with her
[6:14] Speaker 4: as a matter of policy. So this case tees up
[6:16] Speaker 4: a challenge to a nineteen thirty five decision called Humphrey's Executor,
[6:21] Speaker 4: where the Court upheld the Congress's in position of a
[6:24] Speaker 4: four cause requirement on the president's removal of commissioners of
[6:28] Speaker 4: the FTC. So it's basically just a redo and a
[6:31] Speaker 4: chance for the Supreme Court to reconsider it's Humphrey's Executor precedent.
[6:36] Speaker 4: The administration here is arguing, first of all, that the
[6:39] Speaker 4: FTC has changed a lot since the day of Humphrey's Executor.
[6:42] Speaker 4: In essence, this is not your grandfather's FTC. It's got
[6:46] Speaker 4: a lot more executive authority, and so whatever constitutional basis
[6:50] Speaker 4: the Court had for its decision in Humphrey's Executor, that
[6:53] Speaker 4: shouldn't apply to the FTC today. The administration also argues
[6:58] Speaker 4: that if the Court doesn't accept that, it should just
[7:00] Speaker 4: go ahead and overrule the Humphreys Executor decision, which is
[7:04] Speaker 4: something a number of the more conservative justices have expressed
[7:08] Speaker 4: a willingness to do in recent years. And the administration
[7:12] Speaker 4: is also arguing that, you know, even if the president
[7:14] Speaker 4: did do something wrong here, a court couldn't actually order
[7:17] Speaker 4: the reinstatement of the official miss slaughter. Here the only
[7:21] Speaker 4: remedy would be one for back pay, which is actually
[7:24] Speaker 4: the remedy that was sought in the Humphreys executor case.
[7:27] Speaker 4: So this is a major test of executive power. And really,
[7:31] Speaker 4: although the case arises in the context of firing an individual,
[7:35] Speaker 4: ultimately it's about the president seeking to gain control of
[7:38] Speaker 4: so called independent agencies by being able to place his
[7:42] Speaker 4: own preferred heads of those agencies in place.
[7:46] Speaker 1: So the Court has been chipping away at Humphrey's Executor
[7:49] Speaker 1: for a while, and Justice Elena Keigan said in one
[7:53] Speaker 1: of her recent decisions that you know, they're raring to
[7:55] Speaker 1: get rid of Humphrey's executor. Do you think Humphrey's executor
[7:58] Speaker 1: can survive this?
[8:01] Speaker 4: You know, it sure seems like they are raring to
[8:03] Speaker 4: get rid of it. And you know, I probably would
[8:05] Speaker 4: put my money on the side of it not surviving.
[8:08] Speaker 4: That said, I mean, it would be fairly easy for
[8:11] Speaker 4: the court to say that the FDC today is much
[8:13] Speaker 4: different than the FDC in Humphrey's Executor time, and so
[8:16] Speaker 4: to you know, further narrow Humphrey's executor. But I do
[8:19] Speaker 4: think it's the case that the justices probably have just
[8:22] Speaker 4: had enough, So I think Humphrey's executors' day's maybe number.
[8:26] Speaker 1: The Court refused to let Slaughter return to her job
[8:30] Speaker 1: as the litigation goes forward, and that sets it apart
[8:33] Speaker 1: from the next case we'll talk about involving Trump's attempts
[8:37] Speaker 1: to fire Federal Reserve Board Governor Lisa Cook. And this
[8:41] Speaker 1: week the Court said that Trump can't fire Cook as
[8:45] Speaker 1: the litigation is proceeding. Is that different significant?
[8:50] Speaker 4: Yeah? I think it is. I mean it's the one
[8:52] Speaker 4: time among all the other officials that the President has
[8:55] Speaker 4: fired that the Supreme Court has declined to grant the
[8:58] Speaker 4: administration's request us to permit it to actually remove the
[9:02] Speaker 4: official once and for all. And instead, what the Supreme
[9:05] Speaker 4: Court did here was set the case for argument on
[9:08] Speaker 4: the administration's emergency request in January. Cook's case is different.
[9:13] Speaker 4: Cook is a member of the Board of Governors of
[9:15] Speaker 4: the Federal Reserve, and here the President is in claiming
[9:18] Speaker 4: that he had the right to fire Cook for any reason.
[9:21] Speaker 4: He claims that he had cause based on allegations that
[9:25] Speaker 4: she had engaged in mortgage fraud before she became a
[9:28] Speaker 4: member of the FED. So that's one way in which
[9:30] Speaker 4: the case is different than the Slaughter case. And then
[9:33] Speaker 4: also the Supreme Court has indicated in prior opinions that
[9:37] Speaker 4: the FED may be different and that it's what the
[9:39] Speaker 4: Supreme Court called a uniquely structured in quasi private entity
[9:44] Speaker 4: with the unique history. So even if the Court is
[9:47] Speaker 4: poised to overrule Humphrey's executor in the case of an
[9:50] Speaker 4: FDC official, it's not at all clear that the Court
[9:53] Speaker 4: is poised to reach anything like that result in the
[9:56] Speaker 4: context of the FED, which I think many believe is
[10:00] Speaker 4: is uniquely important in terms of its insulation from immediate
[10:04] Speaker 4: presidential control.
