# Weekend Law: Powell Probe Dropped, SCOTUS & Religion in Schools

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 26 Apr 2026, 37 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/6b2dc8e9-1cea-4a08-a21c-b4380156533d/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Elliott Stein, Bloomberg Intelligence senior litigation analyst, discusses the DC US Attorney, Jeanine Pirro, dropping the investigation into Fed Chair Jerome Powell. Then constitutional law expert Harold Krent, a professor at the Chicago-Kent College of Law, discusses the leak of Supreme Court memos. And First Amendment expert Caroline Mala Corbin, a professor at the University of Miami Law School, discusses the Fifth Circuit ruling that schools can be forced to post the Ten Commandments in classrooms. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:03] Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
[0:09] Speaker 2: About a month ago, the US Attorney for DC, Janine Pierro,
[0:13] Speaker 2: professed that she didn't care that Senator Tom Tillis was
[0:17] Speaker 2: opposing her controversial criminal investigation into Federal Reserve Chair Jerome Powell.
[0:23] Speaker 2: She was moving forward.
[0:25] Speaker 3: You know, honestly, I don't know, and I don't care.
[0:28] Speaker 3: And I'll tell you why. I am in a legal lane.
[0:33] Speaker 3: All of the rest is white noise. I don't care
[0:36] Speaker 3: what they say. I have a job. I have the
[0:41] Speaker 3: ability to go into a grand jury. There are questions
[0:44] Speaker 3: that the American public and people in DC are entitled
[0:48] Speaker 3: to know where a billion dollars has gone.
[0:51] Speaker 2: And on Wednesday, Piero doubled down and again vowed to
[0:55] Speaker 2: continue the investigation into building renovation cost over by the FED,
[1:01] Speaker 2: and to appeal a judge's order quashing her two grand
[1:05] Speaker 2: jury subpoenas.
[1:06] Speaker 4: This investigation continues.
[1:09] Speaker 3: I am in the legal lane.
[1:10] Speaker 4: There are others who are in the political lane. I
[1:13] Speaker 4: don't intersect those two lanes.
[1:16] Speaker 3: I am going forward.
[1:17] Speaker 4: We are appealing the decision of Judge Bosburg.
[1:21] Speaker 2: But then on Friday, in a stunning reversal. Pierro said
[1:25] Speaker 2: in a social media post that her office was closing
[1:28] Speaker 2: the investigation on Powell, but that quote this morning, the
[1:33] Speaker 2: Inspector General for the Federal Reserve has been asked to
[1:36] Speaker 2: scrutinize the building costs overruns. In fact, the IG's investigation
[1:42] Speaker 2: began last year. Does the end of Piero's investigation clear
[1:47] Speaker 2: the way for the confirmation of Kevin Walsh as FED chair?
[1:51] Speaker 2: Even though Piero added in her post quote note well, however,
[1:56] Speaker 2: that I will not hesitate to restart a criminal investigation
[2:00] Speaker 2: should the facts warn't doing so. Joining me is Elliott
[2:04] Speaker 2: Stein Bloomberg Intelligence Senior litigation analyst, Elliott What do you
[2:09] Speaker 2: make of Piro's abrupt reversal. Is it due to the
[2:13] Speaker 2: lack of evidence or pressure to clear the way for
[2:16] Speaker 2: Walsh's confirmation?
[2:18] Speaker 1: Probably a combination. I mean, you know, the whole point
[2:22] Speaker 1: of Judge Bosberg's opinion quashing the subpoenas was that, you know,
[2:25] Speaker 1: there's very little evidence of a crime versus a lot
[2:28] Speaker 1: of evidence, that this is all a pretext to go
[2:30] Speaker 1: after Powell for nonlawering interest rates. But then you also
[2:34] Speaker 1: have this whole Senator Tillis dynamic, and he has been
[2:38] Speaker 1: very forceful in saying that he's not going to allow
[2:41] Speaker 1: Warsh to be confirmed until the investigation is wrapped up.
[2:45] Speaker 1: And you know, they're coming up on May fifteenth deadline,
[2:49] Speaker 1: which is when Chair Powell's term ends as Federal Reserve Chair,
[2:55] Speaker 1: and so I think they want to move things along.
[2:57] Speaker 1: They want to get Warsh in there, and this is
[3:00] Speaker 1: sort of the quickest path to doing that. Although you know,
[3:04] Speaker 1: Jenny and Piro did leave an opening for opening the
[3:07] Speaker 1: investigation down the road. So it's unclear right now if
[3:11] Speaker 1: this is going to be enough for Senator Tillis. I
[3:14] Speaker 1: suspect it probably is, But if I'm Jerome Powell, I
[3:18] Speaker 1: would want a little more assurance in the form of
[3:20] Speaker 1: perhaps an immunity agreement of some sort.
[3:23] Speaker 2: Piero appeared to be trying to gloss over the implications
[3:27] Speaker 2: of dropping the investigation by saying that the Inspector General
[3:31] Speaker 2: was now going to be the one scrutinizing the cost
[3:34] Speaker 2: overruns end quote. I expect a comprehensive report in short
[3:39] Speaker 2: order and am confident the outcome will assist in resolving
[3:44] Speaker 2: once and for all the questions that led this office
[3:47] Speaker 2: to issue subpoenas, but in fact, the IG has already
[3:51] Speaker 2: reviewed the project twice and started another review last year
[3:55] Speaker 2: because Powell had requested it. So does this seem like
[3:59] Speaker 2: sort of a dead end, right?
