With its last two terms bringing down significant rulings on issues like abortion, student loan forgiveness, and affirmative action. More eyes than ever are on the U. S. Supreme Court, which has shown its power to shape important policy issues that affect all Americans. Bloomberg Supreme Court reporter Greg Store looks ahead at which cases are likely to be of greatest consequence this term, some of which involve gun rights, speech on social media and how much power federal agencies
should have. And later we look at former President Donald Trump's legal woes already before the Supreme Court thanks to an extraordinary request from one of the prosecutors. I'm Craig Gordon today on the big take another pivotal year for the US Supreme Court, Greg, The US is a roaching a record for the number of mass shootings that have occurred within the space of a single year, and the Supreme Court will be taking up several cases around the
issue of gun rights. Let's start by taking a look at the case involving a Trump era ban on bump stocks. What is a bumpstock and why are they currently banned?
A bump stock is a device that lets a semi automatic rifle fire a little bit like a machine gun.
And the Trump administration banned bumpstocks. It made it a criminal offense after that horrific twenty seventeen shooting in Las Vegas that killed about sixty people where the shooter used bump stocks, and the question for the Supreme Court is whether the Bureau of Alcohol, Tobacco, and Firearms had the authority to do that, Whether within this law that gives ATF some discretion to ban things, whether this device makes a semi automatic weapon into something similar enough to a
machine gun that they have the ability to say that is illegal and it's a criminal offense to possess one.
Another gun case, we're watching concerns of ban on quote dangerous people owning firearms. Tell us about this case.
This is a second Amendment case and it's potentially very
very important. If you recall a year and a half ago, the Supreme Court said there's a constitutional right to carry a handgun in public, and as part of that, the Court set up a really tough legal test where they said, we're going to look to history and unless you can point to a regulation, a law within our history that shows there's a tradition of regulating this type of behavior this type of firearm, then it violates the Second Amendment.
And so the question here is a federal law that says, if you're subject to a domestic violence restraining order, you can lose your gun rights. And so what the Justice is explored in arguments in November and are going to rule on sometime next year is whether there's enough of a tradition there of taking weapons away from people like the man in question in this case, who is subject to a domestic violence restraining order for that to pass Second Amendment muster.
The arguments seem to go.
Pretty well from the standpoint of gun control advocates in the Biden administration, the Court didn't seem like they wanted to go quite that far to say, no, you can't impose this type of gun restriction. But we'll see what happens when they rule.
So what sorts of other Second Amendment cases could this case be a prelude to if the Justice were to rule one way.
Or the other.
Well, certainly there are a lot of cases kicking around about things like restrictions on so called assault weapons and large capacity magazines. Those are the kinds of restrictions that a lot of states and local governments had in place even before the recent wave of mass shootings. There are questions about whether those will survive constitutional muster. There are questions about whether somebody who is convicted of a non
violent felony can have their gun rights taken away. That's the kind of thing that was very much at issue in the arguments in the domestic violence case, question of who has a Second Amendment right even if they've done something violent or non violent, something to evade the law previously in their life.
The National Rifle Association, often known as the NRA, is also involved in one of these gun cases. They are claiming that a New York State official blacklisted the organization, violating its free speech rights. What is the root of the NRA's complaint in this case?
So this is a first Amendment case.
They're saying the New York officials violated our rights. They discriminated against us because they don't like our viewpoint when they pressured insurance companies not to do business with us.
So the NRA is essentially claiming they are allowed to exist as an organization and carry out a position that some people might agree with and might disagree with, and New York State has no right to squelch that activity.
Essentially, they're arguing that regulators don't have a free reign to target us because they don't like what we do, and that that is a quintessential First Amendment violation because the government is supposed to treat private individuals and organizations
the same, regardless of what their viewpoints are. If the government wants to express its own views on a matter, it's allowed to do that, but it can't punish us for expressing what we want to express and doing that by pressuring others, in this case, insurance companies to disfavor us.
Greg you mentioned several First Amendment cases on this year's docket, and some in particular, including social media and misinformation. Three of these cases deal with the ability of federal entities and the platforms themselves to police misinformation.
