# Behind the SCOTUS Curtain & Chevron Gets the Win, Louisiana Gets the Loss

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 22 Apr 2026, 39 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/9a5a961c-34cf-464a-83ce-b434002cc3bc/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Constitutional law expert Harold Krent, a professor at the Chicago-Kent College of Law, discusses the recent leaks of confidential memos of the Supreme Court justices. Then environmental law expert Pat Parenteau, a professor at the Vermont Law & Graduate School, discusses the Supreme Court handing Chevron and oil companies a win, but handing Louisiana and the environment, a loss. 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: Chief Justice John Roberts has long cultivated an image of
[0:12] Speaker 2: the Supreme Court as an institution above politics. Nine justices
[0:18] Speaker 2: who reached their decisions based on the law alone.
[0:22] Speaker 3: And you need to understand, well, it's because the Framers
[0:25] Speaker 3: didn't want the courts to be making political decisions.
[0:28] Speaker 1: Quite the contrary.
[0:29] Speaker 2: But The New York Times has published leaked confidential memos
[0:34] Speaker 2: between the justices, and they reveal a different side of Roberts,
[0:38] Speaker 2: certainly not the umpire calling balls and strikes as he
[0:42] Speaker 2: described in his confirmation hearings. The memos show a Chief
[0:46] Speaker 2: Justice who pushed to block President Obama's signature environmental policy
[0:52] Speaker 2: in five days, without oral arguments, without full briefing, and
[0:57] Speaker 2: without input from the lower courts because, as he said,
[1:00] Speaker 2: it was quote the most expensive regulation ever imposed on
[1:04] Speaker 2: the power sector. And on February ninth of twenty sixteen,
[1:09] Speaker 2: in a five to four vote along partisan lines, the
[1:13] Speaker 2: Jauntices issued a one paragraph ruling halting Obama's clean Power plan.
[1:19] Speaker 2: Was that the start of the now highly controversial shadow docket.
[1:24] Speaker 2: Joining me is an expert in constitutional law, Harold Krant,
[1:28] Speaker 2: a professor at the Chicago Kent College of Law. How So,
[1:31] Speaker 2: The New York Times has published these until now secret
[1:35] Speaker 2: memos about the five days before the Supreme Court issued
[1:40] Speaker 2: an order blocking President Obama's Clean Power Plan. Tell us
[1:45] Speaker 2: what happened.
[1:46] Speaker 3: So, the Court never blocked the power plant on the merits,
[1:51] Speaker 3: but rather used its power to decide to stop the
[1:55] Speaker 3: action before they could even hear the case.
[1:58] Speaker 4: And so they.
[1:58] Speaker 3: Deployed their power to basically protect individuals in the United
[2:04] Speaker 3: States from what they saw is overreaching by the Obama administration.
[2:09] Speaker 4: So this is an.
[2:09] Speaker 3: Overtly political move because they didn't like the power plan,
[2:14] Speaker 3: and the memos evinced the fact that they thought that
[2:17] Speaker 3: this was excessive power, that there shouldn't be this much
[2:21] Speaker 3: of a drain on the economy in order to protect
[2:26] Speaker 3: the environment.
[2:27] Speaker 4: And so, you know, the.
[2:28] Speaker 3: Way it reads is that the Supreme Quote was overtly
[2:32] Speaker 3: political in deciding to resolve this case not on the merits,
[2:36] Speaker 3: but rather simply on the basis of its emergency docket,
[2:42] Speaker 3: thereby stopping the plan before it could be effectuated.
[2:45] Speaker 2: So this was pushed through in five days, and some
[2:49] Speaker 2: of the justices were in Europe, so it was all
[2:52] Speaker 2: done by exchanging memos, and from your reading of those memos,
[2:58] Speaker 2: did it seem like that she if Justice, was the
[3:01] Speaker 2: one really pushing it through.
[3:04] Speaker 3: And what astonishes me is that we know that for
[3:07] Speaker 3: years the Chief Judice stood and said, integrity of the
[3:11] Speaker 3: Court is my mission. This is the most important thing
[3:13] Speaker 3: to me. So we have stature. Yet it was the
[3:16] Speaker 3: Chief who decided to use the power of the Supreme
[3:20] Speaker 3: Court to try to attain his political ends. So this,
[3:23] Speaker 3: to me is what is so amazing, is that while
[3:26] Speaker 3: the Chief seemed to have this public persona of respect
[3:30] Speaker 3: and integrity of the court, he was the one that
[3:32] Speaker 3: instigated the unorthodox, untraditional use of the court in order
[3:38] Speaker 3: to accomplish a political result.
[3:40] Speaker 2: Did it seem as if some of the justices didn't recognize,
[3:45] Speaker 2: you know, the importance of what was happening here.
[3:47] Speaker 3: In retrospect, I think we can all tell this is
[3:50] Speaker 3: the start of the aggressive use by the Rabbers Court
[3:53] Speaker 3: of the shadow docket.
[3:54] Speaker 4: But the justices at the time didn't know that. They thought,
[3:57] Speaker 4: maybe this is a one off.
[3:59] Speaker 3: The court was not in session, they were in various
[4:02] Speaker 3: places around the world, and so they could have said
[4:05] Speaker 3: this is a one off a unique response that wouldn't
[4:09] Speaker 3: create any kind of precedent. That's what it seemed to
[4:11] Speaker 3: me from reading the memos. Obviously, now with a lens
[4:14] Speaker 3: of history, we look back and say we can see
[4:17] Speaker 3: a linear progression of the use of the Court's power
[4:20] Speaker 3: from various political ends. Has become much more common. But
[4:24] Speaker 3: at that time it was rare, and I don't think
[4:26] Speaker 3: that justices realized what a precedent this could create.
