Advantage Twitter in Lawsuit Against Elon Musk

The lawyers for Twitter have come out of the box hot, and I think everyone expected them to. The relief that they're seeking, which is also not surprising, is a specific performance order essentially compelling Musk to go through with the deal. And they would have asked for that regardless of whether it makes sense for Musk to end up owning Twitter or not, because that gives them the maximal bargaining leverage.

If they were to get that order, and he really doesn't want to own Twitter, he can, you know, try to bargain his way out of it in exchange for a significant settlement payment. So the relief that they've thought

is exactly what everyone predicted they would seek. What they have attended to doing in the complaint quite effectively, is to make sure that they are beginning to state their case about how Twitter has all along been duly compliant with its obligations under the merger agreement, in contrast to Mr Musk's contention that they have not been forthcoming in

delivering of data. I think a lot of people doubted Musk's assertions on this, and the complaint sort of lays out a little bit more that many of Musk's demands for data were actually met by Twitter, and he essentially kept escalating them and making them more frequent, not even really reviewing what they had already given him, until the point where that basically said, now we're not going to give you any more. We've got to protect information of

our clients and customers and so forth. So I think that that was important because it was going to be important for Twitter, even though they're the plaintiff in this lawsuit, to be able to fend off arguments from Mr Musk that Twitter was in breach first. I don't view the complaint as being withering or sarcastic, but it did go out of its way to place excerpts of various tweets

and responses, including poop emojis. In the complaint itself, largely, I think, just to signal how exasperating it has been to deal with the Musk team on this, particularly as it became more and more apparent that Mr Musk was really just looking for an escape hatch to try to dive out of and try to find some pretextual reason

not to go forward with the transaction. It says Musk apparently believes that he, unlike every other party subject to Delaware contract law, is free to change his mind, trash the company, disrupt its operations, destroy shareholder value, and walk away. Yes, so that is a fairly strong statement in the complaint.

And and then it's followed up very close to the end of complaint with a one sentence paragraph that that says something to the effect that, you know, Mr Musk must believe that his entire process with Twitter must be

just some elaborate joke. And I think that that is an important set of inclusions into this complaint because when it comes right down to it, you know, the Delaware courts or the top business court in the country, and for good reason, they have a reputational stake in saying, look, we take contracts and contractual obligations seriously, and if your cavalier or un serious about getting into a significant deal and then expect to essentially waltz away into the sunset

with no repercussions, you're in for a fairly unpleasant surprise. That Delaware at least would like to think of itself as the century that allows people to enter into contracts and feel comfortable that the other side is going to live up to their obligations because a Delaware court is

standing there ready to enforce them. And so I think that some of the more animated parts of this complaint really are designed to tap into what everyone sort of believes that Delaware prides itself is being the business law court that you can rely on that is going to be willing to, you know, make those difficult decisions to say, yeah, we're going to either force someone to go through with this contract or have them see significant repercussions if they don't.

Specific performance is a big ask to Delaware courts often, you know, order specific performance of a contract like this. Yeah.

As a general matter, in contract law, the usual rule in the United States is money damages for breaching a contract but in situations where it's very, very difficult to come up with those dollar values on how you would even compensate someone, then courts have always reserved their so called equitable discretion to say, Okay, we're just going to actually issue a court order forcing you to make good

on your promise. Now, a lot of contracting parties, and this is true of the Twitter Musk deal as well, put in a paragraph that says, by the way, both parties hereby acknowledge that it would be really hard to come up with money damages, and therefore, if there's a breach by either side, the other side will be entitled

to seek specific performance if they want it. Now, there's kind of an interesting question about whether that kind of provision has an effect on when and other under what circumstances a court will say, Okay, we're going to take their invitation to do it. Some courts just say no, that this is up to me whether to do this

as a judge. But the Delaware courts have definitely been willing to look at a contract, take those representations that are in the contract, and say okay, yeah, we are now more willing to enforce this contract with an injunction as opposed to money damages. Now the Chancellor who is getting this case. Chancellor McCormick, very good judge, incredibly smart,

hard working, sharp judge. Hasn't been on the court for a long time, but she's been on long enough to issue some pretty good opinions and people have a high regard for her. One of her opinions that she issued did exactly what Twitter is hoping that she'll do this time.

