# Winners & Losers in the Supreme Court Term

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 7 Jul 2026, 36 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/511cad03-fdf4-4f2b-8de5-b480003a3b15/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Constitutional law expert Michael Dorf, a professor at Cornell Law School, analyzes the Supreme Court’s recent term from the expansion of presidential power to the gutting of the Voting Rights Act. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
[0:08] Speaker 2: It was a Supreme Court term in which the conservative
[0:11] Speaker 2: Republican super majority transformed the law in several notable ways,
[0:17] Speaker 2: expanding presidential power, cutting a landmark civil rights law, enhancing
[0:23] Speaker 2: gun rights, and eliminating campaigns spending restrictions. A term where
[0:27] Speaker 2: the ideological differences on the Court were never more apparent,
[0:32] Speaker 2: with nearly a quarter of all rulings six to three
[0:36] Speaker 2: with the Republican appointees and the majority and the Democratic
[0:39] Speaker 2: appointees in dissent. That's up from eleven percent last term.
[0:45] Speaker 2: My guest is an expert in constitutional law, Michael Darf,
[0:49] Speaker 2: a professor at Cornell Law School. Mike, let's start with
[0:52] Speaker 2: presidential power. The court block Trump's tariffs, rejected his attempt
[0:59] Speaker 2: to end birthright citizenship, and prevented the immediate firing of
[1:03] Speaker 2: a federal reserve governor. But the Court gave Trump and
[1:07] Speaker 2: future presidents greater control over federal agencies, allowing them to
[1:13] Speaker 2: fire top federal regulators even if Congress didn't intend that.
[1:17] Speaker 2: And in the immigration area, the Court allowed Trump to
[1:21] Speaker 2: pursue his aggressive immigration agenda in just about every case
[1:26] Speaker 2: so on the whole, did Trump win or lose this.
[1:28] Speaker 1: Term, I think that you have to say he won,
[1:32] Speaker 1: because in the cases in which he lost, his position
[1:37] Speaker 1: was so extreme that even getting the Supreme Court to
[1:42] Speaker 1: divide on the issue was kind of a victory. It
[1:46] Speaker 1: moved the Overton window to the right, or in this case,
[1:51] Speaker 1: to the direction of greater executive power. So, you know,
[1:55] Speaker 1: in Cook, for example, that's the case with the Federal
[1:58] Speaker 1: Reserve governor, he gets most of the Conservatives to sign
[2:02] Speaker 1: on to his position that what he did was enough
[2:06] Speaker 1: under the statute to fire a member of the Fed,
[2:09] Speaker 1: and that effectively, if that position had prevailed, would have
[2:12] Speaker 1: given him control of the Federal Reserve.
[2:14] Speaker 3: He cat very close to getting that.
[2:16] Speaker 1: Likewise, with respect to birthright citizenship, which you know, nobody
[2:21] Speaker 1: was even talking about as part of you know, what
[2:24] Speaker 1: we thought was reasonably contestable prior to the President's executive order.
[2:29] Speaker 1: There he gets, you know, a ninety page dissent by
[2:33] Speaker 1: Clarence Thomas. He gets Justice Alito Justice Corsuch to propose
[2:38] Speaker 1: various alternatives, all of which takes seriously this theory that
[2:43] Speaker 1: most serious historians say is based on, you know, chewing
[2:49] Speaker 1: gum and old newspapers that are sort of cobbled together
[2:52] Speaker 1: from out of context quotes from the reconstruction era. And
[2:56] Speaker 1: yet he almost wins there. And then when you look
[2:59] Speaker 1: at the win and the winds are huge.
[3:01] Speaker 3: Right. So in the.
[3:02] Speaker 1: Slaughter case, which is he gets to fire members of
[3:06] Speaker 1: the Federal Trade Commission, Court overrules a ninety year old
[3:10] Speaker 1: precedent in Humphrey's executor, and this gives him, you know,
[3:14] Speaker 1: nearly complete control of what were formerly independent agencies. There's
[3:20] Speaker 1: this tiny carve out for the Fed in the Cook case,
[3:23] Speaker 1: but it looks like that carveout is going to be
[3:26] Speaker 1: available only there and maybe with respect to non Article
[3:30] Speaker 1: three judges who are also distinguished. But it also suggests
[3:35] Speaker 1: even further sweeping presidential power. So, for example, the dissent
[3:39] Speaker 1: points out that the majority's rationale, or upholding the president's
[3:46] Speaker 1: power to fire people at will, would seem to apply
[3:49] Speaker 1: to civil servants as well, not just heads of agencies.
[3:53] Speaker 1: There's this case Parsons, which the Court in the nineteenth
[3:56] Speaker 1: century had upheld these sorts of restrictions for civil servants.
[4:00] Speaker 1: Court doesn't overrule it because it's not before the Court,
[4:04] Speaker 1: but the rationale would seem to apply, because the idea is,
[4:08] Speaker 1: if somebody exercises executive power and they can't be fired,
[4:12] Speaker 1: if that undermined the president as the head of the
[4:14] Speaker 1: executive branch. It doesn't matter how low they are in
[4:18] Speaker 1: the you know, line of authority. If their boss can't
[4:22] Speaker 1: fire them, then the president can't supervise them. So I
[4:24] Speaker 1: think the civil service is potentially in the firing line next.