[4:02] Speaker 1: But yeah, I mean it was sort of where we
[4:04] Speaker 1: were before the investigation started, right that it's still with
[4:07] Speaker 1: the Inspector General and that's what they do. And you know,
[4:11] Speaker 1: it sounds like Jennine Piro is sort of trying to
[4:15] Speaker 1: appease two camps here right on the ones, she obviously
[4:18] Speaker 1: reports to President Trump, who has been adamant about going
[4:22] Speaker 1: after Jerome Powell for several years now, and he wants
[4:24] Speaker 1: him out of the board completely. On the other hand,
[4:27] Speaker 1: she needs to satisfy Senator Tillis, who has said, you know,
[4:31] Speaker 1: he's going to block the confirmation of Kevin Warrish until
[4:34] Speaker 1: the investigation is wrapped up. So you know, her tweet
[4:37] Speaker 1: sort of seems to try to navigate right through both
[4:40] Speaker 1: those sides in that narrow passageway, and we'll see if
[4:43] Speaker 1: it's enough. I don't think we've heard anything from Senator
[4:45] Speaker 1: Tillis yet, but I suspect maybe we will soon.
[4:47] Speaker 2: Let's back up for a moment, Elliott, what is she
[4:50] Speaker 2: investigating the cost overruns and possible perjury by Powell.
[4:56] Speaker 1: Right, those are the two things. I think the testimony
[5:00] Speaker 1: to me sort of seemed to be more of the
[5:02] Speaker 1: impetus for her investigation, because the Inspector General is already
[5:06] Speaker 1: investigating the cost overruns for one. And you know, they
[5:10] Speaker 1: tried to accuse Powell of essentially lying in his testimony
[5:15] Speaker 1: to the Senate last summer. But you know, it seemed
[5:19] Speaker 1: very nitpicky and sort of a matter of semantics. Nothing.
[5:23] Speaker 1: Approaching a federal crime.
[5:25] Speaker 2: And proving perjury is not easy. You have to prove
[5:28] Speaker 2: that someone knowingly and willfully made a false statement under
[5:33] Speaker 2: oath about a material matter.
[5:35] Speaker 1: Yeah, it's very hard to prove intent in one of
[5:38] Speaker 1: these types of cases.
[5:39] Speaker 2: And we know that as late as a month ago,
[5:42] Speaker 2: Piro's office essentially had no evidence that Powell had committed
[5:47] Speaker 2: a crime because during a closed door hearing with Judge Boseburg,
[5:52] Speaker 2: the judge who quashed their subpoenas, they acknowledged they had
[5:56] Speaker 2: no evidence but said they wanted to go ahead with
[5:59] Speaker 2: the investigation anyway.
[6:01] Speaker 1: Right, I mean, you know, in most cases that's sort
[6:05] Speaker 1: of the purpose for the subpoena, right when you don't
[6:08] Speaker 1: have all these other things going on that suggests it's
[6:11] Speaker 1: a pretext.
[6:12] Speaker 4: Right.
[6:12] Speaker 1: If you have, you know, reasonable suspicion or probable cause
[6:16] Speaker 1: that a crime was committed, then you issue subpoenas to
[6:19] Speaker 1: develop the evidence further. But yet to your point, the
[6:23] Speaker 1: judge found, you know, not only is there no evidence yet,
[6:26] Speaker 1: and not only did the Justice Department concede that you
[6:29] Speaker 1: have to balance that with the other side of the
[6:33] Speaker 1: equation that the subpoenas were issued for the purpose of
[6:35] Speaker 1: harassing your own Powell because he's not lowering interest rates
[6:39] Speaker 1: fast enough. And the evidence of that was overwhelming, according
[6:43] Speaker 1: to the judge.
[6:44] Speaker 2: Yeah, Judge Boseburg said there was no evidence whatsoever that
[6:48] Speaker 2: Powell had committed any crime, but there was a mountain
[6:51] Speaker 2: of evidence that the investigation was intended to pressure Powell
[6:56] Speaker 2: to lower rates or resign. And this isn't the first
[6:59] Speaker 2: time that Ziro's office has had trouble moving forward on
[7:03] Speaker 2: an indictment. Several times DC grand juries have refused to indict,
[7:08] Speaker 2: disproving the old adage that a prosecutor can get a
[7:12] Speaker 2: grand jury to indict a ham sandwich. They couldn't get
[7:15] Speaker 2: a grand jury to indict the guy who threw the
[7:18] Speaker 2: salami sandwich at an officer. And there are other instances,
[7:23] Speaker 2: including a federal grand jury unanimously rejecting charges against six
[7:29] Speaker 2: members of Congress for making that video reminding the military
[7:33] Speaker 2: that they don't have to follow illegal.
[7:35] Speaker 1: Orders, right, And it's not just her in DC, I
[7:39] Speaker 1: think it was also in the Eastern District of Virginia.
[7:41] Speaker 1: You had subpoenas issued and investigations opened against Tisha James
[7:46] Speaker 1: James Comey. Those were also essentially quest or the grand
[7:52] Speaker 1: jury's refused to indict. And you know this case too
[7:56] Speaker 1: against their own Powell. If it had proceeded, it looked
[7:59] Speaker 1: like it was on a to also not lead to
[8:02] Speaker 1: an indictment. So it does seem that, you know, they
[8:05] Speaker 1: are bringing weak cases. They're obviously going after President Trump's
[8:11] Speaker 1: perceived political enemies, and you know, if that's a justification,
[8:16] Speaker 1: it's an explanation for why there's not evidence of a crime.
[8:20] Speaker 2: What also strikes me about this is that Piero dropped
[8:24] Speaker 2: the investigation by social media post, but she held a
[8:29] Speaker 2: press conference to announce that Judge Bosberg had quashed the subpoenas.
[8:34] Speaker 2: A lost Many people would not want to broadcast.