[4:30] Speaker 2: So the Chief Justice said that this was the most
[4:34] Speaker 2: expensive regulation ever imposed on the power sector, too big, costly,
[4:39] Speaker 2: and consequential for the Court not to act immediately. Yet
[4:43] Speaker 2: no justice, not a liberal, not a conservative, ever mentioned
[4:47] Speaker 2: the dangers on the opposite side of climate change.
[4:51] Speaker 4: There's no discussion of climate change.
[4:53] Speaker 3: There was no discussion of letting the challenges to the
[4:56] Speaker 3: regulation play out in court. This wasn't a discussion of
[5:00] Speaker 3: the usual legality of an administrative action. This was a
[5:05] Speaker 3: political reaction to the Obama administration saying this is too extensive,
[5:10] Speaker 3: too much, and no consideration of the equities on the
[5:14] Speaker 3: other side.
[5:15] Speaker 4: It's astonishing, the irony.
[5:17] Speaker 2: So Justice Kennedy figures that you know, well, when we
[5:21] Speaker 2: take this on the merits docket, it's going to end
[5:23] Speaker 2: up being struck down anyway. But then Justice Scalia passed away,
[5:28] Speaker 2: and so it would have been four to four, right,
[5:31] Speaker 2: and so Obama's power plan would have gone into effect.
[5:35] Speaker 3: Likely Obviously, we don't know because we're deprived of that
[5:39] Speaker 3: knowledge because of how history played out.
[5:41] Speaker 4: The other thing that's amazing about this is why the leak.
[5:44] Speaker 3: Now, you know, is this a leak from clerks who
[5:48] Speaker 3: have ported this material for ten years? Is this a
[5:52] Speaker 3: leak from the Supreme Court justice that's more and more
[5:55] Speaker 3: frustrated with how the court is acting. We don't know,
[5:59] Speaker 3: but it's certainly suggests that tensions are aflame within the
[6:04] Speaker 3: Supreme Court building.
[6:05] Speaker 2: Well, we've seen that with the various justices. I mean,
[6:08] Speaker 2: we saw Sodo Mayor criticizing Kavanaugh then coming out with
[6:13] Speaker 2: an apology, and we'll talk later about Clarence Thomas. And
[6:17] Speaker 2: we saw Justice Katanji Brown Jackson give an hour long
[6:20] Speaker 2: speech at Yale Law School which basically, you know, took
[6:24] Speaker 2: the shadow docket apart. So it's pretty much out in
[6:28] Speaker 2: the open.
[6:30] Speaker 3: Yeah, And this idea of you know, the friendship between
[6:33] Speaker 3: RBG and Justice Scolia is you know, a thing of
[6:36] Speaker 3: the distant past. And obviously these justices don't like each other.
[6:40] Speaker 3: They're sniping at each other, and now they're arguably possibly
[6:44] Speaker 3: making leads to the Supreme Court. So we don't have
[6:46] Speaker 3: a very unified or collegial court.
[6:48] Speaker 2: I've asked you often in the past, how much are
[6:51] Speaker 2: the justices influenced by public discussions of the issues? Public discourse,
[6:57] Speaker 2: and here they're relying on outside source is like a
[7:01] Speaker 2: blog post and television interviews to push their points.
[7:06] Speaker 3: And again, we try to teach our students, you know,
[7:08] Speaker 3: the Supreme Court justices consider they deliberate, they're influenced by
[7:14] Speaker 3: their predecessors, they try to understand the integrity of the
[7:19] Speaker 3: legal process. And then we're confronted by these memos, the
[7:24] Speaker 3: disparate memos that seem to suggest, oh, it's all about
[7:27] Speaker 3: politics and our knee jerk reaction to what we think
[7:30] Speaker 3: is dangerous for politics. So they're acting as politicians. So
[7:34] Speaker 3: what then differentiates the Court from the other institutions is
[7:39] Speaker 3: getting a little moneier here, And I think that's the
[7:41] Speaker 3: real downside of what they've done, is to sap the
[7:45] Speaker 3: Supreme Court of the respect that it should otherwise deserve.
[7:49] Speaker 4: In our part time system.
[7:51] Speaker 2: Yeah, And how many times have we heard the Chief
[7:54] Speaker 2: Justice talk about the Supreme Court is not a political institution.
[7:59] Speaker 2: We're different from the political branches. And here it's all
[8:03] Speaker 2: about politics.
[8:04] Speaker 4: It is.
[8:05] Speaker 3: And again I can understand why people are disillusioned, because
[8:10] Speaker 3: if the Court is thinking about politics, you know what
[8:13] Speaker 3: gives them the advantage as opposed to those in Congress.
[8:17] Speaker 2: Was this in any sense President Obama versus Chief Justice Roberts?
[8:24] Speaker 2: Because I mean Obama was one of just twenty two
[8:27] Speaker 2: Senators who voted against roberts confirmation, and here it seems
[8:32] Speaker 2: like the Chief Justice is eager to assert the authority
[8:36] Speaker 2: of the Supreme Court against Obama.
[8:39] Speaker 3: I don't know how much of this is reaction to
[8:43] Speaker 3: the friction between Chief Justice Roberts and President Obama. I
[8:47] Speaker 3: think it's more about President Obama's policies that he just
[8:50] Speaker 3: thought that the Democrat was wrongheaded in trying to sort
[8:56] Speaker 3: of quickly change the ground in terms of climate change
[9:01] Speaker 3: and limiting pollution, and saw his responsibility as the Court
[9:06] Speaker 3: to do something about the rapid change that was at
[9:11] Speaker 3: play within the Environmental Protection Agency.
[9:14] Speaker 2: Do you think that there'll be any fallout from this
[9:17] Speaker 2: publication of these notes?