[4:29] Speaker 2: And even in the extreme cases like birthright citizenship and
[4:33] Speaker 2: the tariffs, two of the most conservative Supreme Court justices
[4:37] Speaker 2: Clarence Thomas and Samuel Alito, always found reasons to side
[4:42] Speaker 2: with Trump, would you say, exemplifying the real split in
[4:46] Speaker 2: the court.
[4:47] Speaker 1: So I guess to be fair, if I were, you know,
[4:50] Speaker 1: putting aside my brothers, you might say, well, you know,
[4:54] Speaker 1: in all those cases st my Arkagan, and Jackson vote
[4:57] Speaker 1: against Trump, and that you know that is it's true.
[5:00] Speaker 1: That is to say that this is an ideologically divided court.
[5:06] Speaker 1: I think the best way to think of it is
[5:09] Speaker 1: that it's a court that has sort of three and
[5:12] Speaker 1: a half center right judges. It's got two and a
[5:15] Speaker 1: half extreme right judges and then three liberal justices, including
[5:20] Speaker 1: Justice Gorsuch. In the sometimes centrist, sometimes on the extreme right,
[5:24] Speaker 1: because that's how he votes, accepting cases involving Native Americans
[5:27] Speaker 1: in which he is the most liberal justice in the
[5:29] Speaker 1: history of the Supreme Court.
[5:30] Speaker 3: And you know, that's just where they are.
[5:33] Speaker 1: What's striking, I think is that, for the most part,
[5:37] Speaker 1: with a few exceptions for Justice Thomas on cases of
[5:41] Speaker 1: relatively low salience, right, for the most part, the ideological
[5:45] Speaker 1: divides are also partisan divides.
[5:48] Speaker 3: Right.
[5:48] Speaker 1: So the place where I think this is most apparent
[5:53] Speaker 1: is in Louisiana against KLA which is the Voting Rights
[5:57] Speaker 1: Act case. Even though it's not technically about executive power,
[6:03] Speaker 1: we know that it was going to be and has
[6:07] Speaker 1: been leverage or redistricting for partisan ends by Republicans, which
[6:14] Speaker 1: was a top priority and continues to be a top
[6:17] Speaker 1: priority of President Trump. And they're what's I think very
[6:22] Speaker 1: revealing is how utterly closely the sort of conservative ideological
[6:29] Speaker 1: position aligns with the Republican partisan position. So, you know,
[6:33] Speaker 1: the conservative ideological position is government shouldn't use race as
[6:37] Speaker 1: a criterion for anything.
[6:39] Speaker 3: Constitution is colorblind.
[6:41] Speaker 1: And you know, in the past that proposition has sometimes
[6:45] Speaker 1: operated against the partisan interests of the Republican party. So
[6:50] Speaker 1: if listeners who are old enough will think back to
[6:53] Speaker 1: the late eighties and early nineteen nineties during the George H. W.
[6:57] Speaker 1: Bush administration, there was some indication that the creation of
[7:05] Speaker 1: minority majority districts was going to undermine the interests of
[7:16] Speaker 1: the Democratic Party because by concentrating black voters into a
[7:21] Speaker 1: few small districts, you reduced the number of mixed districts
[7:27] Speaker 1: that Democrats might win. And that was before the South
[7:30] Speaker 1: fully realigned, and so until very recently, taking the view
[7:35] Speaker 1: that there's certain views about race in voting could scramble
[7:44] Speaker 1: ideological alliances, that's not true here in Louisiana against KLA
[7:49] Speaker 1: What the court says is, well, political gerrymandering is fine,
[7:55] Speaker 1: and therefore.
[7:56] Speaker 3: We're not going to find any kind of race.
[7:59] Speaker 1: Discrimination against minority voters sufficient to create a majority minority
[8:06] Speaker 1: district And the result will be we're going to empower
[8:11] Speaker 1: Republican controlled state legislatures to engage in political jerry mandering
[8:17] Speaker 1: that is also the facto racial jerry mandering. So you
[8:21] Speaker 1: can now have your ideological cake and eat your politically
[8:26] Speaker 1: partisan cake as well.
[8:28] Speaker 2: Let's turn that into voting in elections. Because the court
[8:31] Speaker 2: gutted the voting Rights Act. I don't know what's left
[8:34] Speaker 2: of the Act at this point, and that again was
[8:38] Speaker 2: sixty three, as was Louisiana La. So I mean, it's
[8:43] Speaker 2: been said that this is something that the Chief Justice
[8:46] Speaker 2: has had on his agenda. Shall we say we saw
[8:49] Speaker 2: the first part of the attack on the Voting Rights
[8:51] Speaker 2: Act in the case of Shelby County versus Holder.
[8:55] Speaker 3: Right, So you can think of it as a one
[8:56] Speaker 3: to two punch.
[8:57] Speaker 1: So in Shelby County against Holder, they said that the
[9:00] Speaker 1: coverage formula of which areas were subject to preclearance was unconstitutional,
[9:08] Speaker 1: and so that eliminated the executive branch as the enforcer
[9:12] Speaker 1: of the Voting Rights Act. What they did in the
[9:14] Speaker 1: KLA case this term was to say that the threshold
[9:20] Speaker 1: for binding that there has been, you know, improper use
[9:26] Speaker 1: of race is so high because it's so hard to distinguish,
[9:30] Speaker 1: in their view between racial and political gerrymandering. That effectively,
[9:34] Speaker 1: now you've taken the judiciary out of the picture. What's left,
[9:38] Speaker 1: I think, right, since you can no longer say that
[9:42] Speaker 1: disparate impact is sufficient, what's left is to say that
[9:47] Speaker 1: if state legislators are stupid enough to expressly say we
[9:54] Speaker 1: are gerrymandering here because we are we have racial animis, well,
[9:59] Speaker 1: then that's a violent of the Voting Rights Act And
[10:01] Speaker 1: that just seems extraordinarily unlikely.
