# Supreme Court 2025 Analysis & Luigi Mangione Wants Evidence Thrown Out

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 20 Dec 2025, 42 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/ab87cc0c-1b24-4946-8736-b3b90159fb9a/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Constitutional law expert David Super discusses the top Supreme Court decisions of 2025 involving everything from LGBTQ rights to nationwide injunctions. Then former federal prosecutor Robert Mintz, discusses Luigi Mangione’s attempt to get key evidence thrown out of his eventual murder trial. 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: The Supreme Court handed down sixty six opinions on its
[0:12] Speaker 2: regular docket in twenty twenty five, with significant decisions concerning religion,
[0:17] Speaker 2: free speech, reverse discrimination, LGBTQ rights, gun regulation, parental rights,
[0:25] Speaker 2: nationwide injunctions, and agency authority. Six cases were decided by
[0:30] Speaker 2: a court split ideologically six to three, with the conservative
[0:34] Speaker 2: justices in the majority and the liberal justices in descent.
[0:39] Speaker 2: Those were cases over hot button social issues like a
[0:42] Speaker 2: ban on gender affirming care for miners and religious accommodations
[0:47] Speaker 2: and education. Joining me to analyze the decisions is constitutional
[0:51] Speaker 2: law expert David Super, a professor at Georgetown Law. David,
[0:56] Speaker 2: let's start with the case over religious charter schools that
[1:00] Speaker 2: you have lifted the long standing constitutional limits on government
[1:04] Speaker 2: support for religion. And you can see the divide between
[1:07] Speaker 2: the conservative and liberal justices in many of the cases
[1:11] Speaker 2: dealing with religion.
[1:12] Speaker 3: And you say, oh, we're a religious school, it's like, Oh, no,
[1:16] Speaker 3: can't do that. That's too much, that's scary, We're not
[1:20] Speaker 3: going to do that. And our cases have made very
[1:24] Speaker 3: clear and I think those are some of the most
[1:25] Speaker 3: important cases we've had of saying you can't treat religious
[1:29] Speaker 3: people and religious institutions and religious speech as second class
[1:35] Speaker 3: in the United States.
[1:36] Speaker 4: Because the essence of the Establishment Clause was we're not
[1:40] Speaker 4: going to pay religious leaders to teach their religion. That
[1:48] Speaker 4: was is and has always been the essence. And here
[1:51] Speaker 4: we're paying Catholic leaders Catholic teachers.
[1:57] Speaker 2: This was an unusual lass for religious plays at the Court,
[2:01] Speaker 2: but there were unusual circumstances, So tell us what happened.
[2:05] Speaker 5: Ultimately, nothing happened. There was an effort to create a
[2:10] Speaker 5: religious charter school in Oklahoma. The Oklahoma Supreme Court, reading
[2:16] Speaker 5: the Supreme Court's precedence on this, felt that that was
[2:21] Speaker 5: accessive entanglement of church and state, that it was violating
[2:25] Speaker 5: the Establishment Clause by using public resources to promote religion.
[2:29] Speaker 5: It gets to the Supreme Court and the Court splits
[2:33] Speaker 5: four to four, which means that the Oklahoma Supreme Court
[2:38] Speaker 5: decision is affirmed and the charter school is shut down. However,
[2:44] Speaker 5: the reason the Court had only eight justices participating is
[2:48] Speaker 5: because Justice Barrett accused herself, presumably because she's a former
[2:55] Speaker 5: faculty member at Notre Dame and a Notre Dame Clinic
[2:59] Speaker 5: was involved in much of this work. Apparently some of
[3:02] Speaker 5: her friends were. If a similar case returns of the
[3:05] Speaker 5: Court where all nine justices were able to participate, based
[3:09] Speaker 5: on her past writings, anticipate Justice Barrett would vote in
[3:13] Speaker 5: favor of the charter school and they would win the
[3:16] Speaker 5: war even though they lost this battle.
[3:18] Speaker 2: You anticipated my question because the supporters of charter schools
[3:23] Speaker 2: here say the fight isn't over, so they're likely to
[3:25] Speaker 2: bring another case to the court.
[3:27] Speaker 5: Oh. Yes, the efforts to expand state subsities or religion
[3:32] Speaker 5: are quite well funded and quite energetic, and in many respects,
[3:36] Speaker 5: it was a strategic blunder to bring it from a
[3:39] Speaker 5: state where one of the justices had connections. But there
[3:43] Speaker 5: are plenty of other states that they can do this with,
[3:46] Speaker 5: and the longer she's on the court, the fewer of
[3:49] Speaker 5: these pre court connections will entangle her.
[3:53] Speaker 2: Now, let's turn to Catholic Charities Bureau versus Wisconsin Labor
[3:57] Speaker 2: and Industry Review Commission, And this is about tax exempt
[4:02] Speaker 2: religious organizations.
[4:04] Speaker 5: Yes, this is kind of an odd case where Wisconsin
[4:09] Speaker 5: had an exception from required contributions for certain kinds of
[4:15] Speaker 5: religious organizations, but concluded that Catholic charities didn't qualify because
[4:22] Speaker 5: they provided services of a secular kind. And the Supreme
[4:28] Speaker 5: Court looked at this and said, we do not want
[4:33] Speaker 5: states to be making fine tuned decisions about how religious
[4:37] Speaker 5: organizations carry things out, distinguishing between those with a lot
[4:41] Speaker 5: of proselytizing, a little proselytizing, and no proselytizing. This is
[4:46] Speaker 5: too much intrusion of the state into religion. This has
[4:51] Speaker 5: all sorts of potential for favoring one religious group for another.
[4:55] Speaker 5: There are some religions that are absolutely opposed to proselytizing,
[5:00] Speaker 5: where it's the central act of religious devotion, and there's
[5:03] Speaker 5: a bunch in between, and the Court does not want
[5:06] Speaker 5: distinctions drawn on that basis.
[5:09] Speaker 2: I was surprised that it was a unanimous decision. I mean,
[5:13] Speaker 2: do you find that surprising?