[8:37] Speaker 1: I remember watching that press conference, and at the time
[8:40] Speaker 1: it really felt very performative. It felt like she was defensive,
[8:44] Speaker 1: and you know, I'm sure some of it was knowing
[8:48] Speaker 1: that President Trump was watching and that she wanted him
[8:51] Speaker 1: to know that she was continuing to pursue this case
[8:55] Speaker 1: aggressively against Jerome Powell, who the President you know, is
[8:59] Speaker 1: not happy with, hasn't been happy with for a while.
[9:01] Speaker 1: But what's interesting is they filed a motion to reconsider
[9:05] Speaker 1: that opinion. They lost that on April third. They haven't
[9:10] Speaker 1: appealed those decisions to the DC's circuit at all, and
[9:14] Speaker 1: you would think that if they really wanted to move
[9:17] Speaker 1: the case along and continue to prosecute it, they would
[9:20] Speaker 1: have done that. We haven't seen that. The deadline is
[9:24] Speaker 1: two months from that April third date where the motion
[9:26] Speaker 1: to reconsider was denied. I mean, they do have until
[9:29] Speaker 1: June third. Obviously, we don't expect that to happen now
[9:32] Speaker 1: that they're dropping the probe, but it may be a
[9:34] Speaker 1: date that gives Jerome Powell some comfort. If it comes
[9:38] Speaker 1: and goes and it results in no appeal being filed,
[9:41] Speaker 1: it may give him some comfort that the investigation really
[9:44] Speaker 1: is being dropped. Because they're not going to be able
[9:47] Speaker 1: to really revive those subpoenas. I suppose in theory they
[9:50] Speaker 1: could issue new subpoenas that cover different subject matter and
[9:54] Speaker 1: different terrain, but it's hard to envision what that looks like.
[9:57] Speaker 1: But I mean, the real question of people that you
[10:01] Speaker 1: really need to get inside the heads of at this
[10:03] Speaker 1: point right now are Senator Tillis and her own Powell
[10:06] Speaker 1: and whether Janin Piro's tweets are enough to give them
[10:10] Speaker 1: assurance that the investigation is not going to be relaunched
[10:14] Speaker 1: at some point down the road after Kevin Watris gets
[10:17] Speaker 1: confirmed in the coming weeks.
[10:18] Speaker 2: And in other FED news, we are still waiting for
[10:22] Speaker 2: the Supreme Court's decision on President Trump's attempts to fire
[10:27] Speaker 2: Fed Reserve Governor Lisa Cook over unproven mortgage fraud allegations.
[10:33] Speaker 2: Those oral arguments were in January, and every time there's
[10:36] Speaker 2: an announcement of decisions by the Supreme Court, we keep
[10:40] Speaker 2: expecting that the Cook decision will be among them.
[10:44] Speaker 1: Yeah, exactly. I was on the soccer fields down in
[10:45] Speaker 1: North Carolina this last Friday at ten am when it
[10:48] Speaker 1: was a Supreme colurid opinion date, and I have one
[10:51] Speaker 1: eye on my daughter plan I have one eye on
[10:52] Speaker 1: my phone, and I was just so relieved when it
[10:55] Speaker 1: was not that decision. I think one of the reasons
[10:58] Speaker 1: that may be taking longer than people anticipated is that
[11:02] Speaker 1: it's sort of wrapped up with the Slaughter case Rebecca
[11:06] Speaker 1: Slaughter if he recalls the FTC commissioner who also challenged
[11:09] Speaker 1: her termination, and the cases are all sort of wrapped
[11:12] Speaker 1: up together because the Supreme Court has indicated that even
[11:16] Speaker 1: though the President likely has the authority to remove most
[11:21] Speaker 1: agency commissioners at will, and that four cause removal restrictions
[11:25] Speaker 1: as to them is unconstitutional, the Federal Reserve is situated
[11:29] Speaker 1: differently because it's sort of quasi private. It's not really
[11:32] Speaker 1: part of the executive branch. And as a result, the
[11:34] Speaker 1: four cause removal restriction in the Federal Reserve Act is
[11:37] Speaker 1: likely constitutional. The only question is what does it actually entail.
[11:41] Speaker 2: Maybe next Supreme Court opinion day, the Cook decision will
[11:44] Speaker 2: come out. Thanks so much for joining me today, Elliott.
[11:47] Speaker 2: That's Bloomberg Intelligence Senior litigation analyst Elliott Stein coming up next,
[11:53] Speaker 2: Revelations from behind the Curtain at the Supreme Court. I'm
[11:56] Speaker 2: June Grosso and this is Bloomberg. Chief Justice John Roberts
[12:03] Speaker 2: has long cultivated an image of the Supreme Court as
[12:07] Speaker 2: an institution above politics, nine justices who reached their decisions
[12:13] Speaker 2: based on the law alone.
[12:15] Speaker 5: Well, I think the important thing to understand is that
[12:18] Speaker 5: there are three branches of government, and two of them
[12:20] Speaker 5: are political.
[12:21] Speaker 6: And if you don't like.
[12:22] Speaker 5: What the Congress is doing, you're congressman. You can throw
[12:25] Speaker 5: them out of office. If you don't like what the
[12:27] Speaker 5: president is doing, can throw him out of office. If
[12:30] Speaker 5: you don't like what I'm doing, it's just too bad.
[12:33] Speaker 6: And now most people would.
[12:35] Speaker 5: Say, how can that be? You do the cases are
[12:39] Speaker 5: pretty important and you need to understand. Well, it's because
[12:41] Speaker 5: the Framers didn't want the courts to be making political decisions.
[12:45] Speaker 2: And Roberts famously compare justices to umpires at his confirmation
[12:51] Speaker 2: hearings more than twenty years ago.