A buyer god weak need about a deal that they had entered into it was a much smaller deal, and tried to back out of the deal, similarly to Mosque, citing various types of pretextual reasons why you know things were going to fail, the financing was going to fail, And Chancellor McCormick was just unsympathetic to those claims and

basically said, look, you brought that upon your solve. You're the one that breathed life into your current failing of financing because you didn't want to go through on the deal. So you sabotage your own deal. Well, guess what, I'm going to issue an injunction that forces you to go through with it anyway. So I think that the draw of Chancellor McCormick. Hearing this case, that was probably welcome news to Twitter, probably another source of a concern and

a headache to Mr Musk's attorneys. Matthew Shettenham, a litigation analyst for Bloomberg Intelligence, gives Twitter a six chance to win specific performance. What do you think the chances are. I think the chances are at least that And I would say that the types of situations that could derail specific performance, I think are fairly remote here. The one issue that could cloud things up a little bit is

how does that injunction get administered? Even when a court is inclined to issue a specific performance decree, it doesn't necessary only want to sign itself up for a year's long babysitting service of the parties themselves to try to superintend and oversee the process of closing the deal. And so that can sometimes be a reason not to grant

specific performance. And you know, in this instance, it's conceivable that a judge might say, well, you know, boy, if I compel performance, do I then have to be the person who then wrangles all the banks into court and tells them that they have to lend on this deal. Maybe maybe not. Chentleen mccorma didn't even bother doing that. In the other case, you just said you gotta go out and get your financing. So that's one potential obstacle.

There's been some speculation that Musk might just ignore in order for specific performance. I doubt that that is going to happen. It would be absolutely unaffront to this reputational stake that the Delaware Cords have in being serious of

about enforcing contracts. And because Musk owns so many assets that are within the jurisdiction of Delaware, largely in the form of stock of other companies that he owns that are Delaware companies, it would be not terribly hard for Chancellor McCormick to say, Okay, look, if you don't want to comply with that, then we will start a civil contempt proceeding and I can fashion any remedy I want, including the seizure of your stock of other companies that

you might own. Now, that is definitely the nuclear option, but I think most people understand that nuclear option is there, hardly ever gets used because most people basically believe the Delaware Chancery Corps. So, you know, I think that there are some folks who are kind of discounting the likelihood of specific performance because they just think Musk is gonna ignore a specific performance decree. I don't really share that concerns.

I think that if the decree comes forward, he's going to comply with it, and it'll be pretty clear that it's going to be in his best interest to comply with it. But does Twitter really want Musk to take over the company or at that point would they come to some kind of agreement, some monetary agreement that I think is exactly the end game here. It Maybe we

don't know for sure. It may be that the vanity purchase that Elon Musk was interested in in April is still a vanity purchase that he's interested in, and he's just trying to get a better price. And if that's the case, then the settlement will take the form of

a recut deal. One of the things that is starting to push kind of in opposition to that possibility is the fact that the relations between pretty much everyone at Twitter and Mr Musk have so soured that it's unclear whether, you know, if you were to take hold of Twitter and go into corporate headquarters one day, there'd be anyone left to work with him, So so it may well be the case that he doesn't really want to own it.