Tell us what's at stake.
There are three different buckets of social media cases this term. One has to do with Biden administration efforts to take down misleading posts about COVID during the head of the pandemic, and a lower court said the Biden deministration violated the First Amendment by being too heavy handed there and restricted the context that the Biden administration could have with social media companies going forward, and that could have big implications
for the election. Now that ruling is on hold, but the Supreme Court is going to take up the underlying question of whether the Biden administration could be restricted in that way. Another set of cases has to do with state laws, one Texas one in Florida that restrict what social media companies can do to moderate the content on
their site. So, in both cases, those states say social media companies are disfavoring conservative viewpoints, and so they've set up all these rules to make sure that in their mind, conservative viewpoints aren't disfavored. And so there are a variety of First Amendment attacks that the social media companies are pressing against those two laws. And then the final bucket of cases has to do with a variation of if you remember back when Donald Trump was president and he
would block people from his Twitter account. These are cases where officials at lower levels did something similar to that. They have private social media accounts where they talk about public events, public affairs, public issues. The question is do they have the right to block people from posting comments on their social media sites if they're using them for at least quasi official purposes.
All three of these cases would seem to have a great bearing on what kind of posts can be made during the twenty twenty four election. How do you see this shaking out in terms of the election speech that both sides are going to be trying to engage in, whether that's Biden and Tromp, Republicans and Democrats. Are we going to see a kind of a wild West approach where things are wide open or do you think there
will be limitations put on it? Especially after the twenty sixteen election, when Facebook and other companies played a pretty major role in some of the campaigns.
I would say that cases like these might have seemed more important before the social media companies started scaling back on their own how much they want to do to moderate content. For example, the case about the Biden administration, that will be very important in the election going forward. It will restrict the ability of the Biden administration if they lose to go to X or Facebook or whoever and say, hey, somebody is posting false information there.
You might want to take a look at that. But to the extent that.
The social media companies aren't as interested in taking down misleading content, the effect will be a little less now the Texas and Florida laws. They could still have a pretty big effect if social media companies are affirmatively required to take steps to make sure that conservative content isn't disfavored, isn't disproportionately taken down, but probably more at the margins than it might have been if we were having this debate before, say the twenty twenty election.
Greg The ruling against the Sackler family, of course, they are the owners of Purdue Pharma that manufactured oxy content is also being challenged, the central question there being whether or not the Sackler family could get a legal shield from future litigation through their settlement. What arguments are being made in this case.
So, this is a case where the Biden administration and a guy in within the Justice Department known as the US Trustee is challenging the settlement on the grounds that federal bankruptcy law doesn't let bankruptcy judges approve so called non consenting third party releases. And to unpack that a little bit, the idea is people who might want to sue the Sacklers because they blame them for the opioid
crisis can no longer sue them. Under the settlement, the Sacklers are shielded to a large degree from any additional liability. In this case, the settlement as a whole requires them to put in something like six billion dollars into the pot for victims and the fund opioid addiction programs. Some folks would like them to pay more. The Sacklers took
a lot of money out of the company. A lot of that money is now offshore, and the question is whether the settlement is going to go forward and wipe out the ability of victims to keep trying to go after the Sacklers for their involvement in the opioid crisis.
What would ruling against that plan change in current bankruptcy law, It.
Would change a lot.
These third party releases are a pretty common feature. So for example, the settlements involving the Catholic dioceses involving sexual abuse and the Boy Scouts, they have provisions like these, and the arguments for them is that's the only way we're going to achieve this sort of global pieces. If we say we're settling everything, there's this big pot of
money that will now be available for victims. And without this sort of tool, a lot of people think that big overarching settlements like that will no longer be possible, or at least not as easy to achieve after the break.
Will the Court limit the power and reach of federal agencies? Greg The Supreme Court is also reving several cases regarding the reach and power of some federal agencies. The Consumer Financial Protection Bureau CFPB as it's known, is under scrutiny for the way Congress delivers its funding. What is the criticism about the current funding model?