[9:20] Speaker 3: Well, we saw that the first Jobs decision, if you remember,
[9:23] Speaker 3: was released by someone, and we knew what the top
[9:26] Speaker 3: decision was going to say overruling their right to an abortion,
[9:30] Speaker 3: and there was tighter security was imposed, but nothing really happened.
[9:34] Speaker 3: This is again we don't know if the leak is
[9:37] Speaker 3: from now or from ten years ago. There may be
[9:40] Speaker 3: some more security, but I think now in this age,
[9:43] Speaker 3: there won't be too many more steps that can be
[9:46] Speaker 3: undertaken by the Court to prevent this kind of leaking.
[9:50] Speaker 3: But the leaking isn't good for the court. Clearly, this
[9:53] Speaker 3: is a court that has lost its civility but also
[9:58] Speaker 3: its ability to be collegi.
[10:00] Speaker 2: And also I'm wondering if since now we have this
[10:03] Speaker 2: huge leak you mentioned the leak before, whether the justices
[10:07] Speaker 2: will be more reluctant to put things into writing that
[10:11] Speaker 2: can be leaked.
[10:13] Speaker 4: Oh.
[10:13] Speaker 3: Absolutely, I think that if you know that you're rough
[10:16] Speaker 3: drafting your comments Snyder or otherwise may end up in
[10:20] Speaker 3: the New York Times, You're going to think twice before
[10:23] Speaker 3: you write that down.
[10:24] Speaker 4: And that's also not good for the court. Right.
[10:25] Speaker 3: Sometimes it's really important to have a sharply worded memo,
[10:29] Speaker 3: some kind of comments about the wisdom of a particular
[10:32] Speaker 3: argument that another justices may write, and the justices will
[10:36] Speaker 3: be more restrained in showing candor for fear of the disclosure.
[10:40] Speaker 2: Okay, stay with me. Hal Coming up next, We're going
[10:44] Speaker 2: to talk about a speech by Justice Clarence Thomas last
[10:49] Speaker 2: week that was supposed to commemorate the two hundred and
[10:52] Speaker 2: fiftieth anniversary of the Declaration of Independence. It started out
[10:57] Speaker 2: that way and then devolved into a harsh critique of progressivism.
[11:04] Speaker 2: I'm June Grosso and you're listening to Bloomberg. This year
[11:11] Speaker 2: marks the two hundred and fiftieth anniversary of our nation's independence,
[11:16] Speaker 2: and last Wednesday, Justice Clarence Thomas gave an hour long
[11:20] Speaker 2: speech at the University of Texas at Austin Law School
[11:24] Speaker 2: to talk about the Declaration of Independence and its importance
[11:28] Speaker 2: in American history. But the speech devolved into a harsh
[11:32] Speaker 2: critique of progressivism.
[11:34] Speaker 5: Progressivism seeks to replace the basic premises of the Declaration
[11:39] Speaker 5: of Independence and hence our form of government. It holds
[11:44] Speaker 5: that our rights and our dignities come not from God
[11:48] Speaker 5: but from government. It requires of the people a subservience
[11:54] Speaker 5: and weakness incompatible with a Constitution premise on the transcendent
[11:59] Speaker 5: or origin of our rights.
[12:01] Speaker 2: I've been talking to Professor Harold Krant other Chicago Kent
[12:05] Speaker 2: College of Law, how this was a very strange speech.
[12:09] Speaker 2: Thomas said that Stalin, Hitler, Mussolini, and Mao were all
[12:14] Speaker 2: intertwined with the rise of progressivism, as was racial segregation, eugenics,
[12:20] Speaker 2: and other evils.
[12:22] Speaker 3: I do think there's a tie here with what Justice Thomas.
[12:27] Speaker 3: His speech is strange speech at Texas because both with
[12:31] Speaker 3: respect to the Roberts decision and with respect to Thomas,
[12:37] Speaker 3: there is such a deep seated hatred for the administrative state,
[12:41] Speaker 3: you know, and Justice Thomas calls it progressivism. He says
[12:45] Speaker 3: that it didn't start with President Wilson, but he claims
[12:48] Speaker 3: it did. But nonetheless, what he's talking about is this
[12:51] Speaker 3: idea of these experts and government, and both Chief Justice
[12:55] Speaker 3: Roberts and Justice Thomas sort of events a real distrust
[13:00] Speaker 3: for anybody who believes in bureaucratic government, anybody who relies
[13:05] Speaker 3: upon the government to actually respond to our nation's woes
[13:11] Speaker 3: and to try to help dig get the country.
[13:14] Speaker 2: And then it devolved into blaming progressives for all the
[13:19] Speaker 2: ills of society. I mean he said that Stalin, Hitler, Mussolini,
[13:25] Speaker 2: and now we're all in intertwine with the rise of progressivism,
[13:28] Speaker 2: as was racial segregation, eugenics, and other evils.
[13:33] Speaker 3: I mean, it's frightening that a Supreme Court justice would
[13:37] Speaker 3: say this, And that's the first thing to note, because
[13:39] Speaker 3: there are so many things that they're wrong with the
[13:42] Speaker 3: comment even about Wilson and progressivism, let alone about Mao
[13:48] Speaker 3: and Hitler and the others, because that would happened with totalitarianism.
[13:53] Speaker 4: They don't trust bureaucrats either.
[13:56] Speaker 3: They trust only themselves, and we know about that from
[13:59] Speaker 3: our own current existence in the United States.
[14:03] Speaker 1: Right.