[10:05] Speaker 1: Let's turn to a business case where Cox Communications is
[10:09] Speaker 1: trying to overturn a one billion dollar verdict in a
[10:13] Speaker 1: suit by the music industry.
[10:15] Speaker 4: This case involves the important copyright question of whether an
[10:18] Speaker 4: Internet service provider can be held contributorily liable for its
[10:22] Speaker 4: customers act of copyright infringement. So the Internet service provider
[10:27] Speaker 4: allows streaming and someone at his home improperly downloads music.
[10:32] Speaker 4: The Court of Appeals held that a culpable intent to
[10:35] Speaker 4: facilitate infringement could be inferred simply on the basis that
[10:40] Speaker 4: the Internet service provider continued to provide services after it
[10:44] Speaker 4: knew that those services were being used to commit direct infringement.
[10:48] Speaker 4: And what the challengers argued here, pointing to prior Supreme
[10:51] Speaker 4: Court present in this area, is that near knowledge of
[10:55] Speaker 4: an actual infringing use is insufficient to impose secondary liability
[11:00] Speaker 4: on the seller of goods or services, and that instead
[11:03] Speaker 4: what the copyright infringement law requires is a culpable intent
[11:08] Speaker 4: to facilitate direct infringement, when that would be like evidence
[11:11] Speaker 4: that the merchant urged another to infringe or actually set
[11:15] Speaker 4: up a platform that lacked any significant non infringing uses
[11:19] Speaker 4: anything apart from that, The internet service provider Coxcommunication here
[11:24] Speaker 4: argues it would create a substantial disincentive for the provision
[11:28] Speaker 4: of universal Internet service, which could affect all of us,
[11:31] Speaker 4: or at least anyone in a home or a teenager
[11:34] Speaker 4: has improperly downloaded music.
[11:36] Speaker 1: Yeah, Cox Communication argued that Grandma will be thrown off
[11:39] Speaker 1: the Internet because Junior visited and illegally downloaded songs. Coming
[11:45] Speaker 1: up next more with Gregory gar on transgender rights, religion
[11:49] Speaker 1: and voting maps. I'm June Grosso and you're listening to Bloomberg.
[11:54] Speaker 1: Lindsay Heacox is a transgender woman who participated in club
[11:59] Speaker 1: level running soccer at Boise State University and believes she
[12:03] Speaker 1: should be able to play sports like everyone else.
[12:06] Speaker 4: I don't even think most of my teammates would even
[12:09] Speaker 4: think of.
[12:10] Speaker 3: Me as trans. I just look like a regular girl.
[12:14] Speaker 1: But in twenty twenty, Idaho passed the first of its
[12:18] Speaker 1: kind law barring transgender women and girls from participating on
[12:22] Speaker 1: female sports teams. A federal appellate court ruled that the
[12:27] Speaker 1: ban violated the Equal Protection Clause and couldn't be enforced.
[12:31] Speaker 1: But now Hee Cox's case, along with that of a
[12:35] Speaker 1: fifteen year old transgender girl from West Virginia, is before
[12:39] Speaker 1: the Supreme Court. I've been talking to former US Solicitor
[12:43] Speaker 1: General Gregory Garr, a partner at Letham and Watkins. Greg
[12:47] Speaker 1: These are two of the most closely watched cases of
[12:50] Speaker 1: the term where the Court is going to decide whether
[12:54] Speaker 1: states can ban transgender women and girls from competing on
[12:58] Speaker 1: female athletic teams. The Ninth Circuit blocked Idaho's ban based
[13:03] Speaker 1: on the Equal Protection Clause, but the Fourth Circuit blocked
[13:07] Speaker 1: West Virginia's ban based on Title nine, which prohibits sex
[13:11] Speaker 1: discrimination in federally funded educational programs, tell us about the issues.
[13:16] Speaker 4: Here, so it wouldn't be a Supreme Court term with that.
[13:19] Speaker 4: A return to the culture wars in this case definitely
[13:21] Speaker 4: presents that, and the cases from both circuits do present
[13:25] Speaker 4: the different questions of the equal Protection Clause in Title
[13:27] Speaker 4: nine and challenges to the validity of state laws that
[13:30] Speaker 4: prohibit transgender girls and women from competing in girls and
[13:34] Speaker 4: women's sports. These are laws that I think about half
[13:38] Speaker 4: of the states have, and the main legal question in
[13:41] Speaker 4: the case is whether it's sex discrimination when a state
[13:45] Speaker 4: mandates that only biological females can compete in female sports.