So the argument is, and a federal appeals court found that the bureau's funding system is unconstitutional because the money it uses wasn't appropriated by Congress. The CFPB gets its money from the Federal Reserve. In fact, the CFPB sort of gets to set its own budget. It tells the Federal Reserve, here's how much we think we need and up to a certain cap. And that amount has always
been approved. It's always gotten that amount of money. And so very conservative appeals court, the Fifth Circuit, said, the Constitution says that you can't spend money unless it's appropriated by Congress, and that hasn't happened here. And one of the issues in the case is this appropriation's clause until now has only been used as a restriction on the
executive branch. So the idea behind it, a lot of people will argue is that you know, you don't want the president or some agency spending money unless Congress says it's okay, because Congress has the power of the purse. In this case, this is more of an argument that it actually restricts Congress, and it restricts its ability to set up this agency the way it wants with the level of independence that it wants. The Court heard our
arguments back in October. In this case, they were perhaps surprisingly pretty skeptical of the argument that this is an unconstitutional system. It's a novel argument, and it didn't really seem to gain a whole lot of traction. So at least coming out of that, it felt like the Court was going to uphold the CFPB's funding system and let the agency continue as.
It has greg the CFPV is actually a relatively new agency meant to be a consumer protection agency at the level of the federal government, with federal powers. Why did they create this rather unusual funding structure where it does seem to do a little bit of and then run around the congressional appropriation process.
Well, this was set up in the aftermath of the two thousand and eight financial crisis, and Congress really wanted to give it independence and have it be shielded from political pressures so that they could do the work of protecting consumers. And so ever, since then, opponents of the
CFPB had been challenging various aspects of it. One issue the Supreme Court dealt with a few years ago was the notion that it was too hard to fire the director of the CFPB, and in fact, the way it was set up when Donald Trump was president, for the first couple of years, he had a director of the CFPB who was appointed by President Obama, and the Supreme Court in that case ruled that the president had to have the ability under the Constitution to fire the director
for any reason. And since then the director has been somebody who was appointed by the President.
Greg an agency that's been around a lot longer than that, the Securities and Exchange Commission. The SEC obviously regulates a Wall Street is also having the breadth of its already scrutinized by the Supreme Court Justice is this term, what is the key enforcement tool that is under fire.
This is the case, and there are multiple arguments, but it's all focused on the use of what are known as administrative law judges. They're in house judges, and the SEC, like some other agencies, when it presses an enforcement action, say somebody violated or some company violated the securities fraud laws, they can choose to go before one of their in
house judges or they can go to federal court. And the argument, the main argument that's being made in this case is when you go to one of your in house judges, you violate the constitutional right to a jury trial. So this is a case of a hedge fund manager who is accused of to frauding investors and he says I have a constitutional right to make my defense to
a jury. And there are a couple other arguments too, also having to do with how easy it is for administrative law judges to lose their jobs to be fired. But the main argument they've focused on at the court was that jury trial right, and it did seem to
get some traction. There's certainly a possibility that the court will say, at least when you are the SEC is trying to get money from somebody seeking civil penalties from somebody, the Constitution's Seventh Amendment guarantees them the right to have a jury trial.
There are two cases coming up the challenge something called the Chevron doctrine. What is that exactly and how is it being challenged?
That is a really really important doctrine for the field
of administrative law. This case called NRDC versus Chevron from back in the nineteen eighties probably the most cited case when you're talking about fights over regulations, and what it says is basically, if there's a statute and the statute is unclear, like how much an agency can do, for example, how much power it has if the agency interprets a statute says it means X, the courts will defer to the agency, let it decide what its authorities are as
long as that interpretation is reasonable. And over the years that has given to agency is a fair amount of power to kind of define the scope of their missions. Now, when the Chevron doctrine was put into place, it was something that tended to help conservatives and republicans. Justice Inton and Scalia was a big fan of the Chevron doctrine, But over time it's become something that is anathma to
conservatives and folks who don't like big government. So this is a case Oral said, actually two cases where the Supreme Court, which has sort of been wheedling down Chevron over the years, is going to consider overturning the Chevron doctrine and saying Nope, the agency doesn't get any special difference.