[10:04] Speaker 2: Yes, because in the Alabama case, a three judge panel
[10:08] Speaker 2: had found that the state did intentionally discriminate against black voters.
[10:13] Speaker 2: But the Supreme Court ignore that Basically, shouldn't they have
[10:16] Speaker 2: accepted the facts as a three judge panel saw them
[10:18] Speaker 2: instead of making their own conclusions.
[10:20] Speaker 1: Yes, I think what they would say is that the
[10:25] Speaker 1: lower court did not give adequate force to the possibility
[10:32] Speaker 1: that this was all just political jerrymandering. The way that
[10:37] Speaker 1: they put it is that in order to show race discrimination,
[10:44] Speaker 1: the plaintiffs need to construct an alternative map that achieves
[10:50] Speaker 1: all of the goals of the legislature, including protecting incumbents
[10:56] Speaker 1: and partisan gerrymandering. And only then if you can do
[11:01] Speaker 1: that and show that you could have an additional majority
[11:04] Speaker 1: minority district, only then have you shown anything. But of course,
[11:07] Speaker 1: given the way that you know people are concentrated, and
[11:11] Speaker 1: given the strong correlation between race and voting patterns, that's
[11:16] Speaker 1: going to be virtually impossible. So to my mind, it's
[11:21] Speaker 1: not just the Shelby County case that tees up CALA.
[11:27] Speaker 1: It's also Rucho against Common Cause Right, which is the
[11:30] Speaker 1: case from a number of years ago in which the
[11:32] Speaker 1: Court says that challenges to political gerrymandering are not justiciable,
[11:38] Speaker 1: meaning they can't be heard by federal courts. And then
[11:42] Speaker 1: the transformation of that holding from the proposition that it
[11:47] Speaker 1: might be unconstitutional, but there's nothing the courts can do
[11:49] Speaker 1: about it, to the proposition that partisan jerrymandering, you know,
[11:53] Speaker 1: it's not just a sin, we can't block, it's a
[11:56] Speaker 1: virtue somehow.
[11:57] Speaker 3: And so that's the key move made it.
[12:00] Speaker 1: In an earlier case, but they really run with it
[12:03] Speaker 1: in KLA because without that the plaintiffs win. It's only
[12:07] Speaker 1: because the plaintiffs can't reproduce the same maps and get
[12:11] Speaker 1: the partisan jerrymander that the court is able to reject
[12:15] Speaker 1: the plaintiff's case.
[12:16] Speaker 2: Coming up next more on the Supreme Court term with
[12:19] Speaker 2: Cornell law professor Michael Dorf. A losing term for LGBTQ rights.
[12:25] Speaker 2: Once again, this is bloomberg. In three election law cases
[12:31] Speaker 2: before the Supreme Court this term, the justices gutted a
[12:34] Speaker 2: key provision of the Voting Rights Act in a six
[12:37] Speaker 2: to three decision down ideological lines, struck down limits on
[12:43] Speaker 2: coordinated spending between political parties and candidates, again an ideological
[12:48] Speaker 2: split six to three. However, the court did uphold the
[12:51] Speaker 2: state's ability to count mail in ballots postmarked by election
[12:56] Speaker 2: day but received later. I've been talking to Professor Michael
[12:59] Speaker 2: Dorf Cornell Law School, Mike in a pretty high profile
[13:03] Speaker 2: case involving mail in ballots in Mississippi and whether that
[13:08] Speaker 2: state could count mail in ballots that are postmarked by
[13:12] Speaker 2: election day but received later. And that decision was five
[13:15] Speaker 2: to four, with the Chief Justice and Justice Amy Cony
[13:19] Speaker 2: Barrett joining the Court's liberals in the majority. That gave
[13:23] Speaker 2: the Democrats a rare victory at the Court. Were you
[13:27] Speaker 2: surprised by that decision?
[13:29] Speaker 1: I wasn't terribly surprised hardly, because although this has been
[13:34] Speaker 1: a priority of President Trump, right to go after mail
[13:39] Speaker 1: in ballots, it hasn't been a priority of the Republican
[13:43] Speaker 1: Party because it doesn't actually.
[13:45] Speaker 3: Benefit the Republican Party.
[13:47] Speaker 1: As such, the parties both take advantage of mail in voting.
[13:53] Speaker 1: I mean, the fact that it was Mississippi tells you something.
[13:55] Speaker 1: Mississippi is a deep red state, but they're the ones
[13:59] Speaker 1: who are defended their particular timing rules. The other problem
[14:04] Speaker 1: for the argument against this is that if you take
[14:08] Speaker 1: it literally, then you know, what about the fact that
[14:12] Speaker 1: there's early voting in a lot of states, So it
[14:14] Speaker 1: would really have been extremely disruptive of the way that
[14:19] Speaker 1: many states, both red and blue, conduct their elections and
[14:22] Speaker 1: without the clear partisan balance. It didn't surprise me the.