[13:51] Speaker 4: Both cases involve transgender girls who want to compete on
[13:55] Speaker 4: female cross country teams. So last year, as you remember,
[14:00] Speaker 4: in US versus Scrimti, the Court held that a Tennessee
[14:03] Speaker 4: law banning puberty blockers and homeowned therapy for transgender miners
[14:07] Speaker 4: did not engage in sex based discrimination, violating the Equal
[14:11] Speaker 4: Protection Clause, and it seems likely that the courtal reach
[14:14] Speaker 4: a similar conclusion here. In fact, picking up on Justice
[14:17] Speaker 4: Ginsberg's own writings, the government argues that the laws here
[14:21] Speaker 4: simply take into account the physical differences between men and women,
[14:25] Speaker 4: and that therefore they don't really engage in impermissible discrimination
[14:29] Speaker 4: to begin with. Now that plaintiffs sort of counter with
[14:32] Speaker 4: the Supreme Court's decision in boss Stock versus Clayton County,
[14:36] Speaker 4: where the Court held the discrimination based on gender or
[14:38] Speaker 4: sexual identity is discrimination on the basis of sex under
[14:42] Speaker 4: Title seven. But the Supreme Court distinguished and I think
[14:45] Speaker 4: limited Bostoc in the Sucurmety case last year, and I
[14:49] Speaker 4: think that challengers probably have a hard argument in pushing
[14:53] Speaker 4: Bostok to the Supreme Court in this case. The supporters
[14:57] Speaker 4: of these laws also argue that allowing biological males to
[15:02] Speaker 4: compete in women's sports would defeat the whole purpose of
[15:04] Speaker 4: Title nine. So you know, this is again one of
[15:07] Speaker 4: these cases that really sort of hits hard on the
[15:09] Speaker 4: culture wars, and the Court I think will be following
[15:12] Speaker 4: out Bonnette's decision last year in Scrematti and we'll see
[15:15] Speaker 4: what it does.
[15:16] Speaker 1: And it also wouldn't be a Supreme Court term without
[15:19] Speaker 1: a religious rights case. A Rastafarian wants to suit prison
[15:23] Speaker 1: officials in Louisiana who forcibly shaved him bald in violation
[15:28] Speaker 1: of his religious beliefs. The Court has considered a lot
[15:32] Speaker 1: of cases involving the rights of Christians, but I don't
[15:36] Speaker 1: know of any until now involving the rights of Rastafarians.
[15:40] Speaker 4: Yeah, and the court's been very active in the area
[15:42] Speaker 4: of religion recently, and you know, generally as sided with
[15:45] Speaker 4: proponents of religious liberty. The facts of this case are
[15:48] Speaker 4: really pretty extreme and outrageous. In this case is brought
[15:52] Speaker 4: by a Rastafarian, Immey, who is suing a state prison
[15:56] Speaker 4: official under what's called the Religious Land Use in Institutional
[15:59] Speaker 4: Persons Act or our LUPA, and he claims that when
[16:02] Speaker 4: he was transferred to a new prison, the prison official
[16:05] Speaker 4: allegedly handcuffed him to a chair and actually shaved his head,
[16:09] Speaker 4: even though he told the guard that he had taken
[16:11] Speaker 4: a religious vow not to cut off his hair, which
[16:14] Speaker 4: he had honored for over a decade, and actually handed
[16:17] Speaker 4: the guard a copy of a Fifth Circuit decision holding
[16:20] Speaker 4: that cutting the hair of a Rastafarian inmate would violate
[16:23] Speaker 4: the inmate's religious liberties, so that the inmate brought suit
[16:28] Speaker 4: seeking monetary damages against the prison officials involved in this process.
[16:33] Speaker 4: So under a different law, the Religious Freedom Restoration Act,
[16:36] Speaker 4: the Supreme Court is held that inmates can get money
[16:39] Speaker 4: damages against federal officers who violate their religious liberties. And
[16:44] Speaker 4: so the basic questions whether the same rule would apply
[16:46] Speaker 4: to state officers under our LUPA the parallel statute, and
[16:50] Speaker 4: it would seem like the answer would have to be yes.
[16:53] Speaker 4: But the state argues that because our LUPA was passed
[16:55] Speaker 4: under Congress's spending clause power, where Congress generally attaches strings
[17:00] Speaker 4: to federal funding grants, the state argues that a different
[17:03] Speaker 4: rule applies because the state has never agreed to these
[17:06] Speaker 4: sorts of terms to be subjected to money damages suits.
[17:10] Speaker 4: And then the state also argues that if the court
[17:12] Speaker 4: accepts the inmate's position, it's going to only exacerbate the
[17:16] Speaker 4: shortage of people who are willing to serve as prison guards.
[17:19] Speaker 4: I'm not sure that that's going to be enough here.
[17:22] Speaker 4: I mean, I think that the facts of this case
[17:24] Speaker 4: in particular may weigh in the court, and the Trump
[17:27] Speaker 4: administration here is actually supporting the inmate in this case,
[17:31] Speaker 4: so that the state may have an uphill battle in
[17:33] Speaker 4: his hands.