If he did, it would be in an even worse shape because everyone will be bailing and jumping ship, and it may just be better to keep it in the hands of the distributed public investors at this point. And if that's the case, then Twitter will be armed with a specific performance decree, but they will sit down and bargain with him and say, okay, now that you know what the disagreement point is here, right that if you don't agree to a hefty settlement with us, we're basically

going to enforce this against you. Uh. That is essentially going to loosen up the purse string of a settlement payment that Elon must would be then willing to pay to just walk away and wash his hands entirely of this unpleasant episode. Finally, Twitter says that it can do

this trial in four days. Is that possible? Likely? It is not only possible, um, but this happens routinely in these expedited proceedings in Delaware court, and so one of the um one of the reasons that Delaware is so favored as a business litigation and venue is not just because of the quality and the predictability of the judges, but also because they basically make themselves available in cases that are UM, you know, critical time critical to adjudicate

these cases quickly to essentially render an outcome. And I think for Twitter, which at this stage is now sort of in this UM incredibly unpleasant state of limbo in which you know, people are quitting, there's uncertainty about what's going to happen, it's pretty clear that they want to move forward, and the four day trial for most of the facts that are associated with this case, you know, probably is not unrealistic UM in any regard because quite frankly,

many of the back and forth UM interactions in this case have ironically enough occurred over Twitter, so they're out there, they're publicly known. The one possible exception to this that Must you know, alluded to obviously in a in a cryptic tweet himself, was you know, whether that's going to open the Pandora's box of all the data feed UM inputs that Twitter has in order to determine what the nature of the alleged bot account problem is inside Twitter.

I doubt it will get that far. I suspect that the way that the whole you know, spam account and body account thing has has evolved, and this is in the in the complaint as well, is that you know, Twitter had a lot of discretion on on how to

deal with that data um provision process. They were given that discretion in the contract, and and the judge is likely just going to limit her attention to whether they abuse their own discretion, and that's not going to require a deep dive into what was it gigabytes petty bytes of data that are cited in the complaint. So yeah, I think they're going to be able to do this in four days. But make no mistake, there are countless attorneys on both sides that are now gearing up for

trial because who canna happen quickly? They've got about six weeks before, you know, things are going to get real in Delaware. Thanks Eric. That's professor Eric Talley of Columbia Law School coming up next. What has the January six Committee proven so far? This is Bloomberg. The House committee investigating the capital attack on January six is holding its

eighth public session next week. That was expected to be the finale, but now the committee is mapping out steps beyond next week's session for continuing its investigation, including possibly holding more hearings. What kind of a case has the committee presented against former President Donald Trump so far? Joining me as former federal prosecutor Kevin O'Brien, a partner at Ford O'Brien Landy, what is your take on what the committee has proven so far as far as former President

Trump's involvement. In January six, the hearing was truly impressive, the way they weaved all these strands together, and they clearly have a theory, which is the Trump is responsible for everything. I think Liz Cheney has that wonderful line that she repeats, but he knew the mob was angry, he knew they were armed and dangerous. Uh, and he sent them to the capital anyway, which pretty much I

think encapsulates the theory. I think from the standpoint of a criminal prosecution, though there's still a number of problems. You know as someone who's tried criminal cases, that the reality is much different at a trial. Fewer things are admissible, harder evidence is required, and there are certain legal requirements you need to satisfy before you can even get the

case to trial. I'm concerned that and I think most people would actually admit this if you ask them, knowledgeable people, even that they haven't made out a case that there was a conspiracy between Trump and the mob on January six.

No one suggested yet that he directly or indirectly reached any agreement when any of the leaders, any of the Proud Boys or oath keepers, for example, to storm the Capitol or wreak violence on the Capitol, or do anything, for example, to compel My Pence to undo the electors and put in a Trump approved slate of electors that would make him the president. There's been no proof of that. Now, you don't need that in a criminal case. You don't need a conspiracy, but you do have to have some

link to the violence on that day. Otherwise you're it's like, you know, Hamlet playing Hamlet without the ghost. You're talking about a bunch of treason as clerks like John Eastman and people in the White House coming up with these

theories that were wrong and get legal. But if that's all there is, and those all fell flat, by the way, because cooler heads prevailed even within Trump's immediate orbit, if that's all you have, then you have a violation of law that is somewhat technical, and I think it's unlikely or at least there's some significant doubt whether a case like that would really appeal to a criminal jury. And keep in mind you're talking about an indictment of the