[14:25] Speaker 2: Court struck down limits on coordinated spending between political parties
[14:30] Speaker 2: and candidates, and that also was six to three.
[14:33] Speaker 1: Yeah, so that case, you know, you can think of
[14:36] Speaker 1: that in the same category of cases going back to
[14:39] Speaker 1: Citizens United, where the Court is taking a very restrictive
[14:44] Speaker 1: view of what Congress can do to regulate campaign finance.
[14:50] Speaker 1: And one of the criticisms of Citizens United is that
[14:54] Speaker 1: the Court was sort of naive about the way in
[14:57] Speaker 1: which money affects politics. Well, you know, someone makes an
[15:01] Speaker 1: independent expenditure that's not going to buy a candidate, but
[15:05] Speaker 1: of course the candidates know that that's going on. Same
[15:08] Speaker 1: thing is true here, right, The court says, well, you know,
[15:12] Speaker 1: of course parties are going to coordinate their campaigns with
[15:18] Speaker 1: the candidates.
[15:19] Speaker 3: That's true, but that's not what coordination is about.
[15:21] Speaker 1: As the dissenters point out in the case, the whole
[15:24] Speaker 1: point of this restriction was to prevent circumvention of the
[15:30] Speaker 1: limits on giving money to an individual candidate.
[15:34] Speaker 3: Right, So you can only give you.
[15:35] Speaker 1: Know, probably about four thousand dollars in the next campaign
[15:38] Speaker 1: cycle to a candidate, once for the primary and once
[15:42] Speaker 1: for the general election. But if you can give you know,
[15:45] Speaker 1: hundreds of thousands of dollars to the party and then
[15:48] Speaker 1: have that earmarked for that candidate, well then you've essentially
[15:52] Speaker 1: here's that word again, gutted the campaign contribution limits with
[15:57] Speaker 1: respect to individual candidates.
[15:59] Speaker 3: I think that is the goal of the Roberts Court here.
[16:01] Speaker 2: Frankly, Elena Kagan during the oral arguments and in her dissent,
[16:06] Speaker 2: made it pretty clear. I mean, it's wink wink, not
[16:09] Speaker 2: not or not even how this is going to work
[16:11] Speaker 2: out in the end.
[16:12] Speaker 4: One of the criticisms of the Citizens United, which comes
[16:19] Speaker 4: from an exception that goes it was in the Buckley
[16:21] Speaker 4: against Balleo case all the way back in nineteen seventy six.
[16:24] Speaker 1: One of the criticisms of that case is that if
[16:27] Speaker 1: you have low limits on contributions to candidates but no
[16:32] Speaker 1: limits on independent expenditures, you essentially eliminate or greatly reduce
[16:39] Speaker 1: the disciplining effect of candidates having to stand behind the message.
[16:44] Speaker 3: So you know, when a candidate says, I'm you.
[16:46] Speaker 1: Know, Joshmo, and I endorse this message, right, you don't
[16:50] Speaker 1: see that when you've got an independent ad you know
[16:54] Speaker 1: on you know, Americans for a Better America. But it's
[16:58] Speaker 1: actually in favor of candidate josh and they can say
[17:00] Speaker 1: anything they want and then Joshmo has plausible deniability. By
[17:06] Speaker 1: allowing greater coordination between the parties and the candidates, you
[17:12] Speaker 1: create some additional bonds which could result in some greater
[17:17] Speaker 1: disciplining force, as opposed to making everybody just a kind
[17:21] Speaker 1: of independent agent who can say whatever they want. So
[17:25] Speaker 1: I've seen some people who favor campaign finance regulation to say,
[17:28] Speaker 1: given everything else that goes on, it's actually not such
[17:31] Speaker 1: a bad thing to allow coordination between parties and candidates.
[17:35] Speaker 2: We shall see, I guess. But I mean so talking
[17:38] Speaker 2: about Robert's always saying, you know, we're not politicians in robes,
[17:42] Speaker 2: and we're different from the political branches. But when you
[17:46] Speaker 2: have these election cases and it comes down to Republicans
[17:50] Speaker 2: versus Democrats on you know, for example, setting off that
[17:53] Speaker 2: redistricting in the Southern States, and you know, this coordinated
[17:58] Speaker 2: spending and the voting right now, I mean, doesn't it
[18:01] Speaker 2: paint the court as more political?
[18:04] Speaker 3: Yes?
[18:05] Speaker 1: And I would add that this is exacerbated by the
[18:12] Speaker 1: fact that, you know, in recent years we've had a
[18:16] Speaker 1: court in which the most liberal Republican appointee is nonetheless
[18:23] Speaker 1: much more conservative than the most conservative Democratic appointee. That
[18:27] Speaker 1: wasn't always true, and it wasn't true in a big
[18:31] Speaker 1: way in periods that are still within living memory. So certainly,
[18:36] Speaker 1: during the Warren Court, right the two most influential liberal
[18:40] Speaker 1: justices were Earl Warren himself and William Brennan, both of
[18:44] Speaker 1: whom were appointed by President Eisenhower, who's a Republican. You know,
[18:49] Speaker 1: it wasn't all that long ago that this court still
[18:53] Speaker 1: had David Souter, Sandrade O'Connor, John Paul Stevens, Anthony Kennedy,
[18:59] Speaker 1: all of of whom were Republican appointees who, to one
[19:02] Speaker 1: degree or another had a liberal or moderate streak. It's
[19:06] Speaker 1: been a while since we had the last conservative Democrat.