[14:03] Speaker 3: It's not that President Trump is relying upon bureaucrats. He
[14:07] Speaker 3: relies upon himself. And that's the same thing true with
[14:10] Speaker 3: the world figures listed by Justice Thomas. So this was
[14:14] Speaker 3: a screed. It's a screed divorced of any kind of
[14:19] Speaker 3: real salience in terms of how the world is ordered
[14:22] Speaker 3: and what motivated these national leaders. So it's worriesome from
[14:26] Speaker 3: a Supreme Court justice in particular, that he would be
[14:30] Speaker 3: so divorced from any kind of measured assessment of the
[14:34] Speaker 3: role of progressivism in our country. I think a lot
[14:38] Speaker 3: of people would say, a lot of good came from
[14:40] Speaker 3: progressivism in our country, even if there was some negative
[14:44] Speaker 3: aspects as well.
[14:45] Speaker 4: But one has to wonder.
[14:47] Speaker 2: It sort of echoes the way he interprets history in
[14:51] Speaker 2: his opinions, picking and choosing from what he wants and
[14:55] Speaker 2: which often, in my mind, leads to a tortured view
[15:00] Speaker 2: of history. And as you mentioned here, he did it
[15:03] Speaker 2: with President Wilson and progressivism.
[15:05] Speaker 3: Yeah, progressivism started in the late nineteenth century. It's reaction
[15:09] Speaker 3: against Robert Barns and against the huge corporations that dominated
[15:14] Speaker 3: the United States at that time, and so it was
[15:17] Speaker 3: a reform movement. Now, obviously today in the Supreme Court,
[15:21] Speaker 3: there's a lot of skepticism about entrenched bureaucracy and whether
[15:25] Speaker 3: the administrative agencies can do good or bad for people
[15:28] Speaker 3: and for companies. But you know, again, progressivism was a
[15:32] Speaker 3: constraint upon large corporations, and many people think that mister
[15:37] Speaker 3: of agencies need to continue that kind of regulation in
[15:42] Speaker 3: order to prevent sort of rapacious organizations from hurting individuals
[15:48] Speaker 3: in this country where they're farmers or small business folks,
[15:50] Speaker 3: et cetera.
[15:51] Speaker 4: Et cetera.
[15:52] Speaker 2: This is, you know, beyond his speech. But I've always
[15:56] Speaker 2: wondered how Justice Thomas, who was the beneficiary of firmative action,
[16:03] Speaker 2: as was Justice sort of mayor why is he so conservative,
[16:08] Speaker 2: I mean as far right as you can get. Yeah.
[16:11] Speaker 3: No, I think part of it is Justice Thomas has
[16:13] Speaker 3: always been proud of what he's done to succeed in
[16:16] Speaker 3: this environment, and he doesn't want to be seen as
[16:19] Speaker 3: a product of affirmative action. He wants it to be
[16:22] Speaker 3: based upon his own merit, and he has accomplished a
[16:25] Speaker 3: great deal in his career, there's no question about it.
[16:29] Speaker 3: But I think that his some of his visceral reaction
[16:32] Speaker 3: of posing affirmative action is just because of the fact
[16:35] Speaker 3: that he doesn't think anybody should be a sort of
[16:38] Speaker 3: assumed to be an affirmative action baby, but rather they
[16:41] Speaker 3: want to be seen as pulling their own weight, as
[16:45] Speaker 3: rising because of their own hard work and intelligence, and
[16:49] Speaker 3: certainly he's evinced those in his career.
[16:51] Speaker 4: I'd have another comment.
[16:53] Speaker 3: I think that you wonder with a speech like this,
[16:56] Speaker 3: whether Justice Thomas knows that he has one year left
[17:01] Speaker 3: on the court if he wants to give President Trump
[17:03] Speaker 3: another nomination. And I think Alito would be in the
[17:07] Speaker 3: same vein, and they are considering and playing in their
[17:11] Speaker 3: own minds, their own individual interests in staying on the Court,
[17:15] Speaker 3: but their political interests of allowing President Trump to have
[17:19] Speaker 3: one or two more Supreme Court nominees before the end
[17:22] Speaker 3: of the term. So we may be seeing this kind
[17:25] Speaker 3: of behavior in this kind of speech because he's sort
[17:28] Speaker 3: of wrestling with himself about what is the right thing
[17:31] Speaker 3: to do in terms of his political leanings.
[17:34] Speaker 2: I want to turn back to the shadow docket where
[17:37] Speaker 2: we started. We've seen many of the liberal justices criticize
[17:41] Speaker 2: what's happening with the shadow docket in their opinions, but
[17:45] Speaker 2: also lately a lot in public. There was an hour
[17:48] Speaker 2: long speech by Justice Katanji Brown Jackson at Yale where
[17:52] Speaker 2: she really took it apart. And now we have these
[17:55] Speaker 2: leaked memos with all this sunlight on the shadow docket,
[18:00] Speaker 2: do you think that will see less that the Supreme
[18:02] Speaker 2: Court will act more judiciously, shall we say, with shadow
[18:07] Speaker 2: docket decisions, for example, they've turned some of them into
[18:11] Speaker 2: regular cases, like the birthright citizenship.
[18:15] Speaker 4: Yeah.