[12:53] Speaker 6: Judges are like umpires. Umpires don't make the rules, they
[12:57] Speaker 6: apply them. The role of an and a judge is critical.
[13:02] Speaker 6: They make sure everybody plays by the rules, but it
[13:06] Speaker 6: is a limited role. Nobody ever went to a ballgame
[13:09] Speaker 6: to see the umpire, but.
[13:11] Speaker 2: The New York Times has published leaked confidential memos between
[13:15] Speaker 2: the justices, and they reveal a very different side of Roberts,
[13:20] Speaker 2: certainly not an umpire calling balls and strikes, but rather
[13:25] Speaker 2: the driving force to block President Obama's signature environmental policy,
[13:31] Speaker 2: pushing the decision through in just five days, without oral arguments,
[13:36] Speaker 2: without briefings, and without input from lower court decisions. Why
[13:41] Speaker 2: because Obama's power plan, in Robert's words, was quote the
[13:46] Speaker 2: most expensive regulation ever imposed on the power sector. And
[13:51] Speaker 2: so on February ninth of twenty sixteen, in a five
[13:55] Speaker 2: to four vote along partisan lines, the Justice Is issued
[13:59] Speaker 2: a one pack paragraph ruling halting Obama's Clean Power Plan.
[14:04] Speaker 2: It was just the beginning of the Court's emergency or
[14:07] Speaker 2: shadow docket that has been repeatedly used to move President
[14:12] Speaker 2: Trump's agenda forward. My guest is an expert in constitutional law,
[14:17] Speaker 2: Harold Krant, a professor at the Chicago Kent College of Law.
[14:21] Speaker 2: How So, The New York Times has published these until
[14:24] Speaker 2: now secret memos about the five days before the Supreme
[14:28] Speaker 2: Court issued an order blocking President Obama's Clean Power Plan.
[14:34] Speaker 2: Tell us what happened.
[14:36] Speaker 7: So, the Court never blocked the power plant on the merits,
[14:40] Speaker 7: but rather used its power to stop the action before
[14:44] Speaker 7: they could even hear the case, and so they deployed
[14:47] Speaker 7: their power to basically protect individuals in the United States
[14:52] Speaker 7: from what they saw is overreaching by the Obama administration.
[14:56] Speaker 4: So this is an.
[14:57] Speaker 7: Overtly political move because they didn't like the power plan,
[15:01] Speaker 7: and the memos evinced the fact that they thought that
[15:04] Speaker 7: there shouldn't be this much of a drain on the
[15:08] Speaker 7: economy in order to protect the environment. And so the
[15:13] Speaker 7: way it reads is that the Supreme Court was overtly
[15:16] Speaker 7: political in deciding to resolve this case not on the merits,
[15:20] Speaker 7: but rather simply on the basis of its emergency docket,
[15:25] Speaker 7: thereby stopping the plant before it could be effectuated.
[15:28] Speaker 2: So this was pushed through in five days, and some
[15:32] Speaker 2: of the justices were in Europe, so it was all
[15:35] Speaker 2: done by exchanging memos. And from your reading of those memos,
[15:41] Speaker 2: did it seem like the Chief Justice was the one
[15:44] Speaker 2: really pushing it through.
[15:46] Speaker 7: And what astonishes me is that we know that for
[15:49] Speaker 7: years the Chief Justice stood and said, integrity of the
[15:53] Speaker 7: Court is my mission. This is the most important thing
[15:55] Speaker 7: to me. So we have stature. Yet it was the
[15:58] Speaker 7: Chief who decided to use the power of the Supreme
[16:01] Speaker 7: Court to try to attain his political ends. So this,
[16:05] Speaker 7: to me is what is so amazing, is that while
[16:08] Speaker 7: the Chief seemed to have this public persona of respect
[16:12] Speaker 7: and integrity of the court, he was the one that
[16:14] Speaker 7: instigated the unorthodox use of the court in order to
[16:19] Speaker 7: accomplish a political result.
[16:21] Speaker 2: Did it seem as if some of the justices didn't recognize,
[16:26] Speaker 2: you know, the importance of what was happening here.
[16:28] Speaker 7: In retrospect, I think we can all tell this is
[16:30] Speaker 7: the start of the aggressive use by the Rabbers Court
[16:33] Speaker 7: of the shadow docket. But the justices at the time
[16:36] Speaker 7: didn't know that. They thought maybe this is a one off.
[16:39] Speaker 7: That the Court was not in session. They were in
[16:42] Speaker 7: various places around the world, and so they could have
[16:45] Speaker 7: said this is a one off, a unique response that
[16:49] Speaker 7: wouldn't create any kind of precedent.
[16:51] Speaker 4: That's what it seemed to me from reading the memos.
[16:53] Speaker 7: Obviously, now with the lens of history, we look back
[16:56] Speaker 7: and say we can see a linear progression. The use
[16:59] Speaker 7: of the power the Supreme Court from various political ends
[17:02] Speaker 7: has become much more common, but at that time it
[17:05] Speaker 7: was rare, and I don't think the justices realized what
[17:08] Speaker 7: a precedent this could create.
[17:10] Speaker 2: So the Chief Justice said that this was the most
[17:14] Speaker 2: expensive regulation ever imposed on the power sector, too big, costly,
[17:19] Speaker 2: and consequential for the Court not to act immediately. Yet
[17:22] Speaker 2: no justice, not a liberal, not a conservative, ever mentioned
[17:27] Speaker 2: the dangers on the opposite side of climate change.
[17:31] Speaker 4: There's no discussion of climate change.
[17:32] Speaker 7: There was no discussion of letting the challenges to the
[17:35] Speaker 7: regulation play out in court. This wasn't a discussion of
[17:39] Speaker 7: the usual legality of an administrative action. This was a
[17:44] Speaker 7: political reaction to the Obama administration saying this is too extensive,
[17:50] Speaker 7: too much, and no consideration of the equities on the
[17:53] Speaker 7: other side.