former president. You need to have a link with the violence to make people stand up and say this was wrong, this is shocking, and we're going to hold him accountable. And and and again, the most obvious way to do that is to make him a co conspirator with the people who led the riot. And we haven't gotten to that point yet. Now some people have suggested we'll get there. I mean, we'll see. I guess there's at least one more hearing, maybe several more. But but that's that is

that is a problem. But I think there is another way to make the riot part of a criminal case against Trump ahead, So no, um, I'll pick up with that. Um. It seems like they're relying a lot on his tweets, which don't which don't say let's have a march, let's stop the steel, let's go to the Capitol, but don't

see anything. But and also even his his his speech that day, you know, sort of went around in circles as he talked, talks often in circles, and at one point he says, you know, I want to do it peacefully, something like to that effect. So it seems like there is nothing directly from him unless they get one of these people to cooperate. I mean, I tend to agree

they need to have a solid case on the score. UM. They need a witness, preferably from the inside, to come forward and say, yes, Trump had a conversation with X, or with Y, or a representative of Trump, maybe Mark Meadows, who's up to his neck in this thing. Very canny the way he never, you know, comes front and center, but he's and he says different things to different people. He's a little like Trump that way, but he's in

the thick of it. They need someone like that, um as a proxy for Trump having meetings and phone conversations where and Sun January six, there are planned out that that would be the that would be the best type of evidence to have, and so far they don't have it. UM. I mean, there is another way to do this. I was starting to say, I think one theory, and it's been suggested you don't need a full fledged agreement with

the rioters. Instead, you can take the position, which is again part of what loc Cheney has been talking about. That Okay, the whole goal here was to pressure Pence.

And when all these academic efforts failed, uh Eastman, you know, Clark and the Justice Department, when all this stuff went nowhere and they were sort of comically bad, he then realized the only way he was going to get pens to do his bidding was to put him in fear of his life and have a riot, you know, and sue or something so forceful Pence would be required to do Trump's bidding. Now that's a crude way of looking at the world, but it probably is Trump's view. The

problem is, again the predicate is a little weak. I mean, we don't despite what Cheney said on Tuesday, the evidence that Trump knew the crowd was armed is pretty thin. The evidence that Trump knew they were dangerous is less thin, because in part he was the one working them up. But to establish all these things you need some witnesses. You can't have commentators speculating or providing their inferences, and

we haven't heard a lot of that evidence. You know, you're you're getting inside his head and saying this is what he must be thinking. But you know he's got defenses. He can say, I never intended for there to be a riot, as you said, Trump pointed out that this should be peaceful at various points. He didn't know what weapons they were carrying. He was there to give a speech, He gave a speech, and then he got in a limo and left. So how can he be responsive for

everything that ensued thereafter? Lisz Cheney uses legal phrases at different points since the beginning of these hearings, and on Tuesday she said, basically, he can't hide behind the defense of being willfully blind, which is a legal term. So tell us what she was getting to their Well, she's absolutely right. There's a doctrine in the criminal law that you can show intent if you willfully disregard manifest facts which you know to be true, and those facts lead

to criminality. You know, judge will put it to the jury this way when he or she gives that charge. A defendant can't stick his or her head in the sand. Defendant is responsible for the natural consequences of what he says. For example, and if he knows that a mob has worked up and on the verge of violence, and he says certain inflammatory things. He can't turn around later and say, well, I never intended that they would go out and lynch X Y, even in the absence of a clear intent.

And that's what the conscious disregard charges all about, and it's used all the time, and I think it would be probably used here if Trump were indicted. The problem what is the intent you're talking about? She's talking about a problem of intent, And you can use what I've just tried to summarize to buttress your case against the defendant and show that in this case, Trump had that intent but intend to do what. Once again, that sort of begs the question was Trump responsible for the riot?