[17:33] Speaker 1: But we'll see the only case I can remember recently
[17:37] Speaker 1: where religious rights didn't win at the Court was the
[17:40] Speaker 1: case you argued in one last term on the effort
[17:44] Speaker 1: to create the country's first faith based charter school. So
[17:48] Speaker 1: we'll see what this term brings. Let's turn now to
[17:51] Speaker 1: congressional maps, a hot topic lately. The Court is going
[17:55] Speaker 1: to hear a case involving Louisiana's map that could have
[17:58] Speaker 1: implications for elections dozens of congressional districts with predominantly minority populations.
[18:05] Speaker 1: And this case was already argued at the Supreme Court.
[18:09] Speaker 4: Yeah, so the case was argued in brief last term
[18:13] Speaker 4: and the Court couldn't reach a decision, so they set
[18:15] Speaker 4: it for reargument and consideration this term. And this case
[18:19] Speaker 4: really has sort of had a long and tortuous history already.
[18:23] Speaker 4: So after the twenty twenty census, Louisiana legislature, like many states,
[18:27] Speaker 4: went back and redrew its congressional maps, and the new
[18:30] Speaker 4: map it drew had one majority black district out of
[18:34] Speaker 4: six districts statewide. At that point, a group of black
[18:38] Speaker 4: voters brought suit against the state, arguing that the plan
[18:41] Speaker 4: and permissively diluted the votes of black residents in violation
[18:45] Speaker 4: of Section two of the Voting Rights Act because nearly
[18:47] Speaker 4: a third of the state's population is black. So the
[18:50] Speaker 4: lower courts ultimately ordered the state to draw a new map,
[18:53] Speaker 4: and the new map contained a second black majority district.
[18:56] Speaker 4: But this time a group of non black residents went
[18:59] Speaker 4: to federal court and argued that the twenty twenty four
[19:01] Speaker 4: map impermissibly took race into account in the other direction,
[19:05] Speaker 4: and so it was itself invalid. So the state went
[19:08] Speaker 4: to the Supreme Court, said it was between Iraq and
[19:11] Speaker 4: a hard place, and asked the Court to resolve it.
[19:13] Speaker 4: And as you noted, the Court was enabled to do
[19:15] Speaker 4: so last term. So it set up for reargument again
[19:18] Speaker 4: and basically up the ante by asking the parties to
[19:21] Speaker 4: brief the question of whether the state's intentional creation of
[19:25] Speaker 4: a second majority minority district to comply with the Voting
[19:28] Speaker 4: Rights Act actually violated the equal protection clause. So now
[19:31] Speaker 4: the Court is faced with the question that is sort
[19:34] Speaker 4: of long beleegud at the court in voting rights cases,
[19:36] Speaker 4: which is, how do you square the fact that you
[19:37] Speaker 4: have to take race into account to comply with the
[19:40] Speaker 4: protections of the Voting Rights Act with the fact that
[19:42] Speaker 4: the Constitution Protection Class generally prohibited states from taking race
[19:46] Speaker 4: into account and making important decisions, so this case could
[19:50] Speaker 4: definitely have a major effect on Section two litigation going forward.
[19:54] Speaker 4: The Government, for its part, argues that Section two's results
[19:57] Speaker 4: tests is unconstitutional requires the states to draw majority minority
[20:02] Speaker 4: districts where race predominates, and that basically, when a planet
[20:06] Speaker 4: passed to show to prevail under its view of the
[20:08] Speaker 4: Voting Rights Act, as it must show that the new
[20:10] Speaker 4: district is superior under race neutral districting principles. So the
[20:15] Speaker 4: Voting Rights Act is one area where we've seen some
[20:18] Speaker 4: consequential decisions in the past few years, and this is
[20:21] Speaker 4: a case that definitely should be followed closely.
[20:24] Speaker 1: The Court gutted part of the Voting Rights Act in
[20:27] Speaker 1: the Shelby County versus Holder case in twenty thirteen, and
[20:32] Speaker 1: some justices have questioned the constitutionality of race based districts.
[20:37] Speaker 1: A quote the challenges used here was one from Justice
[20:40] Speaker 1: Brett Kavanov. The authority to conduct race based cannot extend
[20:44] Speaker 1: indefinitely into the future. Does it seem as if the
[20:47] Speaker 1: Court is heading in that direction to get rid of
[20:51] Speaker 1: the consideration of race in map drilling?
[20:54] Speaker 4: Well, the hesitation, reluctance, and hostility to consideration of race
[20:58] Speaker 4: in a number of areas, including a permative action and
[21:00] Speaker 4: the like, has definitely been one of the sort of
[21:04] Speaker 4: emphasises of this court. Interestingly, the Court just a couple
[21:08] Speaker 4: of years ago, in a case out of Alabama, by
[21:11] Speaker 4: a five to four vote, upheld a map that was
[21:13] Speaker 4: challenged out of Alabama. So it would be, you know,
[21:17] Speaker 4: something of a right turn for the Court to go
[21:20] Speaker 4: ahead and validate Section two of the Voting Rights Act
[21:23] Speaker 4: on constitutional grounds more broadly, and we don't know. I think,
[21:27] Speaker 4: based on the fact that the Court was unable to
[21:29] Speaker 4: reach a decision last term in this case, it suggests
[21:33] Speaker 4: that the Justices are struggling. The fact that they've added
[21:36] Speaker 4: this broader constitutional question doesn't mean that the Justices have
[21:39] Speaker 4: to resolve it on that basis. I think if there's
[21:42] Speaker 4: anything we can sort of speculate at this point is
[21:45] Speaker 4: that the Justices are closely divided on this issue.