[17:54] Speaker 4: It's astonishing, the irony.
[17:56] Speaker 2: So Justice Kennedy figures that, you know, well, when we
[18:00] Speaker 2: take us on the merits docket, it's going to end
[18:02] Speaker 2: up being struck down anyway. But then Justice Scalia passed away,
[18:07] Speaker 2: and so the vote on the power Plan would most
[18:11] Speaker 2: likely have been four four, and so Obama's power Plan
[18:15] Speaker 2: would have gone into effect.
[18:18] Speaker 7: Likely obviously we don't know, because we're deprived of that
[18:20] Speaker 7: knowledge because of how history played out.
[18:23] Speaker 4: The other thing that's amazing about this is.
[18:25] Speaker 7: Why the leak, Now you know, is this a leak
[18:28] Speaker 7: from clerks who have orded this material for ten years.
[18:33] Speaker 7: Is this a leak from the Supreme Court justice that's
[18:36] Speaker 7: more and more frustrated with how the Court is acting.
[18:40] Speaker 7: We don't know, but it certainly suggests that tensions are
[18:44] Speaker 7: aflame within the Supreme Court building.
[18:47] Speaker 2: Well, we've seen that with the various justices. I mean,
[18:50] Speaker 2: we saw Sodo Mayor criticizing Kavanaugh and then coming out
[18:54] Speaker 2: with an apology. We saw Jackson and Kavanaugh quibbling about
[18:59] Speaker 2: the shadow in a public appearance, and Jackson giving an
[19:03] Speaker 2: hour long speech at Yale Law School basically taking the
[19:07] Speaker 2: shadow docket apart and criticizing it. So it seems like
[19:12] Speaker 2: the tensions are pretty much out in the open.
[19:16] Speaker 1: Yeah.
[19:16] Speaker 7: And this idea of, you know, the friendship between RBG
[19:20] Speaker 7: and Justice Scalia is you know, a thing of the
[19:22] Speaker 7: distant past. And obviously these justices don't like each other.
[19:26] Speaker 7: They're sniping at each other, and now they're arguably possibly
[19:30] Speaker 7: making leads. So we don't have a very unified or
[19:32] Speaker 7: collegial court.
[19:33] Speaker 2: I've asked you often in the past, how much are
[19:35] Speaker 2: the justices influenced by public discussions of the issues, public discourse,
[19:41] Speaker 2: And here they're relying on outside sources like a blog
[19:45] Speaker 2: post and television interviews to push their points.
[19:49] Speaker 7: We try to teach our students, you know, the Supreme
[19:52] Speaker 7: Court justices consider they deliberate, they're influenced by their predecessors.
[19:58] Speaker 7: They try to understand the integer of the legal process.
[20:02] Speaker 7: And then we're confronted by these memos, the disparate memos
[20:07] Speaker 7: that seem to suggest, oh, it's all about politics and
[20:09] Speaker 7: our knee jerk reaction to what we think is dangerous
[20:13] Speaker 7: for politics. So they're acting as politicians. So what then
[20:17] Speaker 7: differentiates the Court from the other institutions is getting a
[20:21] Speaker 7: little moneier here, And I think that's the real downside
[20:25] Speaker 7: of what they've done, is to sap the Supreme Court
[20:28] Speaker 7: of the respect that it should otherwise deserve in our
[20:32] Speaker 7: part time system.
[20:33] Speaker 2: Yeah, and how many times have we heard the Chief
[20:36] Speaker 2: Justice talk about the Supreme Court is not a political institution.
[20:41] Speaker 2: We're different from the political branches. And here it's all
[20:45] Speaker 2: about politics.
[20:46] Speaker 4: It is.
[20:47] Speaker 7: And again I can understand why people are disillusioned, because
[20:51] Speaker 7: if the Court is thinking about politics, you know, what
[20:54] Speaker 7: gives them the advantage as opposed to those in Congress.
[20:58] Speaker 2: Was this in any sense? Hence President Obama versus Chief
[21:03] Speaker 2: Justice Roberts, because I mean Obama was one of just
[21:07] Speaker 2: twenty two Senators who voted against roberts confirmation, and here
[21:11] Speaker 2: it seems like the Chief Justice is eager to assert
[21:16] Speaker 2: the authority of the Supreme Court against Obama.
[21:20] Speaker 7: I don't know how much of this is reaction to
[21:23] Speaker 7: the friction between Chief Justice Roberts and President Obama. I
[21:27] Speaker 7: think it's more about President Obama's policies that he just
[21:30] Speaker 7: thought that the Democrat was wrongheaded in trying to sort
[21:35] Speaker 7: of quickly change the ground in terms of climate change
[21:39] Speaker 7: and limiting pollution, and saw his responsibility as the Court
[21:45] Speaker 7: to do something about the rapid change that was at
[21:49] Speaker 7: play within the Environmental Protection Agency.
[21:52] Speaker 2: Do you think that there'll be any fallout from this
[21:55] Speaker 2: publication of these notes.
[21:57] Speaker 7: Well, we saw that the first Jobs decison, if you remember,
[22:01] Speaker 7: was released by someone, and we knew what the top
[22:04] Speaker 7: decision was going to say overruling their right to an abortion,
[22:08] Speaker 7: and tighter security was imposed, but nothing really happened. Again,
[22:11] Speaker 7: we don't know if the leak is from now or
[22:13] Speaker 7: from ten years ago. There may be some more security,
[22:16] Speaker 7: but I think now in this age, there won't be
[22:20] Speaker 7: too many more steps that can be undertaken by the
[22:22] Speaker 7: Court to prevent this kind of leaking. But the leaking
[22:26] Speaker 7: isn't good for the court. Clearly, this is a court
[22:30] Speaker 7: that has lost its civility but also its ability to
[22:35] Speaker 7: be collegial.