[18:15] Speaker 3: I think that Justice Jackson's speech, in particular, they shed
[18:19] Speaker 3: light on something that only some professors have been talking
[18:23] Speaker 3: about four years. What are the proper standards to use
[18:27] Speaker 3: in terms of the stay motions that go before the
[18:30] Speaker 3: Supreme Court. How do you balance equities when there's no
[18:33] Speaker 3: time for a full briefing on the matter. And I
[18:37] Speaker 3: think that the public discussion that has followed those kinds
[18:40] Speaker 3: of events is only for good, and I think it
[18:43] Speaker 3: will at least modify to some extent shadow docket with
[18:46] Speaker 3: the hope of taking away the shadow, making things more observable, transparent,
[18:51] Speaker 3: so that people understand what the Court can do, and
[18:55] Speaker 3: that the traditional sort of idea of balance of the
[18:58] Speaker 3: equities and the merits can be seen as something every
[19:02] Speaker 3: judge has to do, whether you're on a preliminary in
[19:04] Speaker 3: junction in the trial court or whether you're in the
[19:07] Speaker 3: Supreme Court deciding what to do when you're presented with
[19:10] Speaker 3: an emergency stay. So I don't think there's going to
[19:13] Speaker 3: be a quick change, but I think that the public
[19:17] Speaker 3: discussion and the backlash to what The New York Times
[19:21] Speaker 3: has published will conceivably require the Court to act in
[19:25] Speaker 3: a more principled, consistent manner, and that's good for all
[19:28] Speaker 3: of us.
[19:29] Speaker 2: And also there is the fact that the lower courts
[19:32] Speaker 2: are confused themselves about a shadow docket opinion, what part
[19:37] Speaker 2: of it is precedent binding? Supreme Court President that they
[19:41] Speaker 2: have to follow, and Justice gorse It said, you have
[19:43] Speaker 2: to follow our shadow docket decisions just like any other decision.
[19:47] Speaker 2: But you know, when there's no explanation of what it's
[19:50] Speaker 2: based on, the lower courts are left wondering and not
[19:54] Speaker 2: knowing what to apply.
[19:55] Speaker 3: Really, I was shocked by Justice course or just content.
[19:59] Speaker 3: I mean, how can anybody follow the shadow docket as
[20:03] Speaker 3: a precedent when there's been no argument, when the Court
[20:06] Speaker 3: is not being clear about its view of the merits.
[20:09] Speaker 3: It's really, I think irresponsible for Justice Gorsuch to make
[20:13] Speaker 3: that claim. But again, you understand it because the Court
[20:16] Speaker 3: is trying to change people's minds and change lower court
[20:20] Speaker 3: decisions through the shadow docket, and that's just not appropriate.
[20:23] Speaker 3: That's why we have transparency, oral arguments, written decisions, so
[20:27] Speaker 3: that people can really focus and know when a court's
[20:31] Speaker 3: decision is binding and when it's not.
[20:33] Speaker 2: Justice Soda Mayor a couple of weeks ago, the attention
[20:37] Speaker 2: was focused on what she said about Kavanaugh, but she
[20:40] Speaker 2: also said about the shadow docket. She sort of said
[20:43] Speaker 2: what you just said, which is we've brought it upon ourselves.
[20:47] Speaker 2: And what Justice Jackson said, because they've been granting these
[20:50] Speaker 2: and so the more wins, the more emergency petitions you're
[20:54] Speaker 2: going to have. So she said, we brought it on ourselves.
[20:58] Speaker 4: You know, the Court certainly has.
[21:00] Speaker 3: It's basically, it was so extraordinary for the Court to
[21:05] Speaker 3: issue any kind of decision that wasn't on the merits
[21:11] Speaker 3: before the last ten years. But the signal that the
[21:14] Speaker 3: Court has given is come, if you're really upset, come
[21:18] Speaker 3: to us, and if we happen to agree with you politically,
[21:20] Speaker 3: we may enter the fray even before we can have
[21:23] Speaker 3: a full decision. Now, obviously, in terms of an emergency,
[21:27] Speaker 3: the Court has granted Schara before judgment, but that's to
[21:31] Speaker 3: consider a case on the merits, not to engage in
[21:34] Speaker 3: this sort of slap dash decision denying or approving of
[21:38] Speaker 3: a stay for reasons that are unarticulated. That's new that
[21:43] Speaker 3: was started by I gathered by the power plant decision
[21:46] Speaker 3: of twenty sixteen, and we are here and we've seen
[21:50] Speaker 3: that custom continue and it's just not good for transparency,
[21:55] Speaker 3: it's not good for respect for the court. And I
[21:58] Speaker 3: hope that the Court will be push to sort of
[22:01] Speaker 3: revise its policies and be a little more consistent with
[22:05] Speaker 3: which kind of equity principles should demand a stay and
[22:10] Speaker 3: which should not.
[22:12] Speaker 2: Otherwise, and I'm sure the Chief thinks about his legacy
[22:16] Speaker 2: a great deal. Otherwise, the Roberts Court will be known
[22:20] Speaker 2: as the court that the shadow docket developed under. And
[22:23] Speaker 2: that's not something I think that any justice would want.
[22:27] Speaker 3: They brought it on themselves, and the Chief Justice again
[22:31] Speaker 3: the irony, being the one who cared most about the
[22:33] Speaker 3: reputation and the statue of the court, and he's the
[22:36] Speaker 3: one that led the court down this path.
[22:39] Speaker 4: Amazing.
[22:39] Speaker 2: This is in the category of you can't make these
[22:42] Speaker 2: things up. Thanks so much, Al, It's always great to
[22:44] Speaker 2: have you on. That's Professor Harold Krent of the Chicago
[22:48] Speaker 2: Kent College of Law. Coming up next on the Bloomberg
[22:51] Speaker 2: Law Show. The Supreme Court has handed Chevron a victory,
[22:56] Speaker 2: but Louisiana and the environment a loss. I'm June Grosso
[23:01] Speaker 2: and you're listening to Bloomberg.
[23:04] Speaker 1: This is Bloomberg Law with June grosseo from Bloomberg Radio.