We're just going to interpret the statute and if we think it means why, it doesn't matter whether the agency thinks it actually means X. If the Court goes there, it certainly has the potential to make it much harder for agencies to issue broad regulations and do other things that affect American business.
Right, this strikes me as having enormous implications. As you say, in other words, every time it agency makes a regulation, court could come along and second guess the agency doesn't that completely disempower the federal agencies.
I would maybe not say completely, but it certainly would take a lot of power away from them. There are
narrow ways that the Court can decide this case. They don't have to go all the way to overturning Chevron, but certainly if the Court were to overturn it, you add on to it, there's a ruling from two terms ago involving the Environmental Protection Agency, where the Court said, hey, if we're talking about whether Congress has given an agency a major power, this is known as the major questions doctrine.
If we're talking about something that has a major political or economic impact, like say, climate change regulations, the Supreme Court said, we're going to require Congress to be very clear, very explicit, that it did mean to give the EPA or some other agency that power. And in that case, the Supreme Court said they hadn't done that.
When we return, the case against former President Donald Trump makes its way to the US Supreme Court.
Special counsel Jack Smith is asking the Supreme Court to decide whether Donald Trump has immunity from criminal prosecution for alleged crimes he committed while in office.
Greg The cases against former President Donald Trump also continued to move forward. Notably this week we saw Special counsel Jack Smith ask the Supreme Court to rule on Trump's argument that he's immune from prosecution. How is this unusual?
It's unusual because the last thing that happened on this issue was that a federal trial judge ruled against Trump, said you don't have the absolute immunity that you're claiming. Trump then appealed to the Federal Appeals Court, the DC Circuit,
and the Special Council. Jack Smith is now asking the Supreme Court to bypass the appeals court level, go ahead and decide this issue itself, rather than having it go through the normal course of an appeals court decision and then the losing side appeal up to the Supreme Court.
What are the implications that a Supreme Court ruling one way or the other could have on this case.
It could kill the case if the Supreme Court rules against jack Smith. This is pretty much an argument that Trump can't be prosecuted for anything stemming from efforts to overturn the election or January the sixth. Right Now, trial is scheduled from March fourth, and part of the reason Jack Smith that he went straight to the Supreme Court was that waiting for the DC Circuit to decide the case and then going to the Supreme Court could take many months, and he wants to move very quickly. Donald
Trump wants to delay things. He's tried to get the trial pushed to after the election, and Jack Smith wants to have a trial as soon as possible and with the election looming in November. He's making the argument that it's in everybody's interests for us to have certainty on this issue as soon as possible.
What are the historical precedents here? Is it common or uncommon for the Supreme Court to sort of jump the line and take a case before it sort of made its way through all the different levels of appeals courts?
Historically it's uncommon, although it's happened a lot more in the last few years for various reasons, in both the Trump years and now.
The Biden years.
Probably the best precedent for it, though, is back in the Nixon tapes case in the nineteen seventies.
That was a case.
Where the Supreme Court reviewed a federal district judge's conclusion directly, and there was a criminal trial that was going to be on hold depending on what the Court did with regard to requiring the Nixon tapes to be turned over, and the Court ruled in a matter of a couple months it agreed to take up the case skip over the appeals court and issued a ruling that let the trial go forward.
Greg in that same case in the DC Court did judge put down a pretty tough gag order on the former president, barring him from commenting about the process and the personnel in the court. Trump is obviously fighting this, saying that he's essentially in the middle of a presidential campaign and he should be allowed to say what he wants to say as he seeks to return to the presidency. What are the chances that this particular issue could make it all the way to the Supreme Court.
There's certainly a significant chance.
Where at the point now where we're waiting to see if Donald Trump will appeal to the Supreme Court. The DC Circuit in that case largely upheld Judge Tuckkins gag order against Trump.
The judge overseeing former president Donald Trump's January sixth case, has reinstated a gag order. The judge temporarily halted it earlier this month after his appeal. Prosecutor save Trump has published intimidating posts on social media about prosecutors and potential witnesses. Trump has said that the gag order violates his right to free speech.