[5:16] Speaker 5: I really didn't. I understand and respect the intentions of
[5:21] Speaker 5: what Wisconsin was trying to do, but it was so
[5:24] Speaker 5: complicated and so intrusive, and the lines they were drawing
[5:29] Speaker 5: were so subjective that I think, whether you are generally
[5:35] Speaker 5: sympathetic with supporting religious groups or supportive of a strong
[5:41] Speaker 5: line between church and state, that this is not a
[5:43] Speaker 5: road you'd want to go down.
[5:45] Speaker 2: The next case, Mamood versus Taylor, involves religious rights, parental rights,
[5:50] Speaker 2: and LGBTQ rights. Religious parents sued a school district that
[5:55] Speaker 2: wanted to incorporate LGBTQ friendly books in its career, and
[6:01] Speaker 2: the divide on the court was apparent when Justice is
[6:05] Speaker 2: Samuel Alito and Sonya Socha Mayor disagreed over the storyline
[6:11] Speaker 2: of one of the books, Uncle Bobby's Wedding.
[6:14] Speaker 1: Uncle Bobby gets married to his boyfriend Jamie, and everybody's happy,
[6:18] Speaker 1: and everything is you know, it portrays this. Everyone accepts this,
[6:23] Speaker 1: except for the little girl Chloe, who has reservations about it.
[6:28] Speaker 1: But her mother corrects her, Now, you shouldn't have any
[6:31] Speaker 1: reservations about this. As I said, it has a clear mora,
[6:38] Speaker 1: It has a clear moral message.
[6:41] Speaker 4: Is looking at the pictures? Is there any affidavit from
[6:44] Speaker 4: any parent that merely looking at people getting married holding hands?
[6:50] Speaker 4: None of them are even kissing at any of these books.
[6:54] Speaker 4: The most they're doing is holding hands. That mere exposure
[6:58] Speaker 4: to that is coercion.
[6:59] Speaker 2: This decision, in which bolstered religious rights, came out six
[7:03] Speaker 2: to three down ideological lines.
[7:06] Speaker 5: This was a case in which a school board added
[7:10] Speaker 5: some LGBTQ plus friendly books to its curriculum, and initially
[7:17] Speaker 5: it provided notice to parents of when these books would
[7:21] Speaker 5: be studied and allowed the parents to pull their kids
[7:24] Speaker 5: out of those classes. But after a while they concluded
[7:28] Speaker 5: that this was defeating the purpose of broadening the portrayal
[7:33] Speaker 5: of family life in their courses, so they no longer
[7:37] Speaker 5: allowed opt out. So the case came to the Supreme
[7:40] Speaker 5: Court as to whether it denied the parents' free exercise
[7:44] Speaker 5: of religion to not be able to pull their children
[7:47] Speaker 5: out of classes that were presenting LGBTQ plus people in
[7:53] Speaker 5: a positive light, and the Court ultimately concluded that the
[7:59] Speaker 5: parents rights required the school district to make an opt
[8:03] Speaker 5: out available. Justice Thomas then said, you'd better not try
[8:08] Speaker 5: to get around this decision by integrating these materials broadly
[8:13] Speaker 5: into your curriculum, because we'll shut that down too.
[8:17] Speaker 2: And the case is concerning I think on several levels,
[8:22] Speaker 2: there was no evidence that the children would be harmed
[8:25] Speaker 2: or influenced by the books, and the school district was
[8:29] Speaker 2: just trying to expose the children to a more inclusive worldview.
[8:34] Speaker 2: This is another in a line of cases where LGBTQ
[8:39] Speaker 2: rights lose, and I'm wondering when or if the conservative
[8:44] Speaker 2: justices will start protecting those rights.
[8:48] Speaker 5: Well, the Court has certainly stepped way way back from
[8:52] Speaker 5: where it was when it recognized same sex marriage and
[8:57] Speaker 5: or virtufel, and even back from where it was when
[9:00] Speaker 5: it recognized employment discrimination against LGBTQ people as violation and
[9:07] Speaker 5: Title seven in the Bostock case. I take this case,
[9:11] Speaker 5: as you do, as being primarily about the Court's disdain
[9:17] Speaker 5: for LGBTQ rights rather than about paranal rights. There are
[9:22] Speaker 5: plenty of states around the country that are putting a
[9:26] Speaker 5: strong skew in their curriculum, prohibiting teaching things about the
[9:31] Speaker 5: history of African Americans about certain episodes in the country's history,
[9:35] Speaker 5: presenting the Civil War in a remarkably skewed in ahistorical event,
[9:41] Speaker 5: and I would be very surprised to see the Supreme
[9:43] Speaker 5: Court willing to give opt out or similar rights to
[9:48] Speaker 5: parents from those curricula. I think, unfortunately, this is part
[9:53] Speaker 5: of the Court's retrenchment on gay rights.
[9:55] Speaker 2: Yeah, and on the emergency docket, they allowed the Trump
[9:58] Speaker 2: administration to kick trends gender troops out of the military
[10:01] Speaker 2: and allow this new policy requiring passports to reflect the
[10:05] Speaker 2: sex on the holder's birth certificates, so they do appear
[10:08] Speaker 2: to be going in that direction, which brings us to
[10:12] Speaker 2: Us versus Scurmetti again, a sixty three decision on Tennessee's
[10:16] Speaker 2: ban on gender a firm and care for minors.
[10:19] Speaker 5: This is a case that should have been very difficult
[10:24] Speaker 5: for the court because the Court had already in Bostock
[10:29] Speaker 5: said that discrimination against people because they are gay or
[10:34] Speaker 5: because they're transgender is a violation of the statutory ban
[10:39] Speaker 5: on discrimination on the base of sex. Some were afraid
[10:42] Speaker 5: the court would overturn boss Stock. They didn't all though
[10:46] Speaker 5: some justices made clear they would love to. The majority
[10:50] Speaker 5: didn't overturn Bostock, but it turned it into a sort
[10:54] Speaker 5: of word play game where there's not perhaps that much
[10:58] Speaker 5: vitality left. They said, well, this isn't discriminating on the
[11:04] Speaker 5: basis of sex, because child designated at birth as male
[11:10] Speaker 5: who wants these treatments will be denied them on the
[11:14] Speaker 5: base of this policy. And a child designated at birth
[11:18] Speaker 5: as female who wants these treatments will be denied them
[11:22] Speaker 5: because they don't need these treatments. They're already female. And
[11:26] Speaker 5: if that's true, then you can play a word game
[11:29] Speaker 5: with just ave at anything. So the cord here is
[11:32] Speaker 5: a very minimum sterilizing BOSSTOC, limiting it to its specific holding.