[19:11] Speaker 3: That was probably Byron White.
[19:13] Speaker 1: But the reason why it's been a while is because
[19:15] Speaker 1: there's so few Democratic appointees lately, and so I think
[19:19] Speaker 1: that the fact that we have such a partisan court
[19:24] Speaker 1: and visibly part is in court is partly to do
[19:27] Speaker 1: with greater polarization in our politics. You know, the era
[19:32] Speaker 1: when you had moderate to liberal Republicans was an era
[19:37] Speaker 1: when you still had New England and Midwestern Republicans who
[19:42] Speaker 1: were liberal on a lot of issues, and you had
[19:44] Speaker 1: Dixiecrats who were conservative on a lot of issues. And
[19:47] Speaker 1: so it wasn't that unusual for a Republican president to
[19:51] Speaker 1: appoint a moderate to liberal or a Democratic president to
[19:54] Speaker 1: appoint a moderate to conservative.
[19:56] Speaker 3: That just doesn't happen anymore.
[19:58] Speaker 1: And so now you're seeing this perfect alignment of ideology
[20:02] Speaker 1: and partisan politics.
[20:03] Speaker 2: Let's turn to LGBTQ rights, and these always seem to
[20:08] Speaker 2: be ideologically divided, with the Liberals in dissent. So you
[20:13] Speaker 2: had the court upholding state bans on transgender athletes competing
[20:19] Speaker 2: on girls' school sports teams. I mean, I don't think
[20:23] Speaker 2: anyone ever expected that the Conservatives were going to vote
[20:26] Speaker 2: any which way besides upholding these bands.
[20:29] Speaker 1: Well, the reason to have some hope, it was a
[20:32] Speaker 1: hope that was dashed, but the reason to have some
[20:33] Speaker 1: hope was the fact that in the boss Stock case
[20:38] Speaker 1: back in twenty twenty, the Supreme Court, in an opinion
[20:42] Speaker 1: by Justice Neil Gorsich joined by Chief Justice John Roberts
[20:45] Speaker 1: and the more liberal justices, said that Title seven, which
[20:49] Speaker 1: is the federal employment discrimination statute when it forbids sex discrimination,
[20:55] Speaker 1: also therefore forbidds discrimination on the basis of sexual orientation
[20:59] Speaker 1: and transgender status. And this case arose under both the
[21:05] Speaker 1: egal protection clause of the Fourteenth Amendment and Title nine
[21:09] Speaker 1: of that same Civil Rights Act. And this Title nine
[21:13] Speaker 1: is broadly similar to Title seven. So there was at
[21:16] Speaker 1: least a cymopacia, that is, you know, first instance argument
[21:20] Speaker 1: that what's true of Title seven should be true of
[21:24] Speaker 1: Title nine. Now there were reasons to think that, as
[21:27] Speaker 1: the Court ultimately held that might not work. Part of
[21:30] Speaker 1: it is there's this provision in Title nine, adopted a
[21:33] Speaker 1: couple of years after the adoption of Title line itself,
[21:36] Speaker 1: called the Javits Amendment, which allows for sex segregated athletic teams.
[21:41] Speaker 1: There's no parallel allowance in Title seven. But still the
[21:45] Speaker 1: so called boss Stock analogy was pretty powerful, i should say,
[21:49] Speaker 1: turned out not to be that way. Even the liberal
[21:51] Speaker 1: justices rejected the statutory claim, although they accepted the egal
[21:55] Speaker 1: protection claim. If you're viewing it from a social pole lens,
[22:00] Speaker 1: like you know, how far is this court going to go?
[22:03] Speaker 1: I think I shared your view going into the case,
[22:07] Speaker 1: and certainly after the oral argument that there weren't going
[22:10] Speaker 1: to be the votes there to say that what the
[22:13] Speaker 1: states were doing in these cases was unlawful. But that
[22:18] Speaker 1: doesn't mean that the legal argument was so bad. It
[22:21] Speaker 1: just means that, you know, you look at the justices
[22:24] Speaker 1: and you think they're not ready for this, and you know,
[22:27] Speaker 1: to be fair, the argument for excluding transgender women from
[22:34] Speaker 1: women's sports and transgender girls from girls' sports is at
[22:38] Speaker 1: least in many cases stronger than it is for keeping
[22:43] Speaker 1: out you know, someone who's gay or trends from just
[22:47] Speaker 1: any job. And so the result was not especially shocking
[22:51] Speaker 1: for that reason.
[22:52] Speaker 2: You put it into context what this court has done
[22:55] Speaker 2: this term and in prior terms. So this term, besides
[22:59] Speaker 2: the trensgender sports case, the Court struck down Colorado's ban
[23:04] Speaker 2: on conversion talk therapy for LGBTQ miners, which every medical
[23:11] Speaker 2: association says is not healthy for miners. On the Court's
[23:15] Speaker 2: emergency docket, The Conservatives have also allowed the Trump administration
[23:20] Speaker 2: to ban transgender people from the military and bar passport
[23:25] Speaker 2: applicants from designating their gender identities on their passports, and
[23:30] Speaker 2: that was just this term. There hasn't been a decision
[23:34] Speaker 2: where LGBTQ wrights won since the Boss doc case you
[23:39] Speaker 2: were talking about back in twenty twenty.