[22:35] Speaker 2: And also I'm wondering if, since now we have this
[22:39] Speaker 2: huge leak you mentioned the leak before, whether the justices
[22:43] Speaker 2: will be more reluctant to put things into writing that
[22:46] Speaker 2: can be leaked.
[22:48] Speaker 4: Oh.
[22:48] Speaker 7: Absolutely, I think that if you know that your rough
[22:51] Speaker 7: draft in your comments, Snyder or otherwise may end up
[22:55] Speaker 7: in the New York Times, you're going to think twice
[22:57] Speaker 7: before you write that down. And that's also not good
[23:00] Speaker 7: the court. Right, Sometimes it's really important to have a
[23:02] Speaker 7: sharply worded memo, some kind of comments about the wisdom
[23:06] Speaker 7: of a particular argument that another justice may write, and
[23:10] Speaker 7: the justices will be more restrained in showing candor for
[23:14] Speaker 7: fear of the disclosure.
[23:15] Speaker 2: And hell, I want to get your reaction to this
[23:17] Speaker 2: speech by Justice Thomas, ostensibly to commemorate the two hundred
[23:22] Speaker 2: and fiftieth anniversary of the Declaration of Independence, but it
[23:26] Speaker 2: devolved into an attack on progressivism.
[23:30] Speaker 6: Progressivism seeks to replace the basic premises of the Declaration
[23:35] Speaker 6: of Independence and hence our form of government.
[23:39] Speaker 2: Thomas said that Stalin, Hitler, Mussolini, and Mao were all
[23:44] Speaker 2: intertwined with the rise of progressivism, as was racial segregation, eugenics,
[23:50] Speaker 2: and other evils.
[23:52] Speaker 7: I do think there's a tie here, both with the
[23:55] Speaker 7: Roberts decision and with Thomas. There is such a deep
[23:59] Speaker 7: seated hatred for the administrative state and Justice Thomas calls
[24:03] Speaker 7: it progressivism. What he's talking about is this idea of
[24:06] Speaker 7: these experts and government, and both Chief Justice Roberts and
[24:11] Speaker 7: Justice Thomas sort of events a real distrust for anybody
[24:15] Speaker 7: who believes in bureaucratic government, anybody who relies on the
[24:19] Speaker 7: government to actually respond to our nation's woes and to
[24:24] Speaker 7: try to help up the country.
[24:26] Speaker 2: Well, the Roberts Court's attacks on the administrative state have
[24:29] Speaker 2: been pretty clear, Thanks Hal. That's Professor Harold Krant to
[24:33] Speaker 2: the Chicago Kent College of Law coming up next, and
[24:36] Speaker 2: Appellate Court rules it's okay to force schools to post
[24:40] Speaker 2: the Ten Commandments in classrooms. I'm June Grosso and you're
[24:43] Speaker 2: listening to Bloomberg. President Trump cheered laws requiring the Ten
[24:50] Speaker 2: Commandments to be displayed in schools. While speaking to a
[24:53] Speaker 2: group of evangelical Christians as he campaigned in twenty twenty four.
[24:58] Speaker 7: Who likes the Ten Commandment by the way going up
[25:00] Speaker 7: in the school. They think it's such a bad thing,
[25:06] Speaker 7: I said, Has anyone read the thou shalt not steal?
[25:10] Speaker 2: Thou shalt?
[25:11] Speaker 1: I mean, has anybody read this incredible stuff?
[25:15] Speaker 4: It's just incredible.
[25:16] Speaker 1: They don't want it to go up.
[25:17] Speaker 2: And Now, in a significant win for conservatives who've been
[25:21] Speaker 2: trying to inject more religion into classrooms, the Fifth Circuit
[25:26] Speaker 2: Court of Appeals has ruled that Texas can force public
[25:29] Speaker 2: schools to display the Ten Commandments in classrooms. A nine
[25:34] Speaker 2: to eight decision of the Full Appellate Court, considered the
[25:37] Speaker 2: most conservative circuit court in the country, found that the
[25:41] Speaker 2: Texas law doesn't violate the separation of church and state.
[25:45] Speaker 2: Challenges of the law had argued that displaying the Ten
[25:48] Speaker 2: Commandments in classrooms amounts to proselytizing and violates the rights
[25:53] Speaker 2: of parents to decide when, how and if to provide
[25:57] Speaker 2: religious instruction to their children. Case is expected to end
[26:01] Speaker 2: up at the Supreme Court, where the conservative majority has
[26:05] Speaker 2: steadily been expanding religious rights. My guest is an expert
[26:09] Speaker 2: in the First Amendment, Caroline Malacorbin, a professor at the
[26:13] Speaker 2: University of Miami Law School. Caroline, to put this case
[26:17] Speaker 2: into context, tell us about the Texas law and Supreme
[26:20] Speaker 2: Court precedent.
[26:22] Speaker 8: The Texas law is pretty straightforward. It basically required that
[26:27] Speaker 8: in every single public school classroom there had to be
[26:32] Speaker 8: a Ten Commandments poster. It had to be sufficiently large,
[26:37] Speaker 8: easy to read, easy to see, there couldn't be anything
[26:40] Speaker 8: else around it, and they dictated the particular version of
[26:44] Speaker 8: the Ten Commandments. Now, it's not surprising that this mandatory
[26:48] Speaker 8: scripture on the wall triggered an Establishment Clause violation. The
[26:52] Speaker 8: Establishment Clause, of course, is that part of the First
[26:56] Speaker 8: Amendment of the US Constitution, which required some separation between
[27:00] Speaker 8: church and state. Texas was not the first state to
[27:04] Speaker 8: mandate Ten Commandments in the public schools. Kentucky had tried
[27:08] Speaker 8: the same thing about forty five years ago, and the
[27:10] Speaker 8: Supreme Court had already made a decision about it in
[27:14] Speaker 8: a case known as Stone v.