[11:40] Speaker 5: But more generally, it seems to be willing to engage
[11:44] Speaker 5: in some quite dishonest wordplay to avoid the implications of
[11:49] Speaker 5: civil rights laws. We've certainly seen that in other civil
[11:53] Speaker 5: rights laws, but it's disturbing to see it quite this active.
[11:56] Speaker 2: We'll see if they follow suit in the decision over
[11:59] Speaker 2: Colorado ban on conversion therapy coming up next year. Let's
[12:05] Speaker 2: turn now to a case about reverse discrimination Ames versus
[12:09] Speaker 2: Ohio Department of Youth Services.
[12:12] Speaker 5: Well, this was a straight white woman who believed that
[12:16] Speaker 5: she was being discriminated against in various employment decisions, promotion
[12:21] Speaker 5: and emotion decisions, and her job, and sued for employment discrimination.
[12:27] Speaker 5: The Sixth Circuit, which covers Ohio, have a doctrine that said,
[12:33] Speaker 5: if you are suing for discrimination as a member of
[12:36] Speaker 5: the majority group, you need to present some evidence that
[12:40] Speaker 5: makes it likely for people to think that you were
[12:44] Speaker 5: discriminated against. The idea that the Sixth Circuit has is
[12:48] Speaker 5: someone who has the deck stacked in their favor needs
[12:53] Speaker 5: to show why this is not the case in a
[12:55] Speaker 5: particular setting, and she didn't do that, so she lost.
[12:59] Speaker 5: And the Supreme Court reversed and said that the standard
[13:04] Speaker 5: for discrimination cases bought by members that majority groups from
[13:08] Speaker 5: minority groups are the same. And the Court, i think
[13:12] Speaker 5: concluded that the standard that the Sixth Circuit had established
[13:17] Speaker 5: was just impossible to sustain in light of their holdings
[13:22] Speaker 5: in particularly the school affirmative action cases. So the Court
[13:26] Speaker 5: ended up being unanimous on this, Justice Jackson wrote for
[13:29] Speaker 5: the majority.
[13:30] Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
[13:32] Speaker 2: this conversation with Georgetown law professor David Super. We'll look
[13:37] Speaker 2: at Supreme Court decisions involving nationwide injunctions, free speech, and
[13:42] Speaker 2: gun regulations. I'm June Grosso, and you're listening to Bloomberg.
[13:47] Speaker 2: One of the most high profile Supreme Court decisions of
[13:50] Speaker 2: the year was the case limiting the power of judges
[13:54] Speaker 2: to block government policies across the country, so called nationwide injunction.
[14:00] Speaker 2: The Court's conservatives and liberals split six to three in
[14:04] Speaker 2: Trump versus Kasa, a decision that President Trump praised.
[14:09] Speaker 6: Thanks to this decision, we can now promptly file to
[14:13] Speaker 6: proceed with numerous policies that have been wrongly enjoined on
[14:17] Speaker 6: a nationwide basis, and some of the cases we're talking
[14:21] Speaker 6: about would be ending birthright citizenship.
[14:25] Speaker 2: But that didn't happen, at least not yet. I've been
[14:28] Speaker 2: talking to Georgetown law professor David super about the Court's
[14:32] Speaker 2: opinions in twenty twenty five. David, this case was about
[14:36] Speaker 2: Trump's attempt to restrict birthright citizenship, but the decision was
[14:40] Speaker 2: about nationwide injunctions and limiting the power of judges to
[14:45] Speaker 2: issue them.
[14:46] Speaker 5: This is a case that got a lot of attention
[14:48] Speaker 5: that I frankly don't think it deserved. The practice of
[14:52] Speaker 5: some lower courts has been to enjoin the administration nationwide
[14:59] Speaker 5: from carry out a policy that the lower court's find
[15:02] Speaker 5: is illegal or unconstitutional. The Supreme Court says, you can't
[15:06] Speaker 5: just order a nationwide change on your own, but if
[15:12] Speaker 5: the case is file is a class action, then you
[15:15] Speaker 5: can order nationwide relief for a nationwide class So it's
[15:20] Speaker 5: going to require plaintiffs to file cases as class actions.
[15:24] Speaker 5: That's a little extra work in a few situations that
[15:27] Speaker 5: may not be easy to do, but most of the
[15:29] Speaker 5: time you can. And it's opened several other doors forgetting
[15:35] Speaker 5: national relief against what agencies are doing. So it's a
[15:38] Speaker 5: fairly technical case. It's a case in which the court
[15:42] Speaker 5: claims to be reaffirming its originalist credentials. I think they
[15:47] Speaker 5: also get the history wrong, but at least that's what
[15:49] Speaker 5: they say they're doing, and it won't change the outcome
[15:53] Speaker 5: in the cases about birthright citizenship. The lower courts we're
[15:58] Speaker 5: all able to reinstate their orders after playing this file
[16:03] Speaker 5: of the class action, so I don't think this is
[16:06] Speaker 5: going to affect there. In many cases, it certainly is
[16:08] Speaker 5: octom to affect birthright citizenship, which is back up to
[16:11] Speaker 5: the Secret Court off the merit SAT.
[16:13] Speaker 2: Let's turn to another case that divided the justices down
[16:17] Speaker 2: ideological lines six to three. Free Speech Coalition versus Paxton
[16:23] Speaker 2: was a challenge to a Texas law that required visitors
[16:27] Speaker 2: to pourn websites to verify their age, and several of
[16:31] Speaker 2: the justices expressed concerns about how easily teenagers can get
[16:36] Speaker 2: access to porn. Today. Here's Justice Amy Cony Barrett.