[23:42] Speaker 1: I don't disagree, and I don't like really any of
[23:45] Speaker 1: these decisions. I will say that for me, at least,
[23:48] Speaker 1: the Colorado conversion therapy case was hard, not because I
[23:53] Speaker 1: think conversion therapy is a good idea or works, but
[23:56] Speaker 1: because I worried that the kind of argument that was
[24:00] Speaker 1: needed to sustain Colorado's ban would have given this court
[24:08] Speaker 1: also been sufficient to sustain state bans on gender affirming
[24:14] Speaker 1: talk therapy. So in the Scrimmatic case last year, the
[24:18] Speaker 1: case of Pols Tennessee ban on hormone treatment and pubity blockers,
[24:23] Speaker 1: the state also banned surgery, but surgery wasn't actually an issue.
[24:27] Speaker 1: But presumably today it's still possible for a transminor to
[24:33] Speaker 1: go to a therapist in Tennessee and have talk therapy
[24:39] Speaker 1: that is supportive of their gender identity.
[24:43] Speaker 3: If the court had said, well.
[24:46] Speaker 1: Colorado can ban conversion therapy because talk therapy is a
[24:53] Speaker 1: medical practice and not speech or not you know, protected
[24:58] Speaker 1: speech or less protected speech. Then I could see Tennessee
[25:01] Speaker 1: or Alabama or some other state coming to the court
[25:03] Speaker 1: and say, well, you know what, we're going to ban
[25:05] Speaker 1: this gender firm me talk therapy, and we can do
[25:08] Speaker 1: that too as regulation.
[25:10] Speaker 3: Of the medical profession. And I could see a court
[25:13] Speaker 3: if this court had gone the other way in the
[25:15] Speaker 3: Colorado case, I would worry that they would go and
[25:18] Speaker 3: do the same thing for these other bends that I
[25:21] Speaker 3: think would be really destructive. So that's my effort to
[25:23] Speaker 3: find a silver lining in that case.
[25:25] Speaker 2: Fair enough, So let's turn from the First Amendment to
[25:27] Speaker 2: the second Amendment. Is it fair to say that the
[25:30] Speaker 2: Court expanded gun rights in two cases this term.
[25:33] Speaker 3: Yes.
[25:34] Speaker 1: Now one of the cases, of course, was actually unanimous.
[25:38] Speaker 3: Right. So this is the case where there's this Texas man.
[25:41] Speaker 1: Who admits to using marijuana roughly every other day, and
[25:47] Speaker 1: under a federal statute, that's a basis for taking away
[25:53] Speaker 1: his firearms, and you're criminally convicting him. And the court
[25:58] Speaker 1: unanimously says, come on, but the basis for doing it
[26:03] Speaker 1: is in some ways ridiculous. It's this test that they
[26:06] Speaker 1: announced in the Bruin case a few years ago, which
[26:10] Speaker 1: says that in order for a regulation of firearms to
[26:14] Speaker 1: be valid, it has to be analogous to a regulation
[26:19] Speaker 1: of firearms either in seventeen ninety one when the Second
[26:23] Speaker 1: Amendment was adopted, or maybe in eighteen sixty eight when
[26:26] Speaker 1: the Fourteenth Amendment was adopted. We're not going to tell
[26:27] Speaker 1: you which, And it had to have been the kind
[26:29] Speaker 1: of regulation that was widespread at the time, whichever of
[26:32] Speaker 1: those times. And so of course the government said, well,
[26:35] Speaker 1: you know, there were these laws that disarmed habitual drunkards
[26:38] Speaker 1: at the founding era. And then there's a debate over
[26:42] Speaker 1: how similar or not being a marijuana user is to
[26:45] Speaker 1: being an habitual drunkard, and the Cord ultimately concludes it's
[26:47] Speaker 1: not that similar at all.
[26:48] Speaker 3: But that's sort of ridiculous, right.
[26:50] Speaker 1: The real question should be does using marijuana roughly every
[26:55] Speaker 1: other day distinguish somebody enough from the average person that
[26:59] Speaker 1: they should be able to have a gun if everybody
[27:01] Speaker 1: else can have a gun. And you know, to their credit,
[27:04] Speaker 1: some of the concurring justices, there was a concurrence by
[27:07] Speaker 1: Justice Alito, joined by Justice Kagan, which is not typical
[27:10] Speaker 1: lineup right, said look, you know, people use marijuana now
[27:15] Speaker 1: the way that people drink, and it's been decriminalized, and
[27:19] Speaker 1: you know most of the states federal government doesn't enforce,
[27:21] Speaker 1: so this doesn't make any sense.
[27:22] Speaker 3: So there's a kind of common sense idea there.
[27:25] Speaker 1: The other sectend case is the one where they do
[27:28] Speaker 1: seem to expand in sect emendic rights. That's the Hawaii case, right,
[27:33] Speaker 1: in which Hawaii has a law that they enacted post
[27:37] Speaker 1: Bruin that says, if you are a private property owner,
[27:41] Speaker 1: we're going to presume you don't want people coming on
[27:44] Speaker 1: your property with firearms unless you explicitly, either orally or
[27:49] Speaker 1: in writing consent. And this was challenged on the ground that, well,
[27:55] Speaker 1: you know, you know what about a gas station, private
[27:58] Speaker 1: property owner, or a drug store supermarket. You know, when
[28:01] Speaker 1: you apply this presumption, you're going to say that people
[28:04] Speaker 1: that effectively can't carry their firearms in public.