Did he intend that they would storm the capital and threaten Mike Pence and so forth? And it still brings you back to the same issue that the link between Trump and those things doesn't appear to me yet to be that strong. And what the case really needs is an insider, someone like Meadows or someone like Bannon or Roger Stone, although they'll never get Roger Stone's yeah he's in a different reality, that's true, but someone like that, And and here's here's the point, June. This points to

something institutional it's wrong about the case. The January six Committee doesn't have the weapons to compel a witness like that to come forward. They can't say, and we've got you on X y Z crime. Unless you come forward and come clean and make a hundred percent truthful, accurate and complete proffer of everything you know, you're going to go down. Only the Justice Department can do that. And I think as people who have pointed out that Andrew Weissman had this piece in the New York Times, you

may have seen us. And where is the Justice Department? Why are they, for example, begging the committee for its transcripts. They should have their own transcripts. They should have a grand jury investigation creating transcripts that no one else can see except the criminal investigators working for the Justice Department. They're the only ones who can break through. Liz Cheney, brilliant as she is and great as this committee has been, is not going to be in a position to break through.

I don't believe and obtain a witness like this. Could the Justice Department charge Mark Meadows and then try to flip him, you know, That's what they should be doing as we speak. They should be thinking of ways to make the people around Trump respond to their inquiries in a truthful way. It's speech that every prosecutor is seen other prosecutors give hundreds of times. You know, it's the it's called the crossroads speech, Mark Meadows, You're on the horn.

You're at a crossroads in your life. You can either be indicted and serve a substantial term in jail, or you can get out of this and go on with your life. What's it going to be? Now, They've obviously had those discussions with all these low level rioters and stuff. You know, these these guys that come in from Idaho and say, gee, I believe Donald Trump that we had

to save the country. That's why I'm here. It's obviously worked with those people, But are they working their way up the chain to make the same pitch, just in a more sophisticated way to the higher ups. I hope so. I hope Andrew Weisman is wrong that they've been sort of sitting on their hands. But you know, it's going to be a challenge. I think this January six committee has been so successful it sort of took the Justice Department by surprise, and now they're playing catchup and that's

not a position they should really be in. They should be leading, which is typically what happens in these cases. Typically the Justice Department comes in, they blank at the territory with grand jury subpoenas, and then they said, everyone else, back off grand jury secrecy. We can't tell you what we're up to. It's a violation of federal law. See

Federal Rule six e grand jury secrecy. You got a way to We're done, and that usually ticks off state Attorney general, ticks off the sec But that's the way it works in most of these cases. But evidently they're not doing that here. This does focus attention on the Justice Department puts a lot of pressure on them. I want to read something that Larry Tribe said, and you

tell me whether you agree. So the former president's direct responsibility for the riot, for the insurrection is now much easier to prove, and it would be increasingly problematic for the Attorney General not to authorize a full blown investigation into the president's direct responsibility. Do you agree. I think the a G has been trying to set an example to show that the Justice Department is above politics, unlike

during the Trump administration. Yeah, the Justice part is doing a great job, you know, generally speaking, but on this hot potato, and that's what it is. This is tremendous headache for the Justice Department, given all the other things they have to do after Trump to restore faith and integrity of the Justice Department. It's a tremendous headache a because they're going to be blamed no matter what happens.

Be the case is really his tribe. I think was suggesting they're quite and Weissman was in his piece quite massive. All these little strands are subtle and difficult to capture. All these witnesses have their agendas. Getting the Trump true believers to tell the truth is enormously difficult. There aren't that many Cassidy Hutchinson's around, unfortunately, and it is a very difficult case. And and keep this in mind, it's being conducted. The d o J investigation is being conducted

in broad daylight. Usually when you start an investigation. All right, so I do a lot of secure these laws and this and this is how the sec or the U. S. Attorney's office works in a securities case. Someone a disgruntled investor, let's say, sends them a tip and it's confidential, and they have months to work on the tip. They gather all the records, trading records, securities records, massive recked tax returns, everything.