[21:48] Speaker 1: So the Court is going to hear another death penalty case.
[21:51] Speaker 1: It hurt a couple last term. This time it's about
[21:54] Speaker 1: what defendants have to show in order to prove that
[21:58] Speaker 1: they're mentally disabled and thus ineligible for the death penalty.
[22:03] Speaker 4: The death penally has actually been a pretty interesting area
[22:06] Speaker 4: for this court. Last term it had three death penalty
[22:08] Speaker 4: cases and the death row inmate won in all three
[22:12] Speaker 4: of those cases. And so this term, as you said,
[22:14] Speaker 4: it's revisiting the constitutional limits on the execution of intellectually
[22:18] Speaker 4: disabled individuals. In a case called Atkins versus Virginia, the
[22:23] Speaker 4: Court held at the Eighth Amendment prohibits the execution of
[22:26] Speaker 4: individuals who are intellectually disabled, which has generally been defined
[22:30] Speaker 4: to mean someone having an IQ of seventy or below.
[22:33] Speaker 4: And so the question in this case is what are
[22:36] Speaker 4: court's supposed to do when they're presented with multiple IQ scores,
[22:40] Speaker 4: one of which falls below the line. And in this case,
[22:43] Speaker 4: the inmate had multiple IQ scores of seventy five, seventy four,
[22:47] Speaker 4: seventy two, seventy eight, and seventy four again, and so
[22:51] Speaker 4: all five of these scores were above seventy, but one
[22:54] Speaker 4: of the scores, the seventy two, actually falls below the
[22:57] Speaker 4: line if you accept the standard range for error, which
[23:00] Speaker 4: would put his score at sixty nine. The Court of
[23:02] Speaker 4: Appeals nevertheless held that the death sentence should be set
[23:06] Speaker 4: aside the inmate argues that it was right and that
[23:09] Speaker 4: you could actually just look beyond the low IQ score
[23:12] Speaker 4: and if you looked sort of holistically at the evidence,
[23:15] Speaker 4: including testimony about the inmates intellectual disability, that it was
[23:20] Speaker 4: unconstitutional to execute him. But the state argues that the
[23:24] Speaker 4: fact that there are so many scores above seventy should
[23:28] Speaker 4: be in itself decisive, and that this is an area
[23:31] Speaker 4: where the courts should defer to the state's judgment, at
[23:34] Speaker 4: least where it's based on multiple ice Q scores about seventy.
[23:38] Speaker 4: So it's an interesting question. And again, I mean, this court,
[23:42] Speaker 4: you know, maybe a little bit against what some might expect,
[23:46] Speaker 4: has actually been more receptive to the claims of death
[23:49] Speaker 4: row inmates. But we'll see if less terms run of
[23:52] Speaker 4: successes carries over into this term.
[23:54] Speaker 1: The Court's going to be accepting more cases as the
[23:57] Speaker 1: term goes along. You have the shadow dock. It's so active.
[24:00] Speaker 1: But do you think that in the end this term
[24:01] Speaker 1: is going to be you know, the headlines afterwards will
[24:04] Speaker 1: be about the expansion or perhaps limitation of presidential power.
[24:10] Speaker 4: No question. One of the big sort of headline questions
[24:13] Speaker 4: of this term will be the exercise of executive power.
[24:18] Speaker 4: I mean, we have an administration that is boldly exercising
[24:22] Speaker 4: executive power across the number of fronts, and those cases
[24:25] Speaker 4: are now coming to the Supreme Court. So I think
[24:27] Speaker 4: that it's likely that that will be one of the
[24:30] Speaker 4: headlines of this term. Whether the headline is that the
[24:33] Speaker 4: President has succeeded in expanding executive power or that the
[24:37] Speaker 4: Supreme Court has pushed back against assertions of executive power,
[24:41] Speaker 4: we don't know. There are a number of really important
[24:44] Speaker 4: cases already on the docket, and as you indicated, there
[24:47] Speaker 4: are more cases in the pipeline, in the emergency docket
[24:50] Speaker 4: and otherwise, And if you go back over the last
[24:52] Speaker 4: couple of terms, you know many of the most important
[24:55] Speaker 4: cases are added to the Court's docket after this point
[24:58] Speaker 4: in time. So this is really I'm just the tip
[25:00] Speaker 4: of the iceberg.
[25:01] Speaker 1: Well, thanks for taking us through these major cases. Greg
[25:04] Speaker 1: that's former US Solicitor General Gregory Garr coming up. Justice
[25:09] Speaker 1: Thomas dis is precedent. I'm June Grosso and you're listening
[25:13] Speaker 1: to Bloomberg.