[28:07] Speaker 3: And the back and.
[28:08] Speaker 1: Forth between the majority and the descent, primarily Justice Jackson
[28:12] Speaker 1: in descent on this point is over whether this is
[28:16] Speaker 1: really a regulation of firearms at all. Justice Jackson says, no, no, no,
[28:19] Speaker 1: this is a regulation of property. Everybody agrees that private
[28:23] Speaker 1: property owner can say you can't come on to my
[28:25] Speaker 1: property with a gun. You could say you can't come
[28:27] Speaker 1: onto my private property with a hat if you wanted to.
[28:30] Speaker 1: And so you know what's the issue here, And the
[28:33] Speaker 1: majority says no, No, this is a regulation of guns
[28:36] Speaker 1: in the same way.
[28:36] Speaker 3: And this is the line that Justice Barrot gives.
[28:40] Speaker 1: In the same way that if the law said we're
[28:44] Speaker 1: going to presume that people don't give permission to somebody
[28:47] Speaker 1: to come on your property wearing a huge job, that
[28:50] Speaker 1: would be religious discrimination.
[28:52] Speaker 3: Well, this is a violation of your Second Amendent rights.
[28:54] Speaker 3: And that sounds like a pretty good analogy, except that
[28:58] Speaker 3: you know, the First Amendment is a kind of anti
[29:01] Speaker 3: discrimination principle.
[29:02] Speaker 1: It can't disclinate it the basis of religion. You can't
[29:04] Speaker 1: censor by drawing distinctions based on speech. Second Amendment is
[29:08] Speaker 1: mostly not an equality principle, it's a liberty principle. So
[29:11] Speaker 1: I'm not sure how well that fits. But now you know,
[29:14] Speaker 1: this is another category of laws that we know are
[29:18] Speaker 1: going to be subject to this second event scrutiny.
[29:21] Speaker 2: So there was a reference to religion there. I think
[29:23] Speaker 2: the only case involving religion. This term was the one
[29:27] Speaker 2: in which the Rastafarian inmates sued over the cutting of
[29:31] Speaker 2: his dreadlocks, but the court said he couldn't sue prison
[29:34] Speaker 2: officials for violating his religious rights. That was the first
[29:38] Speaker 2: case in many years where the court didn't rule in
[29:41] Speaker 2: favor of religious rights, and some people were speculating that
[29:45] Speaker 2: it was because the rest of Farian religion was at
[29:48] Speaker 2: issue rather than more mainstream religions, specifically Christian religions. Tell
[29:54] Speaker 2: us why he lost.
[29:56] Speaker 1: And that actually is mostly a reloop case religious Land
[30:01] Speaker 1: Use and Institutionalized Persons Act rather than a free exercise case.
[30:06] Speaker 1: So this is a Rasafaian who's in prison for a
[30:10] Speaker 1: relatively minor drug offense. He's in prison for like a
[30:12] Speaker 1: total of nine months, and they move him from one
[30:15] Speaker 1: facility to another. When he gets to this new facility
[30:17] Speaker 1: with not much time remaining on his sentence, he tells them,
[30:21] Speaker 1: you know, they have a practice of shaving the heads
[30:24] Speaker 1: of the prisoners.
[30:25] Speaker 3: He tells them, hey, don't do that. That's against my religion.
[30:28] Speaker 3: And he shows them a copy of a decision by
[30:32] Speaker 3: the US Court of Appeals for the Fifth Circuit which
[30:34] Speaker 3: is binding in this jurisdiction that says, yeah, that would
[30:36] Speaker 3: violate Raluopa. And they do it anyway, and they throw
[30:41] Speaker 3: the copy of the decision in the trash, so it's
[30:44] Speaker 3: very overt.
[30:44] Speaker 1: They know what they're doing. He sues the individual officers,
[30:49] Speaker 1: and the Supreme Court says, you can't sue the individual
[30:52] Speaker 1: officers under RALOOPA because Raloopa is passed pursuant to Congress's
[30:59] Speaker 1: spending pass and it is in the nature of a contract.
[31:03] Speaker 1: But it's a contract with the state. The state has
[31:06] Speaker 1: agreed to be bound by Ralupa, but the individual officers haven't.
[31:11] Speaker 1: And so in the same way that you can't hold
[31:13] Speaker 1: somebody who doesn't sign a contract to the terms of
[31:15] Speaker 1: some strangers contract, these officers are strangers to the contract.
[31:20] Speaker 1: And so I see it as a case really about
[31:23] Speaker 1: congressional power. They're narrowly reading the spending power, which is
[31:28] Speaker 1: something that Congress often uses. So for example, the transgender
[31:32] Speaker 1: athletes cases. The reason why Title nine might apply. The
[31:37] Speaker 1: Court ends up saying it doesn't forbid it, but they
[31:39] Speaker 1: don't say it doesn't apply. The reason might it applies
[31:41] Speaker 1: is because Congress conditions the receipt of federal money by universities, colleges,
[31:47] Speaker 1: elementary schools, et cetera. On accepting the anti discrimination principles.