They have the paper trail before they even begin, and then they start reaching out to witnesses and until they reach a certain level, no one knows this is going on, so they can operate with tremendous freedom of movement. This case is completely different. It's all been vetted. The January six Committee has done do good a job. They're not going to have any benefit of surprise. They're not going to have any secrecy, and that adds to the complexity.

But as Professor Tribe was suggesting, they have no alternative but to go forward and pursue this. It's become a much bigger deal. And I think they saw it at the beginning of this process, but it's on their doorstep. They have to step up to the challenge and do this right. It's going to take a tremendous amount of talent and time and resources to do this right. And then at the end of the day, you've got policy questions.

Should this guy even be indicted given the impact it's going to have on the country, Which Lord knows is suffered enough. She might say those aren't easy questions either. But to just get to that point where you have a choice indict or not indict, it's going to take a tremendous amount of work. And you know, they've got to have the will to undertake it and do it aggressively and do it in the right way, and they can't let political considerations interfere with that resolve. Um, They've

got to treat it like any other case. It's it's going to be hard. Thanks so much, Kevin. That's Kevin O'Brien, a partner at Ford O'Brien. Landy progressives have been pushing President Biden and Senate Democrats to move faster on judicial nominations as the mid terms threatened their slim Senate majority, joining me as an expert on the judiciary, Carl Tobias,

a professor at the University of Richmond Law School. From what they understand, Biden and the Democrats are on track to leave more than sixty judicial vacancies open at the

end of this year. I think that's possible because right now we have sixty six at the district level and eight at the appeals court level, and There are also a number of future vacancies where judges make it contingent on someone being confirmed for their position, and so it is conceivable if you count all of those that they will not be a whole lot lower at the end

of the year. We've seen how important the courts are, and progressives are saying that Senate Democrats should change some of the rules the way the Republicans change the rule, one being you know a simple thing to schedule more nominees at each hearing. They only have hearings every two weeks that the Senate is in session. Typically there are one or two appellate nominees and three or four, sometimes five district nominees at each hearing, and so you could

have more appellate nominees at a particular hearing. I think another proposal is to have more frequent hearings instead of every two weeks, have them every ten days or even one a week, And so that is a possibility that has been proposed. Also, tell us about the blue slips, because progressive say, let's get rid of the blue slip

for district court nominees. Yes, that's another possibility, and I think Chair Durban has tried to replicate what the Republicans did during Trump's time and essentially said what's good for Republicans when they have the majority is good for Democrats when they have the majority. And so has said that blue slips will not apply to Appeals Court nominees because Senator Grassles chair said there would be an exception for

Circuit court nominees. And one way to move more quickly is to abolish the blue slip for district courts, But so far Senator Durban has said no, and I think he knows that that would drive the spiral downward even further, and so I think that's the problem for him. That's uncharted territory. It certainly would make it easier to nominate and confirm candidates for red states, and very few of those nominees have come from the White House so far.

There's been plenty of vacancies in blue states and that has kept the White House more than busy. Republicans have changed the rules for judicial nominations a couple of times. So why are Democrats so reluctant to change the rules when there's so much at stake? Why don't they make their own rules? Especially when Lindsay Graham has sort of promised to change when the Republicans take over. If they

take over well, and so has Mitch McConnell. He said that just about uh a week ago or so in Kentucky that he will scrutinize much more closely than Democrats have the nominees if the Republicans take the majority in the midterm election to November. And so you're correct, but Durban also recognizes if that happens, that it could become even more draconian and the process could become even worse if Democrats were to use those kind of tactics now,

so I think he's keeping his powder dry. But certainly he could schedule either more people on hearings or schedule them more often. It does put a strain on the resources of the Judiciary Committee, which are rather limited, but it would be possible to do that, and so we may see it. Um. He hasn't said yet that he will, but he could. And but the calendar is difficult now if you look, I mean most of August the then