[25:15] Speaker 2: Just think of law as these cases as a series
[25:19] Speaker 2: of kate of cars on a long train, and you
[25:23] Speaker 2: just accept the train and you just add another car.
[25:27] Speaker 2: We just follow wherever it's going. We never go to
[25:30] Speaker 2: the front see who's driving the train, where's it going?
[25:34] Speaker 2: And you could go up there in the engine room
[25:38] Speaker 2: and find us an orangutang drive in the train, and
[25:40] Speaker 2: would you want to follow that just because it's a train.
[25:44] Speaker 1: Justice Clarence Thomas use that train metaphor to downplay the
[25:48] Speaker 1: importance of settled law or precedent into ciding new cases.
[25:53] Speaker 1: Thomas said he wouldn't follow precedent if it doesn't make
[25:56] Speaker 1: sense to him.
[25:57] Speaker 2: And I don't think that any of these cases that
[25:59] Speaker 2: have and decided are the gospel.
[26:02] Speaker 1: The Roberts Court has overturned precedents in at least twenty
[26:06] Speaker 1: five cases since two thousand and five, including the constitutional
[26:10] Speaker 1: right to abortion, race conscious college admissions, and judicial deference
[26:16] Speaker 1: to federal agencies, and in the upcoming term, the Court
[26:20] Speaker 1: will be considering challenges to several long standing precedents, like
[26:24] Speaker 1: the ninety year old president limiting the president's ability to
[26:28] Speaker 1: fire members of independent agencies, and a landmark nineteen eighty
[26:33] Speaker 1: six decision about the use of race in redistricting under
[26:37] Speaker 1: the Voting Rights Act. So are Thomas's comments dissing precedent
[26:42] Speaker 1: a sign of things to come. My guest is constitutional
[26:45] Speaker 1: law expert David super, a professor at Georgetown Law. David,
[26:50] Speaker 1: what was your reaction to Thomas's comments?
[26:54] Speaker 3: Justice Thomas's remarks were quite remarkable. He said that as
[26:59] Speaker 3: here in to precedent is perhaps overrated. He compared it
[27:03] Speaker 3: to a situation where people are riding a train without
[27:08] Speaker 3: knowing who's in the cabin driving the engine and suggested
[27:13] Speaker 3: that that might well be an orangutan, and we should
[27:16] Speaker 3: not take directions from an orangutan. I've never compared the
[27:20] Speaker 3: US Supreme Court to an orangutan, but he has apparently,
[27:24] Speaker 3: And he said that precedent may be something that one
[27:28] Speaker 3: person just bought up and everyone else said, yeah, let's
[27:31] Speaker 3: go along. And on that basis, he thinks that the
[27:34] Speaker 3: court needs to be more willing to overrule precedent unless
[27:38] Speaker 3: deferential to president.
[27:39] Speaker 1: When the Supreme Court justices have their confirmation hearings, they
[27:43] Speaker 1: all say, oh, you know, we're going to follow precedent. Yes, yes, yes,
[27:47] Speaker 1: And of course they don't in many cases explain the
[27:51] Speaker 1: importance of precedents in the law.
[27:54] Speaker 3: Well, Precedent is what makes the courts distinctive. Anybody can
[28:00] Speaker 3: side however they want at the moment. Why we listen
[28:04] Speaker 3: to the courts is because they are bound by the law,
[28:07] Speaker 3: and in the Anglo American system, the law is precedent.
[28:11] Speaker 3: We even have a fancy term for it, starry decisis,
[28:15] Speaker 3: and it is supposed to be what keeps unelected judges
[28:20] Speaker 3: from acting willfully and just pursuing their personal agenda. And
[28:25] Speaker 3: I find it exceedingly strange that perhaps the Court's most
[28:29] Speaker 3: vociferous originalist is taking this view, because if there is
[28:34] Speaker 3: one core principle of the original understanding of the courts
[28:38] Speaker 3: is that they were bound by precedent. That's the essence
[28:42] Speaker 3: of the common law system that England had for many
[28:46] Speaker 3: centuries before the founding of this country, and that originalists
[28:50] Speaker 3: like Justice Thomas say, should control how we decide things now.
[28:55] Speaker 3: There are important decisions that were handed down I have
[29:00] Speaker 3: six hundred years ago that decided difficult questions and that
[29:04] Speaker 3: no court since then has ever disputed. Just as Thomas
[29:09] Speaker 3: seems to suggest that that core original aspect of Anglo
[29:13] Speaker 3: American jurisprudence is irrelevant, he.
[29:16] Speaker 1: Also said, it's not the gospel, which I always thought
[29:19] Speaker 1: President was the Gospel. But as you mentioned, he in
[29:22] Speaker 1: a backhanded way, made fun of prior Supreme Court justices.
[29:27] Speaker 1: He said, the President, if it's totally stupid and that's
[29:30] Speaker 1: what they've decided, you don't go along with it just
[29:33] Speaker 1: because it's decided.