[16:41] Speaker 7: I mean kids can get online porn through gaming systems, tablets, phones, computers.
[16:48] Speaker 7: Let me just say that content filtering for all those
[16:50] Speaker 7: different devices, I can say from personal experience, is difficult
[16:54] Speaker 7: to keep up.
[16:54] Speaker 2: With tell us about this free speech challenge.
[16:57] Speaker 5: This deals with a question priorities. Porn can be denied
[17:02] Speaker 5: to minors. There's lots of psychological evidence it can be
[17:06] Speaker 5: quite destructive of miners. The Court is upheld shielding miners
[17:10] Speaker 5: from it. But there are many things that are not
[17:12] Speaker 5: acceptable for miners that are protected for adults by the
[17:16] Speaker 5: First Amendment. And the question here is which of those
[17:19] Speaker 5: do you prioritize protecting the miners or providing access for
[17:24] Speaker 5: the adults? And taxes enacted this law requiring age verification
[17:31] Speaker 5: by porn sites that the Supreme Court majority upheld as
[17:35] Speaker 5: consistent with protecting miners. The Ascent said it's got too
[17:40] Speaker 5: much of an impact on adults and is therefore a
[17:44] Speaker 5: denial of free speech.
[17:46] Speaker 2: Half the states now have these age verification laws. Do
[17:50] Speaker 2: you think that a few of the cases this year
[17:53] Speaker 2: can be looked at in terms of reaffirming states rights.
[17:57] Speaker 5: You could say that, but I think the Court is
[18:02] Speaker 5: not a serious federalist court. They are strongly in favor
[18:06] Speaker 5: of states doing what they like the states to do,
[18:08] Speaker 5: and they are absolutely appalled when the states do something
[18:12] Speaker 5: they don't like. So it's very hard to see a
[18:15] Speaker 5: meaningful States rights theme in what the Court is doing.
[18:19] Speaker 5: You certainly could ten to fifteen years ago, but I
[18:21] Speaker 5: don't think you can now.
[18:22] Speaker 2: Let's look at a case that was applauded by gun
[18:25] Speaker 2: safety advocates, Bondi versus Van der Stock. It was a
[18:29] Speaker 2: seventy two decision about ghost gun kits with Clarence Thomas
[18:34] Speaker 2: and Samuel Alito in descent. No surprise there. It seemed
[18:38] Speaker 2: like a pretty easy case.
[18:40] Speaker 5: It really was a pretty easy case. It was a
[18:42] Speaker 5: gun case, but not a Second Amendment case, or not
[18:45] Speaker 5: meaningfully a Second Amendment case. The Gun Control Act that
[18:50] Speaker 5: was passed right after doctor King and R. F. Kennedy
[18:53] Speaker 5: Senior were assassinated gave the Bureau of Tobacco and Firearms
[18:58] Speaker 5: the authority to regulate certain weapons. And the advent of
[19:05] Speaker 5: ghost guns of gun kits that could be rapidly assembled
[19:09] Speaker 5: without serial numbers so the guns would be untraceable, prompted
[19:14] Speaker 5: the government to put out regulations restricting them in some
[19:18] Speaker 5: of the same ways that other guns are restricted. And
[19:21] Speaker 5: the gun lobby and the gun manufacturers said, oh, you
[19:25] Speaker 5: have no authority to do this under the statute. So
[19:30] Speaker 5: as an administrative law you must stop. Not a Second
[19:33] Speaker 5: Amendment case, just an argument the agency exceeded its lawful authority,
[19:39] Speaker 5: and the Supreme Court majority said no, this is actually
[19:42] Speaker 5: squarely within the Act. All we require is that there
[19:46] Speaker 5: be a weapon and that it be capable of ejecting
[19:51] Speaker 5: a projectile with some modification. Starter pistols have been regulated
[19:57] Speaker 5: since time immemorial, and this is really no different than
[20:01] Speaker 5: that this is a gun minus a little bit of work,
[20:04] Speaker 5: which is certainly something they could regulate.
[20:07] Speaker 2: In June, the Court declined to consider a new expansion
[20:10] Speaker 2: of constitutional gun rights, turning away challenges to a Maryland
[20:14] Speaker 2: ban on assault weapons and a Rhode Island prohibition on
[20:17] Speaker 2: high capacity magazines. Can we read anything into that declination
[20:22] Speaker 2: plus what we saw on the Ghostguns case.
[20:25] Speaker 5: The Ghost Guns case is basically an administrative law case.
[20:30] Speaker 5: The claim that was brought by the gun industry was laughable,
[20:33] Speaker 5: and I think they were hoping that because they're the
[20:36] Speaker 5: gun industry and they're supposed to win everything, that they
[20:39] Speaker 5: could win even with a case that no one else could.
[20:42] Speaker 5: And the Supreme Court, I think maybe was a bit
[20:46] Speaker 5: insulted at such a brazen presentation of an awful case.
[20:50] Speaker 5: Denials are very hard to read. There's often a lot
[20:55] Speaker 5: of strategy going into them. The Supreme Court's in a
[20:58] Speaker 5: bind here, though, because it's talk more and more and
[21:01] Speaker 5: more about originalism, and yet its interpretation of the Second
[21:05] Speaker 5: Amendment is completely anti originalists. So every time it takes
[21:09] Speaker 5: a Second Amendment case, it has to choose between embarrassing
[21:13] Speaker 5: its originalists ideals and philosophy and offending the gun lobby.
[21:19] Speaker 5: And not taking cases is a way of avoiding putting
[21:23] Speaker 5: itself to that kind of decision. The simplest approach would
[21:27] Speaker 5: be to reverse Brown and Heller and go back to
[21:30] Speaker 5: an originalist view of the Second Amendment, but apparently that's
[21:33] Speaker 5: a bridge too far.