[31:52] Speaker 1: Same thing is true RALUPA. But now we're being told
[31:55] Speaker 1: that under the spending power, Congress can't sub third parties
[32:01] Speaker 1: to liability, and that could have implications much more broadly
[32:05] Speaker 1: than with respect to this particular Rastafarian or even with
[32:08] Speaker 1: respect to prisons, but across the board. I wrote a
[32:12] Speaker 1: piece shortly after the decision on verdict, which is one
[32:15] Speaker 1: of the places where I have my commentary on these things,
[32:18] Speaker 1: saying that actually the Court ignored the possibility that this
[32:23] Speaker 1: provision of reloop book could be valid under the Commerce
[32:26] Speaker 1: clause because Congress doesn't just have the power directly to
[32:29] Speaker 1: spend money. It has all sorts of other powers. The
[32:32] Speaker 1: chief one it typically uses is the commerce power, and
[32:36] Speaker 1: prisons are basically benefiting from interstate commerce.
[32:40] Speaker 3: They are relying.
[32:42] Speaker 1: On interstate commerce, and the activity of cutting somebody's hair
[32:47] Speaker 1: is what counts as economic activity in the Court's cases.
[32:50] Speaker 1: And there's a provision of RELOOPA that relies on the
[32:52] Speaker 1: Commerce clause, which the Court just says, well, this doesn't apply,
[32:55] Speaker 1: so we're not going to worry about it now. Maybe
[32:57] Speaker 1: that's because of how the case was litigated, But to mind,
[33:00] Speaker 1: you know, I'm willing to assume that they would have
[33:03] Speaker 1: said the same thing if this were a religious Christian
[33:07] Speaker 1: or some other religion that they favored.
[33:09] Speaker 3: But to my mind, the real issue here is the
[33:12] Speaker 3: scope of congressional power.
[33:13] Speaker 2: So do you want to sum up, you know, your
[33:16] Speaker 2: conclusions about the term.
[33:18] Speaker 1: So I want to offer as a foil one alternate
[33:22] Speaker 1: way of thinking about the term. Right, you might think,
[33:24] Speaker 1: and I've seen some versions of this that on the
[33:29] Speaker 1: issues that have been of long running concern to conservatives
[33:34] Speaker 1: the conservative side, one on the voting rights, on Second
[33:38] Speaker 1: Amendment rights, on you know, LGBT culture, war issues, presidential power,
[33:44] Speaker 1: et cetera. But on the sort of Trump specific issues,
[33:49] Speaker 1: the president didn't do so well. So, you know, tariffs
[33:51] Speaker 1: have not been a long standing position of conservatives. Generally,
[33:55] Speaker 1: conservatives have been for free trade prior to Trump, and
[33:58] Speaker 1: so he loses on tariff's right. Citizenship not really on
[34:02] Speaker 1: the table prior to the president's executive order on his
[34:06] Speaker 1: first day of his second term.
[34:07] Speaker 3: And so he loses on that, And I think that's
[34:10] Speaker 3: sort of right, But I think it's important to understand
[34:13] Speaker 3: The reason he loses is not because there's this rift
[34:18] Speaker 3: between the sort of elite legal conservatives and Trump.
[34:24] Speaker 1: There might be such a rift between Chief Justice Roberts
[34:27] Speaker 1: and Trump, but you know, he's getting Thomas and Alito,
[34:31] Speaker 1: as you said, in all of these cases, he's getting
[34:34] Speaker 1: some combination of or such Kavanaugh, Barrett and some of
[34:38] Speaker 1: these cases. And so the only reason he's losing in
[34:41] Speaker 1: the cases he loses is because all the liberals vote
[34:44] Speaker 1: against him, and then you know two or occasionally three.
[34:47] Speaker 3: Of the conservatives also vote against.
[34:49] Speaker 1: Him, and on the cases he wins, even when he's
[34:53] Speaker 1: winning on traditional conservative issues, right, I think this court
[34:59] Speaker 1: is is being willfully blind or at best hyperopic, which
[35:05] Speaker 1: is the opposite of myopic. They're seeing off in the
[35:08] Speaker 1: distance but not what's in front of them, so they're
[35:10] Speaker 1: not seeing the immediate consequences of giving all of this
[35:15] Speaker 1: presidential power, right, which is something they've wanted to expand
[35:17] Speaker 1: for years, but giving it to this particular president who
[35:21] Speaker 1: has shown that he and the people he appoints are
[35:24] Speaker 1: going to abuse that power. And so to my mind,
[35:27] Speaker 1: the story here is that Trump is winning, and it
[35:33] Speaker 1: really doesn't matter whether he's winning because the Supreme Court
[35:37] Speaker 1: likes what he's doing, or you know, they're pursuing their
[35:40] Speaker 1: own agenda. They're at the very least allowing him to
[35:44] Speaker 1: win and thus allowing the concentration of power, in my view,
[35:48] Speaker 1: very dangerous hands.
[35:49] Speaker 2: Thanks so much for taking us through this term, Mike.
[35:52] Speaker 2: That's constitutional law professor Michael Dorf of Cornell Law School,
[35:56] Speaker 2: and that's it for this edition of The Bloomberg Law Show.
[35:59] Speaker 2: Remember you can always at the latest legal news on
[36:01] Speaker 2: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
[36:05] Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law,
[36:11] Speaker 2: and remember to tune into The Bloomberg Law Show every
[36:13] Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
[36:18] Speaker 2: and you're listening to Bloomberg

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