[23:09] Speaker 2: The Supreme Court handed a huge win to oil and
[23:13] Speaker 2: gas companies fighting the lawsuits over coastal land loss and
[23:17] Speaker 2: environmental degradation in Louisiana. A unanimous decision gives the companies
[23:23] Speaker 2: a new day in federal court after a state jury
[23:27] Speaker 2: had ordered Chevron to pay upwards of seven hundred and
[23:31] Speaker 2: forty million dollars to clean up damage to the state's coastline,
[23:35] Speaker 2: finding it had violated Louisiana's regulations governing coastal resources for
[23:41] Speaker 2: decades by failing to restore wetlands impacted by dredging canals,
[23:46] Speaker 2: drilling wells, and billions of gallons of wastewater dumped into
[23:51] Speaker 2: the marsh. The case is one of dozens of lawsuits
[23:54] Speaker 2: filed in twenty thirteen alleging that oil giants, including Chevron
[23:59] Speaker 2: and A, violated state environmental laws for decades. Joining me
[24:05] Speaker 2: is an expert in environmental law, Pat Parento, a professor
[24:09] Speaker 2: at the Vermont Law and Graduate School. Pat, this was
[24:12] Speaker 2: about the venue or where the lawsuit should be heard
[24:17] Speaker 2: in federal court or state court. Explain why that matters
[24:21] Speaker 2: to Chevron and the oil companies.
[24:23] Speaker 1: For the oil companies, they have this belief that they're
[24:28] Speaker 1: going to get a better deal in federal court than
[24:31] Speaker 1: they would get in state court. I'm not sure that's true.
[24:34] Speaker 1: I guess we will find out with the next stage
[24:38] Speaker 1: of the Placamines Parish case. But here's the thing. Federal
[24:44] Speaker 1: courts apply state law. When a case is removed from
[24:48] Speaker 1: state court to federal court. The federal courts under the
[24:52] Speaker 1: eerie doctrine which we all learn in law school, a
[24:55] Speaker 1: federal courts must apply the controlling state law. And that's
[24:59] Speaker 1: both statutory law and common law, both of which are
[25:04] Speaker 1: fairly distinct in Louisiana. And so the law doesn't change
[25:10] Speaker 1: when you change venue, and the facts don't change. So
[25:15] Speaker 1: the reason that this case got to the Supreme Court
[25:19] Speaker 1: is because the oil companies lost in the state court
[25:24] Speaker 1: to the tune of seven hundred and seventy four million dollars. Now,
[25:29] Speaker 1: there are a dozen or more other cases pending, so
[25:33] Speaker 1: the final price tag for all this is enormous. But
[25:37] Speaker 1: here's the thing. The allegation is that the companies were
[25:42] Speaker 1: violating state law repeatedly, deliberately after being warmed. They were
[25:49] Speaker 1: discharging highly contaminated water into the marsh. They were not
[25:54] Speaker 1: restoring and recovering the marsh. They weren't even getting the
[25:57] Speaker 1: permits they were required to get. And this is over
[26:00] Speaker 1: a very long period of time. So, yeah, the companies
[26:05] Speaker 1: think they might do better in federal court. But the
[26:08] Speaker 1: jury in federal court is going to be Louisiana's who've
[26:12] Speaker 1: been living with this, and the law, as I say,
[26:15] Speaker 1: will be Louisiana law. So the companies may be whistling
[26:20] Speaker 1: in the dark with this idea that they're going to
[26:22] Speaker 1: win because it's moved to federal court.
[26:25] Speaker 2: And the Louisiana Attorney General said that it was a
[26:28] Speaker 2: jury from one of the most conservative pro oil and
[26:32] Speaker 2: gas communities in the country. And it doesn't matter whether
[26:35] Speaker 2: the case is in state court of federal court. I'm
[26:38] Speaker 2: confident the outcome will be the same. So the argument
[26:41] Speaker 2: is that back in World War Two they were working
[26:46] Speaker 2: for the government. Is that the basic argument?
[26:49] Speaker 1: Yes, yes, it is. And the idea was that the
[26:52] Speaker 1: companies were refining the oil that they were taking from
[26:56] Speaker 1: the Gulf and turning it into fuel for them military
[27:00] Speaker 1: airplanes and so forth. And you know, the idea that
[27:06] Speaker 1: these companies are still agents of the federal government sixty
[27:11] Speaker 1: years later is crazy and a sort of a common
[27:15] Speaker 1: sense way of looking at it. I mean, I read
[27:17] Speaker 1: the opinion, I understand the kind of anal analysis that
[27:24] Speaker 1: we sometimes see with statutory language. In this case, the
[27:29] Speaker 1: words relating to well, yeah, says Justice Thomas, the oil
[27:35] Speaker 1: and gas development that's ongoing in the Gulf is quote
[27:40] Speaker 1: related to the original contracts requiring that the oil be
[27:46] Speaker 1: refined into fuel. But boy, is that a stretch for
[27:51] Speaker 1: ordinary Americans to see the law working in that way.
[27:55] Speaker 1: And here's another thing that strikes me. There's something wrong
[27:59] Speaker 1: with our system, our judicial legal system, where we have
[28:04] Speaker 1: to wait years with a trial and a verdict before
[28:10] Speaker 1: we get an answer to the question which court were
[28:13] Speaker 1: we supposed to be in? I mean, why couldn't you
[28:16] Speaker 1: have either gotten that answer more expeditiously or in the alternative,
[28:22] Speaker 1: why couldn't the court have said, sorry, oil companies, it's
[28:27] Speaker 1: too late in the day for you to be arguing
[28:30] Speaker 1: that this case belonged in federal court. After all the
[28:33] Speaker 1: effort that went into the state court verdict.
[28:38] Speaker 2: Again, you took away one of my questions. You answered
[28:41] Speaker 2: it before. That's fine, But what was surprising to me
[28:45] Speaker 2: is that it was a unanimous verdict eight to zero.