[21:35] Speaker 2: Let's turn to a unanimous decision next, where the Court
[21:38] Speaker 2: signed with the FDA's rejection of applications for vaping products
[21:43] Speaker 2: formulated to taste like fruit or candy and likely to
[21:47] Speaker 2: be used by kids as just as Elena Kagan explained.
[21:51] Speaker 8: Flavors you give people blueberry vapes. The difficulty with that,
[21:58] Speaker 8: and FDA I think has tried to document this, is
[22:01] Speaker 8: that blueberry vapes are very appealing to sixteen year olds,
[22:04] Speaker 8: not to forty year olds.
[22:06] Speaker 5: We were talking about the gun industry earlier, and now
[22:09] Speaker 5: we come to the tobacco industry. There equal in consumer abuse,
[22:14] Speaker 5: and the tobacco industry is selling vaping products nominally to
[22:22] Speaker 5: get existing smokers off of cigarettes, but in fact to
[22:26] Speaker 5: attract a whole new set of young people to endasure
[22:30] Speaker 5: their health. And the FDA rejected marketing approval for a
[22:36] Speaker 5: number of these items, and the tobacco company said, well,
[22:40] Speaker 5: the ground sited in the denial don't quite match up
[22:44] Speaker 5: with some of the things that the FDA said earlier,
[22:48] Speaker 5: so that's a violation of administrative law. And the Supreme
[22:53] Speaker 5: Court gave us a long winded version of oh, come on,
[22:57] Speaker 5: and they said that it was very clear that the
[23:01] Speaker 5: FDA had acted in just the way that it had
[23:03] Speaker 5: said before, that there's no reason the cigarette companies should
[23:07] Speaker 5: have thought that it was going to come out any differently.
[23:10] Speaker 5: In other cases, when the FDA provided a somewhat more
[23:14] Speaker 5: thorough review, it came to the same result. And there's
[23:17] Speaker 5: simply no reason to think that sending it back the
[23:20] Speaker 5: FDA would get any different result. And it cited the
[23:24] Speaker 5: administrative ziject, which specifically tells courts not to interfere in
[23:29] Speaker 5: cases where the result clearly was correct.
[23:32] Speaker 2: David, does this case say anything more about the court
[23:36] Speaker 2: affirming the FDA's authority or is it confined to its facts?
[23:41] Speaker 5: This case is I think more interesting in general administrative
[23:48] Speaker 5: law terms than it is in tobacco or FDA terms.
[23:52] Speaker 5: There's been a controversy going back at least to the
[23:55] Speaker 5: Reagan administration, arguably earlier, about what agencies have to do
[24:00] Speaker 5: when they change their positions, and we've got a lot
[24:03] Speaker 5: of that going on right now because Trump appointees are
[24:06] Speaker 5: pretty different than Biden appointees. And the Court here said
[24:11] Speaker 5: that agencies don't have to go through a lot of
[24:14] Speaker 5: process when the change in their position is small and predictable.
[24:20] Speaker 5: So if the Trump officials want to make minor changes
[24:24] Speaker 5: around the edges as to what by people were doing,
[24:28] Speaker 5: that there won't be a need for something fairly elaborate.
[24:32] Speaker 5: I am not aware of a lot of Trump administration
[24:34] Speaker 5: officials that are making only minor changes, but I'm sure
[24:37] Speaker 5: there's some out there somewhere. And so the court said
[24:40] Speaker 5: that if the change is minor, you don't need an
[24:43] Speaker 5: intricate procedure, and that will, I think be useful guidance
[24:47] Speaker 5: as agencies rEFInd their policies of the future.
[24:50] Speaker 2: Finally, Medina versus Planned Parenthood, it was about individual Medicaid patients'
[24:55] Speaker 2: ability to sue. Is it having an effect.
[24:58] Speaker 5: There's a provision in the Medicaid Statute assuring patients beneficiaries
[25:05] Speaker 5: of the right to choose their providers. Most of us
[25:09] Speaker 5: care a lot about who our healthcare provider is, and
[25:13] Speaker 5: this was understood in Medicaid, which was trying to provide
[25:16] Speaker 5: health insurance as similar to other health insurance as they
[25:20] Speaker 5: feasibly could. And the question is when a state violates that,
[25:26] Speaker 5: can beneficiaries sue? And the Supreme Court in a number
[25:30] Speaker 5: of cases over the years, has cut back on when
[25:36] Speaker 5: you can sue when the law is violated. It's a
[25:39] Speaker 5: strange concept for non lawyers that someone has violated the
[25:43] Speaker 5: law in a way that hurts you when you can't sue,
[25:46] Speaker 5: But that's what the Supreme Court has said. And in
[25:50] Speaker 5: this case of state are trying to throw planned parenthood
[25:55] Speaker 5: out of Medicaid, and presumably because they think boasure to
[26:00] Speaker 5: planned parenthood will cause some people to think about abortions
[26:04] Speaker 5: or about birth control. And the Supreme Court held that
[26:09] Speaker 5: people denied choice of provider by these laws do not
[26:13] Speaker 5: have the right to go to court.
[26:14] Speaker 2: It's striking to me that in cases involving culture war
[26:18] Speaker 2: issues we almost always see the six to three ideological split,
[26:24] Speaker 2: with the court's conservative super majority prevailing.
[26:27] Speaker 5: Of course, well, I mean almost all the cases you
[26:30] Speaker 5: asked me about our cases with important social concerns. One
[26:35] Speaker 5: of these days we'll do a riveting podcast on securities
[26:39] Speaker 5: law cases. So these are all significant cases. The unanimous ones,
[26:44] Speaker 5: I think, are mostly ones where a lower court just
[26:47] Speaker 5: got very lost and did something that was so unreasonable
[26:51] Speaker 5: that either the liberal justices or the conservative justice were
[26:55] Speaker 5: not willing to stand behind it. The one example that
[26:58] Speaker 5: would seem to be an exception is the Oklahoma case
[27:02] Speaker 5: that we talked about, where there was a conservative justice
[27:05] Speaker 5: who voted with the liberal justice to get to the
[27:08] Speaker 5: four to four impass. So it's not a completely ideological court.