[27:15] Speaker 1: Graham.
[27:16] Speaker 8: The Supreme Court held, this is a blatant violation of
[27:20] Speaker 8: the Establishment Clause. There is no secular purpose for mandating
[27:25] Speaker 8: biblical texts on schoolroom walls when you're not even incorporating
[27:30] Speaker 8: it into any kind of secular education, it is unconstitutional.
[27:35] Speaker 8: So there is a case directly on point that holds
[27:38] Speaker 8: this kind of law violates the Establishment Clause. Unfortunately, the
[27:43] Speaker 8: precedent doesn't stop there, because the Roberts Court has been
[27:47] Speaker 8: very busy trying to dismantle protections of the Establishment Clause.
[27:52] Speaker 8: And one way it's been doing that is by rejecting
[27:57] Speaker 8: earlier tests that the Supreme Court has relied on. And
[28:01] Speaker 8: the doctrine that was part of the decision in the
[28:05] Speaker 8: earlier ten Commandment's case was something known as the Lemon test,
[28:09] Speaker 8: and the Lemon test said, listen, you're violating the Establishment
[28:12] Speaker 8: Clause if your law doesn't have a primarily secular purpose
[28:16] Speaker 8: or it doesn't have a primarily secular effect. And the
[28:20] Speaker 8: Roberts Court has said, this is no longer the test
[28:24] Speaker 8: we're going to use in the Establishment Clause. Instead, the
[28:29] Speaker 8: touchstone for an Establishment Clause analysis is to look to
[28:33] Speaker 8: history and original understandings, and so this is what faced
[28:38] Speaker 8: the Fifth Circuit Court of Appeals.
[28:41] Speaker 2: Only the Supreme Court can overturn its own precedent, So
[28:45] Speaker 2: isn't strong. The Gram still the precedent.
[28:49] Speaker 8: Now, the courts below had said, listen, there's still a
[28:53] Speaker 8: Supreme Court case that's directly on point. It has not
[28:56] Speaker 8: been explicitly overruled, and therefore it still controls, and therefore
[29:02] Speaker 8: this is not a difficult case. The Fifth Circuit, on
[29:06] Speaker 8: the other hand, argued the precedent depended on a test
[29:11] Speaker 8: that has since been rejected, and not only did it
[29:15] Speaker 8: reject Stone free Gram as controlling precedent, it interpreted the
[29:21] Speaker 8: Supreme Court guidance to look to history and understanding in
[29:27] Speaker 8: a very narrow way. It basically adapted a concurrence from
[29:32] Speaker 8: Gorsuch that said, and this is the Fifth Circuit's new
[29:36] Speaker 8: rule for establishment clause challenges is if this does not
[29:40] Speaker 8: resemble something the original founders would consider a religious establishment,
[29:47] Speaker 8: then it doesn't violate the establishment clause. And there was
[29:50] Speaker 8: a short.
[29:51] Speaker 1: List of things.
[29:52] Speaker 8: It said, these are the things that the founders thought
[29:55] Speaker 8: was a religious establishment, and this does not resemble any
[29:58] Speaker 8: of them, and their it doesn't violate the adoption clause.
[30:04] Speaker 8: So that's what it held. It rejected the Supreme Court's
[30:08] Speaker 8: existing precedent. It interpreted the Supreme Court's turned to history
[30:13] Speaker 8: in a very particular narrow way and said this does
[30:17] Speaker 8: not resemble something that was an establishment at the time
[30:20] Speaker 8: of her country's origins, and therefore no problem whatsoever to
[30:27] Speaker 8: have a Protestant version of the Ten Commandments on every
[30:31] Speaker 8: single classroom in every single public school in Texas, regardless
[30:36] Speaker 8: of whether it's the science lab or the library, or
[30:39] Speaker 8: the music room or your English class Caroline.
[30:41] Speaker 2: What also struck me is that there was that Supreme
[30:44] Speaker 2: Court case my Mood that you and I discussed at
[30:47] Speaker 2: the time, saying that parents could opt their children out
[30:52] Speaker 2: of LGBTQ material that contradicted their religious beliefs, and tire
[30:57] Speaker 2: the Fifth Circuit said, the measure doesn't strict parents' right
[31:01] Speaker 2: to direct their children's religious upbringing. I mean, how do
[31:04] Speaker 2: they possibly distinguish that case.
[31:06] Speaker 8: So this is the case involving picture books with lgbt
[31:11] Speaker 8: characters in them that were part of the English curriculum
[31:15] Speaker 8: in some public schools, and some conservative religious folks claimed
[31:20] Speaker 8: that having their children hear these stories about same sex
[31:25] Speaker 8: marriage when that same sex marriage was not condemned, violated
[31:30] Speaker 8: their religious rights and therefore they had a free exercise
[31:35] Speaker 8: right to opt their children out of hearing their stories,
[31:38] Speaker 8: and the Supreme Court, always sympathetic to very conservative Christian concerns,
[31:44] Speaker 8: said absolutely, it's a violation of your free exercise rights
[31:48] Speaker 8: for your child to be exposed to same sex marriages
[31:53] Speaker 8: in a positive way, because that's contrary to your anti
[31:56] Speaker 8: same sex marriage beliefs, and you are out to opt out.