[28:49] Speaker 2: Because Justice Alito recused himself because he owned stock in
[28:54] Speaker 2: I think it's kinicco Phillips. Why didn't the liberal justices
[28:59] Speaker 2: say this doesn't sound right.
[29:01] Speaker 1: Yeah, I mean they knew they were going to lose,
[29:04] Speaker 1: I suppose, but that's the case oftentimes. Maybe they thought, well,
[29:10] Speaker 1: in a technical you know, sort of which court, which
[29:13] Speaker 1: venue question like this, maybe we'll side with our more
[29:17] Speaker 1: conservative colleagues in the vain hope. I think that they
[29:22] Speaker 1: will someday come our way on a close call. Maybe
[29:26] Speaker 1: that's what was going on. But frankly, the fact that
[29:30] Speaker 1: no one bothered on the court, bothered to call out
[29:34] Speaker 1: the notion that there is still some kind of principal
[29:39] Speaker 1: agent relationship between these companies today and what happened in
[29:45] Speaker 1: World War Two. That strikes me, as you know, hard
[29:49] Speaker 1: to reconcile, hard to understand the logic and the rationale
[29:56] Speaker 1: of a result like this. Again, just think of all
[29:59] Speaker 1: the effort it went into the case. There wasn't any
[30:02] Speaker 1: suggestion by the way that the companies aren't liable. This
[30:06] Speaker 1: isn't like some of the other cases that we've talked
[30:09] Speaker 1: about where there's a question of federal law preempting state law.
[30:13] Speaker 1: That wasn't an issue here, And the Court seems to
[30:17] Speaker 1: be saying, we don't really care about the fact that
[30:20] Speaker 1: you've invested all this time and effort to get this verdict.
[30:24] Speaker 1: We're just going to make you go back to square
[30:26] Speaker 1: one and do it all over again.
[30:29] Speaker 2: And also, this reverses a decision of the Fifth Circuit, which,
[30:34] Speaker 2: as you know, is a very very very conservative court.
[30:40] Speaker 1: Yeah, if you can't win in the Fifth Circuit, you
[30:43] Speaker 1: should turn in your law license. But when it went
[30:46] Speaker 1: on bank to the full Fifth Circuit, the vote was
[30:50] Speaker 1: much closer, but it was still a majority, as you say,
[30:54] Speaker 1: of the most conservative court in the country next to
[30:57] Speaker 1: the US Supreme Court. And you know the fact that
[31:00] Speaker 1: a majority of those judges thought, now, I don't think
[31:04] Speaker 1: we should, you know, toss out the verdict. You know,
[31:07] Speaker 1: this jury sat for months and heard all this testimony
[31:12] Speaker 1: and sorted.
[31:12] Speaker 5: It all out.
[31:13] Speaker 1: We're not just gonna throw that out on the you know,
[31:17] Speaker 1: a transparent attempt by the oil companies to force the
[31:21] Speaker 1: state and the parishes to go back through the gauntlet
[31:27] Speaker 1: of litigation over again because delay works in their favor.
[31:31] Speaker 1: They're laughing all the way to the bank over this.
[31:34] Speaker 1: Maybe they are thinking someday there'll be a day of reckoning,
[31:38] Speaker 1: but not today, and not as long as we can
[31:41] Speaker 1: find ways of avoiding it.
[31:43] Speaker 2: The court vacated and remanded the Fifth Circuit's decision. So
[31:49] Speaker 2: then does this reverse that seven hundred and forty plus
[31:53] Speaker 2: million dollar verdict that Louisiana got it?
[31:57] Speaker 1: Does it throws it out? And any other question is
[32:00] Speaker 1: what happens to all the other cases that are pending
[32:03] Speaker 1: from the other parishes coastal communities in Louisiana. Again, there's
[32:08] Speaker 1: over a dozen of these cases. Do they all have
[32:11] Speaker 1: to go to federal court? Answer? Probably yes? And how
[32:15] Speaker 1: is that going to be managed? You had these individual
[32:18] Speaker 1: cases proceeding in state court with different plaintiffs, different parishes
[32:25] Speaker 1: bringing them, and so the claims are going to be similar,
[32:29] Speaker 1: but the facts are going to be different in terms
[32:31] Speaker 1: of the damage and so forth. So are you going
[32:33] Speaker 1: to then smush all of these cases into one in
[32:38] Speaker 1: the federal court? How is the federal court supposed to
[32:41] Speaker 1: manage a situation like this? Are they going to break
[32:44] Speaker 1: these cases into smaller units? Are they going to have
[32:48] Speaker 1: what sometimes you have in these mass tort cases, sort
[32:51] Speaker 1: of example cases, and then you get rulings in an
[32:55] Speaker 1: example case and that carries forward into other cases. The
[32:59] Speaker 1: case Mann challenge that this kind of a decision presents
[33:03] Speaker 1: as significant.
[33:04] Speaker 2: So could you explain that a legal term you used.
[33:08] Speaker 1: Smush, Yeah, consolidate.
[33:11] Speaker 2: Yes, smush actually sounded much better. So Pat tell us
[33:17] Speaker 2: about the damage to the coastline that the parishes are
[33:20] Speaker 2: suing over.
[33:21] Speaker 1: So they're oil companies in their quest to extract, you know,
[33:26] Speaker 1: every molecule of crude oil they can from the gulf,
[33:29] Speaker 1: they have to do a bunch of things. They have
[33:31] Speaker 1: to dig these enormous canals to get access to the
[33:35] Speaker 1: gulf and to bring rigs, you know, take them out
[33:38] Speaker 1: to the gulf and bring them in when they're storms
[33:40] Speaker 1: and things like that. So there's constant back and forth
[33:43] Speaker 1: of vessel traffic and equipment and so forth. As these
[33:47] Speaker 1: canals over time widen. This is a phenomenon that if
[33:52] Speaker 1: you had a satellite imagery you could see it instantaneously.