it traditionally has been out. They could stay later when they come back at Labor Day from the August break, they'll want to go campaign because the third of them will be up or they'll be open seats in their states, and so they will want to leave and may not come back to after the elections. But there are also the possibility to be lamed up after the November eight midterm elections, and that could run all the way till early January, so there could be more hearings and more

nominations and more confirmations. Then is there a problem with the Senate Majority Leader Chuck Schumer scheduling floor time or can he do that if it's important? He can do that if it's important. Part of the problem or the slowness on the floor can be attributed to the limited time that leader and the Democrats have. They basically come in on Monday evening and leave on Thursday evening, and so there's not a lot of floor time, and some of that is going to be used on legislation, but

it is certainly possible. What isn't happening, which was a good tradition both sides followed, was when they come up to recesses to gather together a group of people who are on the floor and vote them route. But now you have to have a cloture vote. Then you have to have the confirmation vote, so each nominee takes an hour, and then then you have to have debate on thirty hours of debate on Appeals Court nominees, and so there

can be a bit of a log jam created. But they could take a week and devote all that week to putting people up on the floor. Is the White House presenting nominees that are less controversial in an attempt to get more through faster? I don't think so. Occasionally it seems as if, um, some of the nominees are less likely to be considered controversial by the GOP than some earlier nominees. For example, UM, you know magistrate judges like uh Judge Pryor for the Seventh Circuit and then

Dana Douglas a magistrate judge for the Fifth Circuit. I think are have you know, strong experience uh and have been judicial system or um been magistrate judges UM before? Though UM, I think to some extent the people For example, Judge pan who was not nominated and had a hearing already being elevated from the d C District Court for a vacancy on the DC Circuit. UH, she is very experienced, has been was a Spirit Court judge for ten years

and then on the DC District Court for a short period. Um. But she is the kind of nominee that we're seeing now um and as opposed to say someone who is has been a federal public defender. So there's some of that, but I don't think it's very um, very prevalent um and to some extent um they don't want to bring forward very controversial people and I don't I don't think they have UM and so UM. Maybe there is some movement of what you're talking about, but it isn't large

quantitatively or qualitatively. They're still all very experience and often very diverse uh in many ways, especially experience um in ideology. Justice Katangi Brown Jackson is joining the court and she's going to face a docket with a lot of highly controversial cases. Will she make a difference on the court because the six to three the super majority has been

basically you know, controlling and doing what they want. Well, I mean, you are buying thirty years of time because she's thirty two or so years younger than Justice Prior, who was terrific justice. But I think her views are are somewhat similar to his and so I think she's likely to be a strong voice. Um, but you're correct, the math is not very promising. And as Justice Brennan used to recognize and did so, well, you have to get the five and so she is likely to be

dissenting on a number of cases. But as she told the committee when she was confirmed, she will take each case on the law and the facts in the particular cases. So we'll see what kind of position she takes, but I expect she will be dissenting a fair amount with the other Democratic appointees, Elena Kagan and Sonya Soto Mayor.

So with this last term where the Republican super majority did away with the constitutional right to abortion, continued knocking down the wall between church and state, took away power from the e p A to curb climate change, put more guns on the streets in major cities. Is there more movement you think to expand the Supreme Court. Well, I think there's discussion and talk about that. The President, I think, has said that he does not want to

expand the Supreme Court. They had a commission. The commission had a lengthy report but didn't make very strong recommendations. But I think there is some more serious discussion, for example, of term limits and their questions about whether that could

withstand a challenge. We'll just have to see. But I do think the rulings we saw, especially the abortion ruling, but others that you just talked about, are on the minds of many Americans, and certainly Dobbs is an issue for much of the American population which does favor the possibility of legal abortions, and we have many issues to address in that area. Thanks Carl. That's Professor Carl Tobias of the University of Richmond Law School. Coming up, Steve

Bannon's trial starts on Monday. This is Bloomberg and that's if the edition of the Bloomberg Law Show. Remember you can always at the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast, slash Law. I'm June Brassel, and you're listening to Bloomberg