The gag order as it stands now restricts what he can say about witnesses. It gives him a free hand to criticize the judge gives him a free hand to criticize Jack Smith, and there are some things he can talk about with regard to the case, but as you indicated, still seems to think that goes way too far in terms of restricting his First Amendment rights, particularly since he.
Is a candidate.
So the next thing that could happen there is he appeals to the Supreme Court.
Greg in Colorado, one of a series of Fourteenth Amendment cases looking to keep Trump off ballast is still underway. What would happen if the Colorado Supreme Court ruled against Trump?
That almost certainly would go up to the Supreme Court. The question there is this insurrection clause. It's in the Fourteenth Amendment, put in there after the Civil War, largely thinking about people who are involved in the Confederacy. And the question is can it be applied to Donald Trump with regard to his actions on January the sixth, And if it can be, who makes that decision? How does that happen? Do you need like a criminal conviction before
it kicks in? So there are a lot of questions there, And as you said, there are a number of cases out there. There are four significant ones out there where folks are trying to keep Donald Trump off the ballot. Not entirely clear the Supreme Court is going to need to jump in or decide it wants to jump in.
But almost certainly if a state court, say the Colorado Supreme Court says Donald Trump cannot appear on our ballot because of the insurrection clause, that would almost guarantee the Supreme Court would have to take that up.
And finally, Greg turning to the Supreme Court itself, after a series of ethics controversies, the Court adopted a code of ethics for itself for the very first time.
What does that entail?
It entails essentially putting in a different form the rules that the Court says it's always abided by. The Court was very clear when it did this that it's not changing anything, and in fact, it led it with a statement that said that we're dispelling the misunderstanding that we act as though were unrestricted by any ethics rules. So it put them all in a form of a code of conduct that said a judge should do this, and this, do that, and all the justices signed it agreed to
abide by it. There is importantly no real enforcement mechanism for it. So one thing that some folks were hoping for was that there would at least be a panel of outside judges, at least an office within the Supreme Court that would vet complaints about the justices.
And there isn't any of that.
It remains up to the justices and really up to the individual justices to decide their own course of conduct.
You know.
One of the issues with say like recusals, where you know you have questions, you know, should to go back to January six? Should Clarence Thomas recuse from the January six cases because his wife was involved in encouraging efforts to overturn the election? And that decision, based on the Court's current practice, is going to be made by Justice Thomas himself. There's no mechanism for the Court as a whole to make that decision about the activities of one
of the members. So it did address one thing that people said the Court should do. They now have a code of conduct, But in terms of actually changing any behavior on the court, not at all clear that's going to happen.
Is there any chance that the existence of this quote of contact would lead to investigations or probes of some of the justices activity you mentioned, particularly Clarence Thomas, who's there's been some articles written about gifts he's taken from various wealthy folks. You mentioned his wife, Jenny Thomas, of course, was heavily involved in some of the conversations around overturning the election. Any reason to think this quote of conduct would lead to investigations into that conduct.
Craig, There's just not a mechanism in here for that sort of investigation. So I think the answer to that has to be no. Now, will this have some sort of prophylactic effect? That might some of the criticism of things justices that have done have some sort of effect on them. Do they sort of accept that maybe some of the things they've done have cast the court in
a bad light. Maybe it's hard to say, and I think kind of the proof will be in the pudding in the next year or two, as we sort of see whether or not justices are materially changing the way they're going about doing things. And with regard to what you're saying with Justice Thomas and his wife, no sign that either of them are backing down from the positions they've taken. But who knows, Maybe things will change. Thank you very much, Greg, my pleasure. Thanks for listening to
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Email us questions or comments at Big Take at Bloomberg dot net. This episode was produced by Sam Gabauer, with production assistants from Michael Falero and Federica Romaniello. Hilda Garcia is our engineer. Our original music was composed by Leo Sidron. I'm Craig Gordon. Will be back Monday with another Big Take. Great Weekend, b
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