[32:00] Speaker 8: Is in this in even more direct affront to non
[32:04] Speaker 8: adherence beliefs, to be presented with the Ten Commandments everywhere
[32:10] Speaker 8: they turned, which is contrary to their own beliefs. Like
[32:13] Speaker 8: the clashes. Just like the same sex marriage clashes with
[32:17] Speaker 8: my beliefs, the Ten Commandment clashes even more directly because
[32:21] Speaker 8: they're religious, and surely the Mood case would support the
[32:27] Speaker 8: approach to the Ten Commandments as something problematic and something
[32:31] Speaker 8: that should not be allowed. The Fifth Circuit distinguished it
[32:34] Speaker 8: in two ways. They exaggerated the harm to the parents
[32:39] Speaker 8: in the Mood and they ignored the harms to the
[32:43] Speaker 8: parents who opposed the Ten Commandments. The other thing, as
[32:47] Speaker 8: one of the dissent points out, that they completely ignore,
[32:51] Speaker 8: is that the Supreme Court has historically been very mindful
[32:57] Speaker 8: of the establishment clause in the public school context for
[33:01] Speaker 8: several reasons. One the state requires children to be there,
[33:07] Speaker 8: so they're already using coercion and requiring their attendance. Second,
[33:12] Speaker 8: these are young children. These are impressionable children, and they're
[33:15] Speaker 8: very influenced by what happens in school. They're very influenced
[33:19] Speaker 8: by their teachers, by their peers. There's a lot of
[33:21] Speaker 8: pressure on them to conform. And Third, this whole idea
[33:26] Speaker 8: is parents are trusting them to schools on the understanding
[33:30] Speaker 8: that they're not going to try and conculcate them in
[33:33] Speaker 8: a religion not their own. And so even when the
[33:36] Speaker 8: Supreme Court was moving away from more protection under the
[33:42] Speaker 8: Establishment Clause, it has historically been especially careful when it
[33:47] Speaker 8: comes to children in public schools, and there was zero
[33:52] Speaker 8: mention of that in the majority's opinion.
[33:55] Speaker 2: Although the Supreme Court has allowed a high school football
[33:58] Speaker 2: coach to pray on them fifty yard line right after games,
[34:03] Speaker 2: saying his players wouldn't feel coerce to pray alongside him.
[34:07] Speaker 2: So not if. But when this gets to the Supreme Court,
[34:11] Speaker 2: how do you think they'll rule.
[34:13] Speaker 8: I have little confidence in a principal decision from the
[34:17] Speaker 8: current Supreme Court when it comes especially to issues involving
[34:22] Speaker 8: the rights of conservative Christians and doing what they want, right.
[34:25] Speaker 8: I think it's a white Christian nationalist court. I think
[34:28] Speaker 8: they'll decide whatever is favorable to the white Christian nationalists.
[34:31] Speaker 8: So I think that they would probably end up upholding
[34:35] Speaker 8: this law. Now, there are a lot of different tactics
[34:39] Speaker 8: that they might use to do it. They might not
[34:42] Speaker 8: do what the Fifth Circuit did. They might try and
[34:45] Speaker 8: dodge it by not finding standing. They might do it
[34:49] Speaker 8: by something I call secular washing. What they might try
[34:53] Speaker 8: to argue is that the Ten Commandments is not ultimately
[34:57] Speaker 8: a religious doctrine but secular item. It's not about inculcating
[35:04] Speaker 8: particular religious beliefs. It's about explaining or showing the role
[35:09] Speaker 8: of religion in our nation's history, trying to make clear
[35:14] Speaker 8: the origins of our political structure. None of that's true.
[35:18] Speaker 8: But one thing the Supreme Court has done in other
[35:22] Speaker 8: cases where there is some object that's obviously inherently religious
[35:27] Speaker 8: and therefore should be problematic under the establishment clause, is
[35:31] Speaker 8: the Court has said, no, no, no, this is not
[35:33] Speaker 8: actually religious like you think. So it's not a problem
[35:36] Speaker 8: like you think. And one particular case that comes to
[35:39] Speaker 8: mind is the challenge to the very large Latin Cross
[35:43] Speaker 8: monument in the middle of the highway, and you think
[35:46] Speaker 8: that's the pre eminent symbol of Christianity. And the Court
[35:49] Speaker 8: was like, no, no, no, no, no, no, it's not. You
[35:52] Speaker 8: don't understand. It's actually just a symbol of World War One,
[35:57] Speaker 8: and therefore there's no problem with it. And they've done
[36:02] Speaker 8: that with the Ten Commandments as well. They've already laid
[36:05] Speaker 8: the groundwork for arguing that the Ten Commandments, it's not
[36:09] Speaker 8: religious scripture, it's not trying to proselytize. It's an educational
[36:13] Speaker 8: document about our country's history and the origins of our
[36:18] Speaker 8: law and government.
[36:20] Speaker 2: Well, it will certainly be a while before this gets
[36:22] Speaker 2: up to the Supreme Court and we find out the
[36:24] Speaker 2: answer to that question. It's always great to have you on, Caroline,
[36:27] Speaker 2: Thanks so much. That's Professor Caroline Malacorbin of the University
[36:32] Speaker 2: of Miami Law School. And that's it for this edition
[36:35] Speaker 2: of the Bloomberg Law Show. Remember you can always get
[36:37] Speaker 2: the latest legal news on our Bloomberg Law Podcast. You
[36:41] Speaker 2: can find them on Apple Podcasts, Spotify, and at www
[36:45] Speaker 2: dot Bloomberg dot com, slash podcast Slash Law, and remember
[36:49] Speaker 2: to tune into the Bloomberg Law Show every weeknight at
[36:52] Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're
[36:56] Speaker 2: listening to Bloomberg

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