[27:14] Speaker 5: There were four conservatives that voted with the liberal justices
[27:19] Speaker 5: on the ghost guns case, recognizing that the arguments there
[27:24] Speaker 5: were quite foolish. But yes, the court is quite polarized
[27:28] Speaker 5: on culture war cases and on executive power cases. So
[27:34] Speaker 5: we don't have the kind of national mediating institution in
[27:39] Speaker 5: the court that we did in earlier years when it
[27:43] Speaker 5: all came down to Justice O'Connor or Justice Kennedy, or
[27:47] Speaker 5: back in the nineteen seventies when you had two very
[27:50] Speaker 5: liberal justices, two very conservative justice and five legitimately up
[27:54] Speaker 5: for grabs swing justices. We don't have that kind of
[27:57] Speaker 5: court anymore.
[27:58] Speaker 2: No one can dispute that so much. David for helping
[28:01] Speaker 2: us understand the implications of the decisions this year. That's
[28:05] Speaker 2: Georgetown law professor David super Coming up next. Luigi Mangioni
[28:09] Speaker 2: is trying to get crucial prosecution evidence thrown out. I'm
[28:14] Speaker 2: June Grosso. When you're listening to Bloomberg player.
[28:17] Speaker 9: Number one, what is the address of your emergency? It's
[28:21] Speaker 9: really an emergency. I'm a manager at SLINKERD McDonald's out
[28:25] Speaker 9: here in the boulevard, Okay, and I have a customer
[28:29] Speaker 9: here that some other customers were suspicious of that he
[28:32] Speaker 9: looked like the CEO shooter from New York, Okay.
[28:36] Speaker 2: That was a nine to one one call that led
[28:39] Speaker 2: police to the McDonald's in Altoona, Pennsylvania, where Luigi Mangioni
[28:44] Speaker 2: was eating breakfast last December. Mangioni is trying to get
[28:48] Speaker 2: a judge to exclude crucial evidence from an eventual trial
[28:52] Speaker 2: on charges that he murdered United Health Group executive Brian
[28:56] Speaker 2: Thompson last year in New York. At an evidentiary hearing
[29:00] Speaker 2: that span seven days of testimony from seventeen witnesses, prosecutors
[29:04] Speaker 2: played body camera footage of his arrest at the McDonald's,
[29:08] Speaker 2: starting with an officer approaching mangione and asking for id.
[29:13] Speaker 5: Hens out off the car.
[29:15] Speaker 9: Yes, sir, that's good Shire, Hi do okay?
[29:20] Speaker 5: What's your name? What is it Mark? Mark? You said, Mark?
[29:25] Speaker 9: What? Lluria?
[29:27] Speaker 5: I'm sorry? Someone called either thought you were suspicious? Polson
[29:31] Speaker 5: to driving on.
[29:33] Speaker 4: Yes.
[29:34] Speaker 2: It ended with Mangioni in handcuffs, but not before a
[29:37] Speaker 2: police officer rifled through his backpack, finding a loaded gun
[29:42] Speaker 2: magazine wrapped in a pair of underwear. Police searched the
[29:45] Speaker 2: backpack more thoroughly at the police station and found evidence,
[29:50] Speaker 2: including a nine millimeter handgun that prosecutors say matches the
[29:54] Speaker 2: gun used to kill Thompson, a silencer, a passport, and
[29:58] Speaker 2: a notebook they've disc described as a manifesto. But police
[30:03] Speaker 2: didn't get a warrant until after both searches of the backpack,
[30:07] Speaker 2: and the defense says that violates Mangioni's constitutional rights against
[30:11] Speaker 2: illegal search and seizure, and all that evidence should be
[30:15] Speaker 2: thrown out. Mangioni has pleaded not guilty to nine state counts,
[30:20] Speaker 2: including second degree murder and various weapons charges. He's also
[30:25] Speaker 2: pleaded not guilty to four federal charges in a separate case.
[30:29] Speaker 2: My guest is former federal prosecutor Robert Mintz, a partner
[30:33] Speaker 2: MC carter. In English, Bob, there are suppression hearings all
[30:37] Speaker 2: the time in criminal cases, although probably not lasting as
[30:41] Speaker 2: long with as many as seventeen witnesses.
[30:44] Speaker 10: That's true, And what you have when you're a defense
[30:46] Speaker 10: lawyer heading into a criminal trial are really very few
[30:51] Speaker 10: weapons to try to knock out the government's case before
[30:55] Speaker 10: you go to trial. Once there is an indictment, you
[30:58] Speaker 10: really have the opportunity only to try to suppress certain evidence.
[31:02] Speaker 10: In other words, argue to the court that the evidence
[31:05] Speaker 10: obtained by prosecutors and that prosecutors intend to rely on
[31:09] Speaker 10: to gain a conviction at trial, were somehow obtained illegally
[31:13] Speaker 10: in violation of your client's constitutional rights, and therefore should
[31:18] Speaker 10: not be used at the trial. So what we're seeing
[31:20] Speaker 10: here is something that defense lawyers try to do all
[31:23] Speaker 10: the time, but as you say, this has turned into
[31:25] Speaker 10: a much more protracted hearing, going approximately three weeks. Still,
[31:30] Speaker 10: at the end of the day, any suppression hearing in
[31:33] Speaker 10: any criminal case is going to be an uphill battle
[31:36] Speaker 10: for the defense because what the defense is really trying
[31:39] Speaker 10: to do here is knock out critical evidence that could
[31:42] Speaker 10: be used against their client and would have a very
[31:45] Speaker 10: significant impact on the likely outcome of the trial. So
[31:49] Speaker 10: judges are generally speaking reluctant to suppress key evidence before
[31:54] Speaker 10: a trial. One interesting aspect of this lengthy suppression hearing
[31:59] Speaker 10: is that even if the defense loses its motion to
[32:02] Speaker 10: suppress its evidence, as it likely will, there's still a
[32:06] Speaker 10: huge benefit for the defense because they've now heard testimony
[32:09] Speaker 10: from a large number of police officers who will testify
[32:13] Speaker 10: at the trial, and what it gives them is a
[32:15] Speaker 10: preview of the state's case, and it also gives them
[32:19] Speaker 10: a script by which they can cross examine those witnesses
[32:23] Speaker 10: later at trial.