[29:34] Speaker 3: Well, it suggests that the current court is smart and
[29:38] Speaker 3: its predecessors are foolish, which is a remarkably condescending approach.
[29:44] Speaker 3: It's also an ahistorical approach. We've had many brilliant justices
[29:49] Speaker 3: on the Court. We've had many courts that historians regard
[29:54] Speaker 3: as all star courts, packed with brilliant legal minds, and
[29:58] Speaker 3: to suggest that they can compared to orangutans is disappointing.
[30:03] Speaker 1: This is not really anything new for Justice Thomas. The
[30:07] Speaker 1: late Justice Antonin Scalia told one of Thomas's biographers quote
[30:12] Speaker 1: he doesn't believe in starry, decisive period and Thomas has
[30:16] Speaker 1: also frequently suggested overturning landmark opinions in cases that are
[30:22] Speaker 1: not before the court.
[30:23] Speaker 3: Well, and it's important that Justice Clia was Justice Thomas's
[30:27] Speaker 3: best friend on the court and most frequent ally, But
[30:32] Speaker 3: unlike Justice Thomas, Justice Clia generally decided the cases that
[30:38] Speaker 3: were brought for him, whereas Justice Thomas for a long
[30:42] Speaker 3: time has written concurring or descending opinions inviting parties to
[30:48] Speaker 3: bring cases to the court. That departs from another important
[30:53] Speaker 3: aspect of originalism, which is that the courts are passive.
[30:58] Speaker 3: They take the cases that come to them, but they
[31:00] Speaker 3: don't go out trying to do affirmative policy making. Again,
[31:04] Speaker 3: that goes back hundreds and hundreds of years, and an
[31:08] Speaker 3: originalist like Justice Thomas should be particularly anxious to follow
[31:13] Speaker 3: the traditional role of the courts as passive deciders rather
[31:17] Speaker 3: than as policymakers with an agenda.
[31:21] Speaker 1: The Robert's Court has overturned around twenty five precedents, but
[31:25] Speaker 1: in May, the Chief Justice talked about how the Roberts
[31:28] Speaker 1: Court has overturned precedence at the lowest rate of recent courts.
[31:33] Speaker 1: A New York Times study found that the Roberts Court
[31:37] Speaker 1: averaged one point six reversals a term. But if you
[31:41] Speaker 1: look at averages, that ignores the significance of the precedents
[31:46] Speaker 1: they've overturned, doesn't it.
[31:48] Speaker 3: Well, it does, and it also is subject to a
[31:53] Speaker 3: lot of counting. There have been many, many, many cases
[31:57] Speaker 3: about abortion rights. After Row be weighed, do you say
[32:01] Speaker 3: that Bob's only overturned row. No, it made a whole
[32:04] Speaker 3: bunch of other cases irrelevant and wrong as well when
[32:08] Speaker 3: they said this or that restriction on abortion was unconstitutional.
[32:12] Speaker 3: So you have to make some very arbitrary choices in
[32:16] Speaker 3: doing account like that. There are going to be some
[32:20] Speaker 3: very very technical cases in admiralty law that may get
[32:25] Speaker 3: overturned because of new technology, and no one really knows
[32:28] Speaker 3: or cares. And then they're going to be sweeping decisions
[32:32] Speaker 3: about the Fourteenth Amendment about the separation of powers, and
[32:36] Speaker 3: that kind of counting game blurs all of them together.
[32:40] Speaker 1: The president that seems to have a target on it
[32:43] Speaker 1: this term is Humphrey's Executor, which protects members of independent agencies.
[32:49] Speaker 1: And just as Elena Kagan, in a descent from the
[32:51] Speaker 1: majority decision allowing the president to fire the last Democratic
[32:57] Speaker 1: member of the FTC, her colleagues are quote raring to
[33:02] Speaker 1: overturn Humphrey's Executor. Do you think that will be the
[33:05] Speaker 1: next precedent to go?
[33:07] Speaker 3: It will be unless they overturned something else first. Humphrey's
[33:11] Speaker 3: Executor is clearly on its way out. There's a real
[33:14] Speaker 3: irony here because Justices Gorsuch and Capitol have criticized lower
[33:20] Speaker 3: courts for not showing an up respect for Supreme Court president,
[33:24] Speaker 3: even when that precedent is handed down through the shadow docket,
[33:29] Speaker 3: without full briefing, without oral argument, without much of an opinion.
[33:33] Speaker 3: And here Justice Thomas, their partner is turning around and
[33:38] Speaker 3: saying that he would disrespect Supreme Court decisions even that
[33:42] Speaker 3: were fully argued, fully briefed, and the result of painstaking opinion.
[33:47] Speaker 3: I think the Justice need to decide whether the work
[33:50] Speaker 3: of the Supreme Court is or is not entitled to
[33:53] Speaker 3: great deference.
[33:54] Speaker 1: President Trump is asking the Justices to take his appeal
[33:58] Speaker 1: concerning his executive ordered to end birthright citizenship. If the
[34:02] Speaker 1: Justices take that case, does that say, yes, we're going
[34:06] Speaker 1: to overturn the precedent from eighteen ninety eight that supported birthright.