[33:56] Speaker 1: And these canals that start off, I don't know, one
[33:58] Speaker 1: hundred yards wide, they can become a half a mile wide,
[34:01] Speaker 1: and that's destroying the marsh. So that's one. Then they're
[34:05] Speaker 1: all this process water, all this chemicals and so forth
[34:09] Speaker 1: that they're using in the oil and gas extraction process
[34:14] Speaker 1: that gets discharged into the marsh that kills the marsh,
[34:18] Speaker 1: and so Louisiana law says you're supposed to get permits
[34:22] Speaker 1: for these various activities canal construction, discharge of polluted water,
[34:29] Speaker 1: and they didn't do that. They're not denying that they
[34:32] Speaker 1: didn't do that. And then they're also required to restore
[34:36] Speaker 1: marsh that has been damaged from their activities. They didn't
[34:39] Speaker 1: do that either. So three different ways in which the
[34:43] Speaker 1: companies have been so far found liable for violating state
[34:47] Speaker 1: law causing this kind of damage. And again that's not
[34:51] Speaker 1: going to change. The law is not going to change.
[34:53] Speaker 1: The facts that were asserted in the state courts are
[34:56] Speaker 1: going to be the same facts that are asserted in
[34:59] Speaker 1: federal The rules of evidence differ slightly between states in
[35:05] Speaker 1: federal court, but essentially the same kind of evidence provided
[35:09] Speaker 1: the expert testimony is accepted in federal court, and there
[35:13] Speaker 1: are rules about that as well. But nothing I've seen
[35:16] Speaker 1: suggests that this evidence is going to be precluded or
[35:19] Speaker 1: barred from the federal case. So we're just going to
[35:22] Speaker 1: have a deja vous redo what's already been done.
[35:26] Speaker 2: And I want to point out that this litigation in
[35:29] Speaker 2: Louisiana crosses political lines. You have a Republican ag and
[35:34] Speaker 2: the Republican governor backed the suits when he was AG.
[35:38] Speaker 1: Yes, and I was at a conference at Tulane listening
[35:42] Speaker 1: to the backstory on this case. You know, the politics
[35:45] Speaker 1: of this are incredibly difficult, right, So no surprise or
[35:50] Speaker 1: maybe a bulletin for some Louisiana is an oil and
[35:54] Speaker 1: gas state, and these communities have benefited from oil and
[35:58] Speaker 1: gas development, jobs, money, tax revenue. So it's not as if,
[36:04] Speaker 1: you know, you've got a bunch of Sierra Clubbers down
[36:08] Speaker 1: there in Louisiana bringing lawsuits. You know, these are communities
[36:11] Speaker 1: that understand the value of oil and gas but are
[36:14] Speaker 1: simply saying there's a right way to do it and
[36:17] Speaker 1: a wrong way to do it, and the way you
[36:19] Speaker 1: did it was wrong.
[36:21] Speaker 2: So what happens next.
[36:23] Speaker 1: Next you see these cases going to federal court in
[36:26] Speaker 1: the probably the Southern District of Louisiana. You know there's
[36:30] Speaker 1: gonna be questions about how much of the evidence that's
[36:32] Speaker 1: already been adduced in the state case could possibly be admitted.
[36:37] Speaker 1: I'm sure the lawyers are right now trying to figure
[36:40] Speaker 1: out the plaintiffs lawyers, the Attorney general and others are
[36:43] Speaker 1: trying to figure out do we really have to redo everything?
[36:47] Speaker 1: I don't think the oil companies are going to stipulate
[36:50] Speaker 1: too much, but is there a way to get some
[36:53] Speaker 1: of this evidence into federal court without having to, you know,
[36:57] Speaker 1: reinvent the wheel. I don't know enough of about how
[37:00] Speaker 1: that kind of litigation works to judge how that's going
[37:04] Speaker 1: to be done. You know, right now, the assumption is
[37:08] Speaker 1: you're going to have to pick a jury, You're going
[37:12] Speaker 1: to have to update all of the information, which means
[37:15] Speaker 1: the damages are going to be increased from what they
[37:18] Speaker 1: were in the state court and so forth. So there'll
[37:21] Speaker 1: be supplemental pleadings and motions and so forth, the usual
[37:24] Speaker 1: kind of litigation stuff. But eventually you're going to have
[37:28] Speaker 1: a trial in front of a jury, and now you're
[37:31] Speaker 1: going to start over and try to impanel a neutral
[37:34] Speaker 1: jury that hasn't heard anything about any of this stuff.
[37:38] Speaker 1: It just boggles the mind to think about why is
[37:41] Speaker 1: this so complicated? You know, if there's a claim that
[37:45] Speaker 1: the company's violated state law, why can't you adjudicate that
[37:49] Speaker 1: once in one court and be done with it. But
[37:52] Speaker 1: that's where we are today. We're going to have to
[37:54] Speaker 1: do it again.
[37:55] Speaker 2: So it's thirteen years of litigation and countings for your insights. Pat,
[38:01] Speaker 2: that's Professor Pat Parento of the Vermont Law and Graduate School.
[38:06] Speaker 2: And that's it for this edition of The Bloomberg Law Show.
[38:08] Speaker 2: Remember you can always get the latest legal news on
[38:11] Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
[38:15] Speaker 2: and at www dot bloomberg dot com slash podcast, Slash Law,
[38:21] Speaker 2: And remember to tune into The Bloomberg Law Show every
[38:23] Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
[38:27] Speaker 2: and you're listening to Bloomberg

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