[32:24] Speaker 11: So even if they lose this case, there's still.
[32:27] Speaker 10: A benefit to the defense, and they can essentially lose
[32:30] Speaker 10: the battle but potentially win the war down the road
[32:33] Speaker 10: by using the testimony at the suppression hearing against those witnesses.
[32:37] Speaker 2: At trial, now, the defense is arguing that the police
[32:41] Speaker 2: should have gotten a warrant before searching the backpack.
[32:44] Speaker 10: Essentially, what the defense has argued with regard to the
[32:47] Speaker 10: backpack is that the search was illegal and therefore all
[32:51] Speaker 10: of the evidence obtained from that search the key evidence
[32:54] Speaker 10: in that backpack that is absolutely critical to the state
[32:57] Speaker 10: being able to prove its case at trial. It includes,
[33:01] Speaker 10: among other things, the gun that the state alleged was
[33:04] Speaker 10: used in the shooting.
[33:06] Speaker 11: They argue that the search was illegal.
[33:09] Speaker 10: Because it was not done pursuant to a warrant, And
[33:12] Speaker 10: what the defense has said is that a warrant could
[33:14] Speaker 10: have been obtained, and in fact was not until much later.
[33:18] Speaker 10: During the hearing, there was evidence played from the bodycam
[33:23] Speaker 10: footage of the police officers where you see officers debating
[33:26] Speaker 10: among themselves whether they should get a warrant to search
[33:29] Speaker 10: the backpack at the McDonald's.
[33:32] Speaker 11: Or where they should wait and.
[33:33] Speaker 10: Bring the backpack back to the police station and then
[33:36] Speaker 10: get the warrant. Ultimately, they decide not to get the
[33:39] Speaker 10: warrant at the McDonald's, to go back to the police
[33:42] Speaker 10: station and to get the warrant only after the backpack
[33:45] Speaker 10: has been searched back at the police station.
[33:48] Speaker 2: Prosecutors argue the search was legal because it was an
[33:52] Speaker 2: exception to the warrant requirement, and the police officers testified
[33:57] Speaker 2: that they were looking in the backpack to see if
[33:59] Speaker 2: they're any explosives or other dangerous items. But on cross examination,
[34:05] Speaker 2: the defense attorney asked the officer why she continued to
[34:09] Speaker 2: search through the bag without a warrant even after she
[34:12] Speaker 2: determined that there were no explosives, and why police never
[34:16] Speaker 2: cleared the restaurant of customers and employees if they thought
[34:21] Speaker 2: there was an explosive.
[34:22] Speaker 11: What the prosecution has argued here is that the search
[34:26] Speaker 11: was legal because it was done pursuing to an exception,
[34:30] Speaker 11: and that is called a search incident to arrests. So
[34:34] Speaker 11: what prosecutors have said was, at the time that the police.
[34:37] Speaker 10: Officers approached mister Mangioni at that McDonald's, they asked for
[34:41] Speaker 10: his identification. He gave them a false identification and he
[34:46] Speaker 10: identified himself as Mark Rosario, giving him a false name.
[34:50] Speaker 10: Police officers ran that information. They quickly learned that the
[34:53] Speaker 10: identification was false, and the prosecution that we argues that
[34:57] Speaker 10: the search was done incident to the arrest, the crime
[35:01] Speaker 10: being giving false information and a false ID to the
[35:04] Speaker 10: Altoona Police officers, and so they're saying that the search
[35:08] Speaker 10: is legal cause its incident to arrest, although typically a
[35:13] Speaker 10: search incident to arrest is done for purposes of securing
[35:17] Speaker 10: the safety of the officers and of the surrounding people.
[35:21] Speaker 10: And that's why the defense focused a lot on trying
[35:24] Speaker 10: to demonstrate that the search of the backpack went beyond
[35:28] Speaker 10: merely determining that there was nothing in there that could
[35:31] Speaker 10: be a threat to the officers or a threat to
[35:33] Speaker 10: anybody else in the McDonald's, that they went beyond what
[35:36] Speaker 10: we should have been permitted in a search incident to
[35:39] Speaker 10: arrest to look for evidence rather than merely determining that
[35:44] Speaker 10: there is nothing in the backpack that would pose a
[35:46] Speaker 10: threat to the officers or to the public.
[35:48] Speaker 2: So minutes after the police approached Mangoni in the McDonald's,
[35:53] Speaker 2: he told an officer that he didn't want to talk,
[35:55] Speaker 2: that's according to video and testimony, But police continued asking
[35:59] Speaker 2: him questions and he continued answering, and nearly twenty minutes
[36:03] Speaker 2: fast before they read him the miranda warnings, and so
[36:06] Speaker 2: his lawyer is arguing that any of his statements should
[36:10] Speaker 2: be excluded.
[36:11] Speaker 10: So the body camera footage does show that an officer
[36:15] Speaker 10: read mister Mangoni his Miranda rights, but it wasn't until
[36:19] Speaker 10: twenty minutes after they first started asking questions, and mister
[36:22] Speaker 10: Mangoni had said that he did not want to.
[36:25] Speaker 5: Answer their questions.
[36:26] Speaker 10: He did not ask for an attorney, otherwise officers would
[36:30] Speaker 10: have had to have stopped asking those questions. But the
[36:32] Speaker 10: question raised by the defense lawyers was should he have
[36:36] Speaker 10: been apprized of his miranda rights sooner? Miranda rights are
[36:40] Speaker 10: the all important advisement of a defendant's right to remain
[36:44] Speaker 10: silent and the right to have an attorney before any
[36:47] Speaker 10: questioning continues, and the defense has argued that not only
[36:51] Speaker 10: the comments made by mister Mangoni on December ninth at
[36:55] Speaker 10: the McDonald's.
[36:56] Speaker 11: Should be suppressed, but also his.