[34:12] Speaker 3: Citizenship, and as the President handed down by arguably the
[34:16] Speaker 3: most conservative Supreme Court in the nation's history, So it
[34:20] Speaker 3: would be quite remarkable to overturn that case. I think
[34:25] Speaker 3: the Justices will take this simply because it's a high
[34:29] Speaker 3: profile and very important matter that the President has been emphasizing.
[34:34] Speaker 3: I would have trouble imagining how they could overturn it.
[34:38] Speaker 3: The original opinion is based on analysis of historical uses
[34:44] Speaker 3: of terms going back hundreds of years. It's a very
[34:46] Speaker 3: model of originalism. Any aerious originalist approach would affirm the
[34:52] Speaker 3: plain language of the fourteenth Amendment and the decision from
[34:57] Speaker 3: the nineteenth century.
[34:58] Speaker 1: In a concurringinion in the Dobbs case, Thomas urged his
[35:04] Speaker 1: colleagues to reconsider all of the Court's substantive due process
[35:09] Speaker 1: precedence and explicitly called on the Court to overturn the
[35:14] Speaker 1: decisions that established the right to obtain contraception, the right
[35:18] Speaker 1: to same sex intimacy, and the right to same sex marriage.
[35:22] Speaker 1: And now the Court is being asked to overturn the
[35:26] Speaker 1: Obergerfeld decision, which legalized same sex marriage in a case
[35:31] Speaker 1: involving Kim Davis, the former Kentucky clerk who refused to
[35:36] Speaker 1: give a marriage license to a same sex couple because
[35:40] Speaker 1: of her religious beliefs. Do you think that same sex
[35:43] Speaker 1: marriage is in jeopardy?
[35:45] Speaker 3: It certainly is in jeopardy. It's hard to know what
[35:48] Speaker 3: the Court will do. Chief Justice Roberts has been insisting
[35:52] Speaker 3: that the judges look at cases on their merits and
[35:55] Speaker 3: are not pursuing a political agenda. If the Court turns
[35:59] Speaker 3: over for a decision handed down barely a decade ago
[36:05] Speaker 3: that has had this profounded impact on the nation's fabric.
[36:11] Speaker 3: I think his effort to persuade people that this Court
[36:14] Speaker 3: is anything other than a super legislature will fail.
[36:17] Speaker 1: I mean, do you think Thomas with these statements as
[36:20] Speaker 1: an outlier that the other justices are sort of cringing
[36:24] Speaker 1: when they hear them.
[36:25] Speaker 3: I imagine the Chief Justice was cringing all the way
[36:29] Speaker 3: through reading accounts of this, because Justice Thomas is so
[36:34] Speaker 3: overtly politicizing the court. But Justice Thomas is winning a
[36:38] Speaker 3: lot more cases than he's losing these days, So it
[36:42] Speaker 3: would seem that a number of other justices are pretty
[36:45] Speaker 3: comfortable with this approach. But I think, first and foremost
[36:49] Speaker 3: the Chief but certainly also Justice Barrett, would rather we
[36:52] Speaker 3: not be this explicit about the Court pursuing its own agenda.
[36:57] Speaker 3: But Justice Thomas, I guess, is still he's reached the
[37:00] Speaker 3: point where he sees no reason to be secretive about it.
[37:03] Speaker 3: He's got a super majority, he can lose a very
[37:06] Speaker 3: conservative justice and still win a case. And though he's
[37:10] Speaker 3: prepared to dispense with pretense, And why.
[37:13] Speaker 1: Do you say Justice Barrett in particular.
[37:16] Speaker 3: Well, she's given a couple of interviews lately in which
[37:20] Speaker 3: she said that we're not at a constitutional crisis and
[37:24] Speaker 3: things are working more or less ordinarily, and they sort
[37:27] Speaker 3: of downplaying the importance of what's happening and seems to
[37:32] Speaker 3: suggest that what we're doing is simply a technical act
[37:36] Speaker 3: of judging, and Justice Thomas is saying, no, I'm not
[37:39] Speaker 3: doing technical judging. I'm getting rid of the stupid stuff.
[37:42] Speaker 1: Well, we're off to a new start on Monday, and
[37:45] Speaker 1: we'll see if any precedents are overturned this term. Thanks
[37:49] Speaker 1: so much, David. That's Professor David Super of Georgetown Law.
[37:53] Speaker 1: And that's it for this edition of The Bloomberg Law Show.
[37:56] Speaker 1: Remember you can always get the latest legal news on
[37:58] Speaker 1: our Bloomberg Law pop. You can find them on Apple Podcasts, Spotify,
[38:03] Speaker 1: and at www dot Bloomberg dot com, slash podcast, Slash Law,
[38:08] Speaker 1: And remember to tune into The Bloomberg Law Show every
[38:11] Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso
[38:15] Speaker 1: and you're listening to Bloomberg

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