[36:58] Speaker 10: Comments through his tradition to New York ten days later
[37:02] Speaker 10: should also be set aside.
[37:04] Speaker 2: Bob, what will the judge consider as far as the
[37:07] Speaker 2: delay in giving the miranda warnings.
[37:09] Speaker 10: In terms of analyzing whether mister Mangoni should have been
[37:13] Speaker 10: given his miranda rights sooner? Than twenty minutes after police
[37:16] Speaker 10: officers first started questioning him. The judge is going to
[37:20] Speaker 10: look at the critical question of whether or not he
[37:23] Speaker 10: was in custody and whether he was actually being interrogated
[37:26] Speaker 10: by law enforcement. That's the standard when an individual is
[37:31] Speaker 10: considered in custody and being interrogated by law enforcement, that
[37:35] Speaker 10: is the moment that triggers the requirement that they be
[37:38] Speaker 10: given the Miranda warnings. So the question here is when
[37:41] Speaker 10: they were standing in that McDonald's, can the defense convince
[37:45] Speaker 10: the court that mister Mangioni was in custody and in
[37:49] Speaker 10: fact was being interrogated by police officers at the time.
[37:53] Speaker 10: The prosecution has argued that he was not in custody,
[37:56] Speaker 10: that he was not prevented from leaving the McDonald and
[38:00] Speaker 10: that he was not formally being interrogated until about twenty
[38:03] Speaker 10: minutes into the questioning, and that is the point in
[38:06] Speaker 10: which he was given as miranda rights.
[38:09] Speaker 2: And Manngioni's defense attorney argued that he was effectively in
[38:13] Speaker 2: custody because officers had formed a human wall around him
[38:18] Speaker 2: at the McDonald's. You mentioned before that it's not likely
[38:23] Speaker 2: that the judge will kick out this evidence. Will you
[38:26] Speaker 2: explain in a little more detail why you feel that way.
[38:30] Speaker 10: The issues that were raised during the suppression hearing are
[38:33] Speaker 10: enormous from the standpoint of the prosecution. What's at stake
[38:37] Speaker 10: here is the evidence that really goes to the heart
[38:39] Speaker 10: of the prosecutor's case. Were the judges to decide to
[38:43] Speaker 10: suppress the search, that would bar prosecutors from using the
[38:48] Speaker 10: nine millimeter handgun allegedly found in the backpack that matches
[38:52] Speaker 10: the firearm used in the killing. It would bar prosecutors
[38:56] Speaker 10: for presenting a trial writings in the notebook that, according
[38:59] Speaker 10: to prosecutors, laid out Mangioni's disdain for health insurers and
[39:04] Speaker 10: ideas about killing a CEO at an investor conference. And
[39:08] Speaker 10: it would also bar them from using evidence that ties
[39:11] Speaker 10: the false name that he gave to police officers at
[39:15] Speaker 10: the McDonald's with the name that was used by an
[39:19] Speaker 10: individual checking into the New York hostel days.
[39:22] Speaker 11: Before the shooting.
[39:23] Speaker 10: So the stakes are enormously high, and generally speaking, judges
[39:29] Speaker 10: will give the benefit of the doubt to police officers
[39:32] Speaker 10: and to law enforcement if there's a credibility question between
[39:37] Speaker 10: the defendant and law enforcement. I think what will be
[39:40] Speaker 10: critical to the analysis here regarding the search is that
[39:45] Speaker 10: there was a crime committed by giving the false information,
[39:48] Speaker 10: and the question then is raised as to whether the
[39:51] Speaker 10: search incident to that arrest was appropriate or not.
[39:55] Speaker 2: In this day and age, where most people can probably
[39:58] Speaker 2: recite the Miranda warran from watching them on TV or
[40:02] Speaker 2: in the movies, why do police hesitate to give them.
[40:06] Speaker 10: Police officers argued that they were trying to keep him
[40:10] Speaker 10: calm and trying to determine if, in fact, he was
[40:13] Speaker 10: the person who law enforcement was looking for while they
[40:16] Speaker 10: questioned him. It's still a big deal. Even though, as
[40:19] Speaker 10: you say, people can recite those warnings from watching Law
[40:23] Speaker 10: and Order and many of the other television shows, that
[40:25] Speaker 10: is something that still has to be given at the
[40:28] Speaker 10: appropriate time, and the failure to do that can result
[40:33] Speaker 10: in statements being suppressed and not being presented at trial.
[40:36] Speaker 10: So it's a very big deal here, and the judge
[40:38] Speaker 10: is going to have to look at the question of
[40:40] Speaker 10: whether or not he was actually in custody. He was
[40:43] Speaker 10: surrounded by police officers, but the prosecution will argue that
[40:48] Speaker 10: at no time did he ask whether he could leave,
[40:50] Speaker 10: did he make an attempt to leave, or did prosecutors
[40:53] Speaker 10: tell him that he couldn't leave the McDonald's, and therefore
[40:57] Speaker 10: he was not in custody at the time that they
[40:59] Speaker 10: asked these questions, and was not being interrogated at the
[41:02] Speaker 10: time that they asked him these questions, and therefore the
[41:05] Speaker 10: decision to not mirandize him for twenty minutes was appropriate
[41:09] Speaker 10: and should not result in a suppression of those statements.
[41:12] Speaker 2: And we'll have to wait until May eighteenth to find
[41:15] Speaker 2: out the judge is ruling. Thanks so much, Bob. That's
[41:18] Speaker 2: Robert mince of maccarter and English, and that's it for
[41:22] Speaker 2: this edition of The Bloomberg Law Show. Remember you can
[41:24] Speaker 2: always get the latest legal news on our Bloomberg Law Podcast.
[41:28] Speaker 2: You can find them on Apple Podcasts, Spotify, and at
[41:31] Speaker 2: www dot bloomberg dot com, slash podcast Slash Law, and
[41:36] Speaker 2: remember to tune into The Bloomberg Law Show every weeknight
[41:39] Speaker 2: at ten pm Wall Street Time. I'm Jim Grosso and
[41:43] Speaker 2: you're 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.